Danish KANERIA & Mervyn WESTFIELD
2. A Disciplinary Panel of the Cricket Discipline Commission (Gerard Elias QC, Chair; David Gabbitass & Jamie Dalrymple) sat between 18th and 22nd June 2012, in the Hearing Room of Sport Resolutions UK, to consider Disciplinary Charges brought by the England & Wales Cricket Board (ECB) against Danish Kaneria & Mervyn Westfield.
Ian Mill QC & Nick de Marco represented ECB
Tim Moloney QC & Steven Hourigan represented DK.
M Milliken-Smith QC represented Mervyn Westfield
Tim Moloney QC & Steven Hourigan represented DK.
M Milliken-Smith QC represented Mervyn Westfield
4. These proceedings arise from charges brought in relation to events which occurred towards the end of the 2009 English domestic cricket season at a Pro40 Competition match played at Durham between Essex and Durham. 5. Danish Kaneria contested the two charges brought against him but, on the first day of the proceedings, Mervyn Westfield pleaded guilty to the single charge against him and his case was put back for later consideration of the appropriate penalty.
1 Alleged a breach of 2009 Directive 3.8.5 in that Danish Kaneria induced or encouraged, or attempted to induce or encourage, Mervyn Westfield not to perform on his merits, that is, to deliberately concede a minimum number of runs in his first over of the match between Essex and Durham.
2 Alleged a breach of 2009 Directive 3.3 in that Danish Kaneria conducted himself in such a manner as may bring the game of cricket or any cricketer into disrepute by inducing or encouraging Mervyn Westfield not to perform on his merits.
1 Alleged a breach of 2009 Directive 3.8.15 in that Mervyn Westfield received a reward, resulting from his conduct in the Durham Essex match, which could bring him or the game of cricket into disrepute.
This charge reflected Westfield's admission to the Crown Court (see para 9 below) that he had been paid £6000 for agreeing to deliberately concede a given minimum number of runs in his first over as a bowler in the Durham v Essex Pro 40 match on 5th September 2009.
In essence, therefore, on the facts alleged, to establish the contested charges , the ECB was required to prove that:
1 Danish Kaneria knowingly induced or encouraged Mervyn Westfield not to perform on his merits in the Durham match.
2 Danish Kaneria conducted himself in such a manner as to bring cricket or a cricketer into disrepute - and the ECB put its case on this charge upon the same factual basis as Charge 1, namely that his conduct as shown in Charge 1 brought the game into disrepute.
8. Burden & Standard of Proof
The burden of proving the charges falls on the ECB who bring them. We heard submissions in relation to the appropriate Standard of Proof. We are satisfied that the appropriate standard of proof is proof on the balance of probabilities but, that having regard to the grave nature of the allegations and the consequences of any finding of guilt in relation to them that we should look for very cogent proof before making any adverse finding against Danish Kaneria. The Panel concluded that in reality this meant that we should be sure of any fact before we relied upon it as proving a case against Danish Kaneria.
9. Background Facts
Danish Kaneria is a Pakistani national and a professional international cricketer of great repute and experience. He played for Essex County Cricket Club for 6 seasons between 2004 -2010 as an overseas player. He signed annual undertakings to abide by the ECB's Rules Regulations and Directives whilst registered at Essex.
Mervyn Westfield was a professional cricketer with Essex from 2005 until 2010. In that time, he played 7 County Championship matches and 8 first team one day matches. Westfield was charged by the CPS in November 2010 with accepting a corrupt payment (£6000) contrary to section 1(1) of the Prevention of Corruption Act 1906 and on January 12 2012 he pleaded guilty to that charge. On 17 February 2012, Westfield was sentenced to a term of 4 months imprisonment and the £6000 was confiscated.
Arun or Anu Bhatt is an Indian businessman who, prior to November 2007, had come to the notice of the Anti Corruption & Security Unit (ACSU) of the International Cricket Council as allegedly being heavily involved in illegal betting.
10. Specific Evidence
Alan Peacock is a Senior Investigator in ACSU based in Dubai. We accept his unchallenged evidence that in April 2008 he warned Danish Kaneria that Anu Bhatt was heavily involved in illegal betting and was therefore "highly inappropriate company" for Kaneria to be keeping.
Danish Kaneria told him that he had known Anu Bhatt since mid 2005 and, with his wife, had visited his home in India in November 2007 for dinner. Kaneria told us that thereafter he regarded Bhatt as a "dangerous " man with whom to be involved.
Mervyn Westfield gave evidence to us. His account was obviously central and vital to the prosecution case.
We remind ourselves that there are reasons to scrutinise his evidence with great care - he has admitted his own involvement and may have a reason to lie to implicate another or others, and minimise his own involvement or responsibility. We have borne this very much in mind in considering his evidence.
We remind ourselves also that Westfield's accounts have not been uniformly honest or consistent - putting it straightforwardly and shortly, in various ways and over a period of time, he sought to minimise his involvement and it was not until his final plea to the Crown Court or even, arguably, his evidence to us in these proceedings, that he accepted not only that he had received corrupt money but also that he had not performed on his merits.
Of course, therefore, we must scrutinise his evidence with great care and look for independent support for his account before using any of it against Danish Kaneria.
What did we make of him?
In summary, we are satisfied that in September 2009 he was both vulnerable & naïve - relatively unworldly & unsophisticated. He may well have been going through a phase of self doubt and anxiety - whether objectively justified or not - about his cricketing future.
The key parts of his evidence about events late in August and early September 2009 - essentially the core of the prosecution case - can be summarised as follows:
There is no doubt - and no suggestion to the contrary - that one of the Asian men referred to by Westfield was Anu Bhatt. Indeed, Danish Kaneria admits introducing Westfield to Bhatt in Dukes nightclub and confirms in his evidence that Bhatt was in Durham and attended the match with tickets obtained by Kaneria for him.
