The Marlon Samuels Judgment
Fri, May 16, '08
Below is the full text of the disciplinary committee ruling on the misconduct allegations against West Indies batsman Marlon Samuels.
The document in separated to include the background, the charges, the evidence and the ruling by the committee. Guyanese Justice Aubrey Bishop, who voted against a guilty charge, writes a separate opinion disagreeing with his colleagues.
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REPORT OF THE DISCIPLINARY COMMITTEE
1. On 6th November, 2007, the Chief Executive Officer of the International Cricket Council (ICC) directed the President of the West Indies Cricket Board (WICB) to carry out an investigation in relation to certain allegations made against Mr. Marlon Samuels. The ICC alleged that Mr. Samuels had breached certain provisions of the ICC Code of Conduct Regulations. The WICB was required to submit a report to the ICC on the matter.
1. Upon receipt of the letter from the ICC, the WICB retained legal counsel to carry out its own preliminary investigations. Following these investigations, at its meeting held on February 23 – 24, 2008, the Board resolved to submit the matter to its Disciplinary Committee (“the Committee”). The matter was submitted to us by Terms of Reference dated February 26, 2008 with the full power of the WICB to conduct our own independent investigation and adjudication and in our own discretion to determine our own procedures, subject to adherence to the principles of natural justice. Simultaneously, Mr. Samuels was served with written notification of two charges that had been laid against him.
1. The charges in question were stated to be contrary to the ICC Code of Conduct for Players and Team Officials that prohibited respectively:
a) C4 (ix) [Receipt of] any money, benefit or other reward (whether financial or otherwise) which could bring [Mr. Samuels] or the game of cricket into disrepute;
and
b) C4 (xiv) [Engaging ] in any conduct which, in the opinion of the Executive Board, relates directly to any of the Rules of Conduct i.e. (i) to (xiii) and is prejudicial to the interests of the game of cricket.
1. The particulars of the first charge were that Mr. Samuels had:
received the benefit of the provision of hotel accommodation to the value of Indian Rupees 50,486.70 (US$1,238.00) from Mukesh Kochhar and/or his associates. At the conclusion of the West Indies v. India ODI Series in January 2007, [he] travelled to Mumbai on 31st January 2007. One night of the hotel stay was included in the Series travel and as such, the cost was paid by the BCCI. On 4th
January, 2007 and stayed there at the Hyatt Regency Hotel until Sunday, 4 February 2007, while checking out of the hotel, [he] called Mukesh Kochhar on his mobile and after speaking to him, handed over the phone to the cashier, who was informed by Kochhar that somebody would be sent to the hotel with the cash owing which was Indian Rupees 50,486.70 (USD 1,238). About 30 minutes later a man called Yogesh Arora attended the hotel and paid the bill in cash.
1. The particulars of the second charge were that Mr. Samuels had:
engaged in conduct which, in the opinion of the Executive Board, relates directly or indirectly to the Rules of Conduct i.e. (i) to (xiii) and is prejudicial to the interests of the game of cricket, in that on Saturday 20th January 2007 at 23:45 hrs, while staying at the Pride Hotel in Nagpur, [he] received a phone call from one Mukesh Kochhar and provided to him accurate information regarding the West Indies opening bowlers at the first ODI between the West Indies and India which was played the very next day, the 21st January 2007, in Nagpur.
1. After some delay in the fixing of a hearing date, occasioned by the Committee’s desire to accommodate Mr. Samuels and his legal representatives, the Disciplinary Committee convened at Rodney Bay, Saint Lucia on 9th May, 2008 to hear the charges.
Procedural issues
1. The Committee conducted the hearing in an adversarial manner. The case against Mr. Samuels was put forward by Mr. Derek Jones QC, assisted by Ms. Alana Medford. Mr. Churchill Neita, QC and Mr. Delano Harrison, QC represented Mr. Samuels. Mr. Samuels himself was present at all times and we advised him that he was entitled, if he wished, to give evidence on his own behalf. In the event he elected not to give evidence.
