BCCI counsel solved verdict dilemma - judicial commissioner
In what was necessarily a he-said-she-said case, with no concrete evidence and witnesses "hopelessly biased" in favour of their own team, Gordon Lewis, the judicial commissioner, has said that "ironically" it was the BCCI counsel that helped him make his mind up that James Anderson could not be considered guilty.
In his written verdict, which ESPNcricinfo has access to, Lewis has said that he was not "comfortably satisfied" given the lack of audio or video evidence, or a detailed neutral witness, that Anderson was guilty. However, when he weighed up the two vastly different accounts presented by both the sides, it was ironically Adam Lewis, the lawyer representing India and Ravindra Jadeja, who might have unwittingly saved him the dilemma when he made his final submission.
"During that submission Mr [Adam] Lewis posited his 'two push theory' for which there was not an iota of supporting evidence," the commissioner said in his verdict. "And that submission I suspect came from Mr Lewis' frustration in trying to make sense out of two totally conflicting versions of the evidence. It was an effort to find an explanation for the inexplicable, based on the conflicting evidence the tribunal had heard."
It wouldn't have helped Jadeja's case that he "embellished" evidence during his cross-examination. "… The extent and force of that contact is unknown, despite Jadeja's response in cross-examination, that the push was hard and caused him to break stride. That evidence seemed to me to be a recent embellishment, as Jadeja had not previously said this nor had any other witness."
The account of the only "closest to unbiased" witness, Trent Bridge steward David Doyle, wasn't exhaustive. Doyle said in his written statement that he saw Jadeja turn around. "I couldn't see who exactly he was heading towards," his statement said. "As Jadeja was turning, Dhoni stopped him and turned him back and they both then proceeded up the stairs to the changing rooms." When contacted on telephone during the hearing, Doyle said that Jadeja "took one or two steps back towards the England players". He also said that MS Dhoni stopped him and turned him back.
This case was brought to ICC's notice after an incident between Anderson and Jadeja as the players were walking off for lunch on the second day of the Trent Bridge Test last month. India alleged that Anderson had pushed Jadeja in the corridor between the playing field and the dressing rooms. England didn't deny that Anderson had pushed Jadeja, but said he did so in self-defence when Jadeja had turned aggressively towards him. There was no ICC or ACSU camera in that corridor, and the webcam that was there did not work on the day.
The commissioner Lewis didn't consider Anderson guilty because he didn't believe he had enough evidence to go by in a case that carries severe sanctions.
"Essentially, the Indian position is that without provocation, Anderson pushed Jadeja in the back causing him to turn around," Lewis' verdict said. "Jadeja said Anderson continued to abuse him in the corridor and had ultimately pushed him in the back and told him to 'f***ing go back to the dressing room'. Jadeja denies any aggression on his part and particularly he denies that he ever turned around or did anything that could be considered aggressive on his part. To the extent that any of the alleged conduct was viewed by other Indian players and team staff members, they support Jadeja's evidence.
"According to Anderson's version of the incident it was Jadeja who was the aggressor and without provocation. In the corridor, as they approached the steps that led upstairs, Anderson said that Jadeja suddenly turned around and aggressively came towards him and 'got right up in my face'. He said he instinctively put up his hands as Jadeja still had a cricket bat in his hand. He said that he put up his hands in a defensive manner because of the way in which Jadeja came at him. Anderson claims to have been completely taken aback by Jadeja's 'aggressive action'. According to Anderson, Jadeja's action in walking back to stop in front of him caused Jadeja to block Anderson's way and the way of his team mates who were coming behind him. Anderson said he then used his right arm to push Jadeja's shoulder to get him to turn around and go back towards the Indian dressing room. He agrees he said words along the lines, 'F*** off and get in your dressing room'.
"Importantly Anderson denies pushing Jadeja in the back or in any way provoking him after entering the corridor. Obviously one version of the facts must be untrue, but the existing CCTV image is unhelpful and the witnesses hopelessly biased in favour of one party or the other."
Lewis has also explained his thought process in arriving at the decision, and how it came down to guessing what might have happened. "I considered then the different standards of proof pertaining to charges at different levels under the Code, and with a level 3 charge the penalty could be four to eight suspension points or 2 to 4 Test matches. In monetary terms the loss of between $A40,000 and $A80,000 approx. In my view with potential penalties that severe, for me to be "comfortably satisfied" pursuant to Article 6.1, something close to beyond reasonable doubt was required.
"I then turned my mind to downgrading the charge to level 2 pursuant to Article 7.6.5. I considered whether I could be comfortably satisfied that an offence at that level had been committed when the sanction for a first offence potentially equated to between $A10,000 and $A30,000 (the fees payable as half of Anderson's fee in the second test and his payment for a further full test match). When a Tribunal is dealing with someone's livelihood, sanctions of that magnitude in my view, certainly require a standard of proof that is more than on the balance of probabilities and again I was not satisfied that an onus requiring a standard of proof at that higher level, had been discharged.
"As I reflected on the evidence and the final submissions made by the representatives of the parties, I turned my mind to a possible downgrading of the charge to level 1. At this point, Mr. Lewis' final submission became relevant. He was helpfully guessing at what might have happened and inadvertently inviting me to do the same. And whatever a Tribunal should or should not do, is to guess to achieve an outcome. In short I do not know on the evidence, and to the relevant standard of proof, what happened in the corridor leading to the stairway in those few seconds after the batsmen and fielding side came in for lunch. I cannot be comfortably satisfied as to the truth of either version of the evidence."
Sidharth Monga is an assistant editor at ESPNcricinfo