Mr Moloney QC invites us to say that because of Westfield's earlier & sustained prevarications and lies, that Westfield is a witness who can carry no credibility and whose evidence is thus worthless.
All members of this panel reject that submission. Not only did we all form the view that in these important particulars, Westfield was plainly telling the truth, we are fortified in our conclusions by other independent evidence which on any common sense analysis strongly supports his core account, from which, it is right to say, he was essentially unwavering in evidence to us.
I refer, of course, firstly to the evidence of telephone and text contacts between Bhatt and Kaneria through the critical days running up to and immediately after the Durham match. It is plainly nonsensical to claim - as Danish Kaneria does - that these are explicable as being mere inconsequential social intercourse with no significance whatsoever. Rather, we have no doubt, they support in material particulars the account of Westfield and evidence the obvious planning required to set up and pressurise - as well as pay off - the man selected to perform this nefarious task of spot fixing.
We would observe, also, that these contacts, both in degree and substance, tend to give the lie to the suggestion made by Danish Kaneria repeatedly that he wished to keep this "dangerous" man at arms length.
Secondly, there is what we might describe as the Geographical Whereabouts evidence - was it the merest coincidence that:
Bhatt was introduced to Westfield at Dukes Nightclub by Kaneria?
Bhatt was present on the ground in Durham because Kaneria obtained the tickets for him?
We have no doubt that the answer is no - and that these are yet further pointers that the core account of Westfield to us is true.
There is a third area of evidence which tends to support Westfield's core account - that is the evidence of the other Essex players to the effect, taken together, that on more than one occasion on coach journeys, Danish Kaneria sought to instigate discussion about spot or match fixing.
We acknowledge that not all the detailed evidence given about this chimes precisely together - but that is hardly surprising given the time that has elapsed. What is striking, however, is the overwhelming impression of most that it was Danish Kaneria who initiated the discussions about ways of making money on the rest of the Pro 40 programme. This, coupled with the evidence of some players of a more direct approach to sound them out, leaves us in no doubt that these conversations and approaches were designed to "test the water" - to see who might succumb to the pressure to make corrupt money.
It is right to record that all the players approached or made part of any conversation did not take the matter seriously. We observe that this was 2009 and very different education for county cricketers exists now from what was in place then in respect of Anti-Corruption training.
We have in mind the further points made, suggesting that Westfield is not to be believed including:
the questions and answers and explanation or lack of it for the money in excess of £6000 in Westfield's bank account;
The 30th August point - it was that day it is suggested that Kaneria took Westfield to Dukes;
On balance, and principally because of the telephone and text message evidence, we favour the view that the Dukes Nightclub visit was likely to have been after 30 August - but we do not make that finding with certainty, However, we conclude, that whenever it occurred, Kaneria introduced Bhatt to Westfield and that this introduction was for the purpose of facilitating betting and spot fixing and not for some innocent social reason.
11. Danish Kaneria
It is a trite but true comment that some of the most cogent evidence for the prosecution often comes from the mouth of the defendant himself.
We have borne in mind the fact that Danish Kaneria is a man of hitherto good character, with good character references, and that we should be slow to disbelieve the account he gives.
However, we consider that in many respects the evidence of Danish Kaneria simply does not stand up to scrutiny and is plainly lies.
We utterly reject his account of the telephone calls and texts to and from Anu Bhatt during the vital days in question. Analysis of the length, sequence and timing of these calls simply does not permit of the innocent explanations given by Kaneria. If, as we find, he is lying about these calls and texts, there can only be one logical reason - to tell the truth would be damning.
Further, we reject as nonsensical Kaneria's claim that his invitation to Bhatt to attend Dukes Nightclub was in order to keep him at arms length or similarly that obtaining tickets for him in Durham was with the same object. Again, we have no doubt that to tell the truth would implicate Kaneria as the link in the chain between Westfield and Bhatt.
There were many other unsatisfactory aspects to Danish Kaneria's evidence - not least the grasp of detailed recollections years after the event when two years before little more than a glimmer of recollection appeared to surface.
However, in the light of our findings as to the significant aspects of Westfield and Kaneria's evidence, it is perhaps unnecessary to dwell any further on the evidence of Danish Kaneria. We reject his basic account that he had nothing to do with any arrangement between Westfield and Bhatt - indeed we are sure that he facilitated it.
12. His Witnesses
We have considered carefully the evidence of Faran Kaneria & Mohammed Afzaal Nasir but conclude that it does not disturb our sure findings in relation to the reliability of Westfield on the core points. It does not follow from our findings that either of these witnesses was necessarily untruthful - as submitted by Mr Mill QC for the ECB, there are a number of possible permutations as to the date of the Dukes Nightclub visit.
We record here that we have considered all the evidence put forward on behalf of Kaneria by way of written statement and taken it into account in reaching our conclusions. We also record the fact that during the hearing and when giving evidence, Danish Kaneria had the benefit of an experienced interpreter.
Having heard and considered all the evidence and submissions made to us, we are left in no doubt that in late August/ early September 2009:
It follows from these findings that we are left in no reasonable doubt that
Danish Kaneria knowingly induced or encouraged Mervyn Westfield not to perform on his merits in the Durham match such that the first charge against him is made out.
Further, it is self evident that such conduct brings the game of cricket and cricketers into disrepute and thus Charge 2 is also proved.
Later today we shall consider submissions in relation to the appropriate penalties to be applied.
Gerard Elias QC (Chairman)
Jamie Dalrymple 22-06-2012
Jamie Dalrymple 22-06-2012