1. The circumstances surrounding the allegations made against Mr. Samuels had been thoroughly investigated by Mr. Alan Peacock, a Senior Investigator of the Anti-Corruption & Security Unit of the ICC. Mr. Peacock had compiled a Report of his investigation and this was made available to the Committee. The Committee had the benefit of all the Statements that had been taken by Mr. Peacock from persons who were in a position to assist with the investigation. These Statements included both the audio recording and a printed transcript of a full and candid interview conducted by Mr. Peacock with Mr. Samuels on Wednesday 25th April, 2007 in the presence of his lawyer, Mr. Neita. The Committee also had available to it the audio recording and printed transcripts of a telephone conversation between Mr. Mukesh Kolchhar and Mr. Samuels. This recording was available because the Indian police had been officially recording telephone calls made by Mr. Kochhar and the recording of the call in question had been turned over to Mr. Peacock.
1. The Committee received in evidence eight affidavits from various persons in Jamaica who knew and were well acquainted with Mr. Samuels and who were well placed to speak about his character and personality. These affidavits and the Statements and materials amassed by Mr. Peacock were all received into evidence by consent.
1. The Committee determined that, in keeping with the standard laid down by the ICC, the charges against Mr. Samuels should not be regarded as having been proved unless the Committee was convinced that they were in fact proven by a standard of proof that was higher than a preponderance of probabilities but one that did not necessarily rise to a standard of proof beyond a reasonable doubt.
1. Mr. Peacock was present in person to be examined on his Report and on such other matters as Mr. Samuels’ lawyers or the members of the Committee wished to question him. It was determined by the Committee that it did not have the power to administer oaths, and that before Mr. Peacock gave his evidence, he should not be required to take an oath but that he should make a solemn declaration that his evidence would be true and correct to the best of his knowledge.
1. Mr. Jones opened the case against Mr. Samuels and then made Mr. Peacock available for questioning. Upon the conclusion of Mr. Peacock’s testimony, Mr. Samuels elected to rely on his earlier statement to Mr. Peacock and on the affidavits adduced into evidence. The lawyers then made oral submissions following which the members of the Committee deliberated among themselves on the issue of whether either or both of the charges was proved. Having found that one of the charges was proved, counsel were then recalled to the hearing room so that Mr. Samuels’ lawyers had an opportunity to address the Committee on mitigating circumstances in Mr. Samuels’ favour.
1. As outlined at paragraphs 3 and 5 above, an ingredient of the second charge against Mr. Samuels was that he had “engaged in conduct which, in the opinion of the Executive Board, relates directly or indirectly to the Rules of Conduct i.e. (i) to (xiii) and is prejudicial to the interests of the game of cricket”.
1. The Committee had enormous difficulty with the inclusion of the quoted words in the charge. In effect, Mr. Samuels was being charged with conduct that was contrary to the subjective interpretation by the Executive Board of certain Rules of Conduct. We did not consider this to be either fair or proper. To compound the defect there was no evidence presented as to what if any conduct in the opinion of the Executive Board related to the cited clauses or that any such opinion has been published to players generally or Mr. Samuels in particular. In fact the only indication of the views of the Executive Board related to decisions made in March and June 2007 with respect to certain penalties. We called on Mr. Jones to justify the inclusion of these words in the charge and after hearing him, we determined that the words in question should be excised from the statement of the charge.
The evidentiary background
1. There is little dispute as to the factual circumstances that attend the two charges. Central to all the relevant events is the relationship between Mukesh Kochhar and Marlon Samuels. Mr. Kochhar is an Indian national who resides in Dubai. Mr. Samuels is a West Indian international cricketer.
1. The two men first met in early 2002. The West Indies team was in Sharjah to play against Pakistan. Marlon Samuels was just 19 years old at the time. While on tour he had sustained a knee injury requiring surgery and so was in the Players and VIP stand. Mr. Kochhar had a VIP box there. Mr. Kochhar came into contact with Mr. Samuels. He struck up a conversation with the injured youngster. In the course of the conversation Mr. Samuels complained about the food at the hotel. Mr. Kochhar immediately called up a friend who runs a local restaurant and arranged for food to be delivered to Mr. Samuels’ room anytime he called. Mr. Samuels and Mr. Kochhar exchanged telephone numbers and, although they did not see each other frequently over the years, Mr. Kochhar kept in regular telephone contact. The two developed a friendship. Mr. Samuels regarded Mr. Kochhar, a man Mr. Peacock adjudged to be in his late 50s or 60s, as a father figure, a mentor.
1. It is convenient at this juncture briefly to digress. Over the last 10 or so years, the cricket world has been rocked with a number of scandals involving corruption in cricket. The ICC has responded vigorously. An Anti-Corruption Unit (ACU) was established. In June 2000, Sir Paul Condon QPM was appointed to conduct a general review of relevant matters and to submit a written report to the Chairman of the ACU. Sir Paul’s comprehensive Report was submitted in April, 2001.
1. Sir Paul’s Report contained a wide variety of recommendations which were adopted by the ICC. A raft of measures was implemented designed to attack corruption in cricket. An ICC Code of Conduct for Players and Team Officials was promulgated. All Members of the ICC were required to adopt measures to give effect to the efforts to root out corruption in cricket.
1. In keeping with this mandate, on Saturday 1st October, 2005, Mr. Samuels was present with other cricketers from the West Indies at an auditorium at the Cave Hill Campus of the University of the West Indies. All the West Indies territorial teams were present. Mr. Samuels attended as a member of the Jamaica national cricket team. The purpose of their presence was to listen to a presentation by Mr. Ronald Hope, one of the Regional Security Managers at the ICC.
1. Mr. Hope’s presentation included the showing of a video – “Bounce Corruption out of Cricket” - especially produced for Anti-Corruption training, awareness and education. After showing the video Mr. Hope reiterated some key points for the players present to remember. In particular, he told them how corrupters approach players and officials; how to avoid being compromised; what to do if approached; what behaviour was prohibited by the Code of Conduct and what was each player’s responsibility under the Code. The Committee was shown the video in the course of this hearing and we thought that viewers of the video could indeed be in little doubt about the dangers posed by corrupt persons and unregulated gambling and the basic responsibilities of a cricketer in the fight against corruption in the sport.
1. We continue now with the narrative of the relationship between Mr. Kochhar and Mr. Samuels. In January, 2007, the West Indies team was on tour in India. The team played an ODI at Nagpur on Sunday 21st January, 2007. On the previous night of Saturday 20th January, 2007 at 23:45 hrs, Mr. Kochhar called Mr. Samuels who was then alone in his hotel room. Unknown to Mr. Samuels and to Mr. Kochhar at the time, all of the latter’s telephone calls were being intercepted legally and covertly by the Indian police. The call to Mr. Samuels was recorded. The tape was turned over to Mr. Peacock. The Committee was able to listen to the recording of the entire call. It lasted for about six minutes. On the tape, Mr. Kochhar and Mr. Samuels exchanged pleasantries as old friends might and then they spoke about the match to be played the next day. Mr. Samuels is encouraged to play well, not to give catches, not to get run out and to consolidate his position in the team. The conversation also encompasses team information. Mr. Kolchhar asks, inter alia, whether “Chris” is in form; who will open the bowling for the West Indies; when will Mr. Samuels come on to bowl. Mr. Samuels gives an answer to each of these questions. He informs Mr. Kolchhar that the opening bowlers would be Taylor and Bradshaw.
1. In his remarkably frank and candid interview with Mr. Peacock, recounting this telephone call, Mr. Kochhar said:
“During our conversation we talked about the fact that the ball moves around in the morning and slows down in the afternoon. I asked him who the opening bowlers would be and he told me Taylor and Bradshaw. We discussed that Marlon would be 3rd bowler and Chris Gayle would be 4th or 5th bowler. He told me there would be new faces in the team, making a debut. I gave him words of encouragement and told him to consolidate his play…”
1. Some of the information that was given to Mr. Kochhar by Mr. Samuels turned out to be accurate. Taylor and Bradshaw did open the bowling for the West Indies the following day and Samuels did bowl first change. It may be sheer coincidence but that bowling order had never previously been employed by a West Indies captain nor has it ever been employed since. Some of the information given to Mr. Kochhar turned out to be false. No player made his debut during that match and we were unable to determine whether any debutant was in the squad named from which the final 11 was chosen.
1. In June, 2007, Mr. Peacock interviewed Mr. Henderson Springer, the West Indies Assistant Coach on that tour to India. Mr. Springer could not remember any of the details of the team meeting the night before the match at Nagpur but he confirmed that there definitely would have been one. He stated that at such team meetings the usual format would be to discuss the other team’s weak points and the tactics of how to do well themselves. During the meeting the players would learn who was in the team the next day and usually who the opening bowlers would be. They hardly ever discussed who the third bowler would be. Mr. Springer could not remember if any of these points was actually covered in the meeting the night before the Nagpur match, and he could not remember if there was any discussion about when the likely debutant would actually be making his debut.
1. Mr. Kolchhar admitted to Mr. Peacock that he bets heavily on cricket. He has always done so. He denied however that he was a cricket bookmaker and Mr. Peacock turned up no evidence to disprove that denial. Mr. Kochhar also admitted that he did place bets on the West Indies/India match at Nagpur on the 21st January, 2007. He told Mr. Peacock that he could not remember what the bets were or whether he had won or lost because he had placed bets on so many matches. He told Mr. Peacock, off the record as he was worried about the police in the UAE and the tax authorities in India, that he regularly gambled between 3 – 5 lakhs a time i.e. approximately US$7,000 – US$12,000.
1. Towards the end of his interview with Mr. Peacock, Mr. Kochhar noted that “I have never actually discussed my cricket betting with Marlon, he has never asked me to put a bet on for him, but maybe he knows I bet because of Sharjah”. It must be said however that no further evidence was presented to the Committee that Mr. Samuels was ever aware of Mr. Kochhar’s betting activities and therefore the Committee makes no finding that he was aware of them.
1. At the end of that 2007 India tour, Mr. Samuels and Mr. Chris Gayle spent a few extra days in Mumbai. The pair had arranged to be participants in a television or video production from which they expected to earn US$2,000.00 each. The arrangements fell through. The players went to the site prepared to do the shoot. From bitter experience, they saw it fit to demand payment in advance. When payment was not forthcoming they declined ultimately to participate in the production.
1. Like Mr. Gayle, Mr. Samuels became personally responsible for defraying his hotel and accommodation expenses for the extra days he had stayed on in Mumbai. Mr. Gayle paid his bill with a credit card. Mr. Samuels attempted to do likewise but his card was declined. He had spent that morning shopping. He therefore needed money to pay his hotel bill. He called Mr. Kochhar from the hotel lobby and asked him to settle the unpaid hotel expenses. Mr. Kochhar there and then arranged to have someone immediately go to the hotel and settle Mr. Samuels’ bill. The bill came up to 50,486.70 Rupees or US$1,238.00.
1. Mr. Samuels stated in his interview with Mr. Peacock that this was the first time he had ever asked Mr. Kochhar to do anything of the sort and that he had every intention of repaying him the funds. Mr. Kochhar, in his interview with Mr. Peacock, confirmed that Mr. Samuels had indicated to him (Kochhar) that he (Samuels) would give the money back when he returned to the West Indies but Mr. Kochhar said that he told him that it was unnecessary and that there was no need to repay him.
1. The funds were never repaid. Mr. Samuels explained that as soon as he returned to Jamaica he was required to go off to the West Indies’ World Cup Training camp and then shortly after that, the news of this matter hit the international Press. A transcript of the Kochhar/Samuels telephone call the night before the Nagpur ODI was leaked to the Indian Press and CRICINFO published the transcript for all the world to see. In light of the enormous international controversy that ensued following this publication, Mr. Samuels’ lawyers stated that Mr. Samuels did not think it prudent further to communicate with Mr. Kochhar.
1. Affidavits attesting to his character were sworn by a variety of distinguished Jamaicans who know and are extremely well acquainted with Mr. Samuels. Several of the deponents have known Marlon since he was a toddler. The noted Jamaican sportswriter, Tony Becca, described him as “always quiet” and “well behaved”. According to Mr. Becca, Marlon “respected his seniors and especially those in authority. He was honest in everything he did and now that he is a man, nothing has changed”. The Reverend Major Sirrano Kitson, the current Rector of the Saint Andrew Parish Church, noted that Marlon was “a person who has been formed with Christian values and many young people seek him as a role model”. Mr. Rudy Williams, Chairman of the selectors of the Jamaica Senior Cricket Team stated that Marlon had “assumed the role of mentor to his younger teammates, whom he is always counseling on the importance of having the right attitude to the game, generally, to umpires and to other players”. Retired teacher, Ms. Helen Joy Douglas, remembers Marlon in school. She stated that she “never had reasons to question or doubt Marlon’s honesty and integrity. Even when confronted by the challenges of the curriculum, I have never known him to resort to dishonest means to overcome the hurdles he faced”. Mr. Roy McLean, a Retired Civil Servant, coached Marlon throughout the period of his representation of Kingston College in cricket at junior and senior levels. Mr. McLean never knew Marlon “to have indulged in gamesmanship of any kind, dishonesty or any other conduct whatsoever that would bring his beloved game of cricket into disrepute”. Mr. Mclean was prepared to state “with the strongest conviction that Marlon’s respect for the laws of the game of cricket is quintessential” and that he had great “respect for the matter of honesty in the game of cricket”. His Lordship, Justice of Appeal Howard Cooke, did not enjoy a close personal relationship with Marlon but he was a long standing member of the Melbourne Cricket Club of which Mr. Samuels was a member. His Lordship had also functioned in the past as Chairman of the Disciplinary Committee of that club. The Judge felt in a position to state that “within the atmosphere of the club, there has never once over the years been any kind of dishonesty or deviant behaviour” on Marlon’s part and that Marlon had never been brought before the Disciplinary Committee of the club. Finally, Mr. Dudley Bryan, a retired Superintendent of Police, deposed that he had never seen Marlon “display conduct amounting to lack of sportsmanship or indulge in any gamesmanship or [seek] to get an unfair decision or advantage” and that “Marlon Samuels has always played the game fairly and honestly and on every occasion conducted himself with integrity and decorum”.
1. Quite apart from the references to Mr. Samuels’ probity, there is a central thread running through the affidavits filed on his behalf. Mr. Becca states that “one regret about Marlon is that he did not do well in school at Kingston College”. Mr Williams states, “I do verily believe despite Marlon’s obvious strengths as a person and cricketer, a critical weakness in his make-up is the fact that he is so naïve and so simple, even, that he cannot readily discern guile and deception in others with whom he might have to deal from time to time”. Ms. Douglas stated that “academically, Marlon was rather weak and lacked certain fundamental skills which were necessary for his advancement. Having recognized this, the school administration put in place special programmes to assist him. Notwithstanding, Marlon’s grades continued to fall below the desired level”. Mr. McLean recounted that “Marlon was not a strong student at Kingston College academically. Unfortunately his cricketing skill so far exceeded his academic skills as to completely overshadow them”.
1. Mr. Michael Holding, who needs no introduction in cricketing circles, said in his affidavit that he came to know Marlon Samuels from the latter’s childhood as a member of the Melbourne Cricket Club. He deposed that “as a result of the nature of the academic side of his time at Kingston College, Marlon received extra lessons from my mother for a considerable period”. Mr. Holding described Marlon as “naïve and quite unfortunately, seriously lacking in judgment and discernment, but he is by no means a dishonest person nor one who would in the slightest be given to the kind of corrupt activity now alleged against him”.
Summarising the submissions of counsel
1. In his closing submissions, Mr. Harrison, Counsel for Mr. Samuels, adverted strenuously to the affidavits that had been filed on behalf of Mr. Samuels. He argued that character evidence may be relied on in order to demonstrate a lack of propensity to commit offences or dishonest acts and, given the common thread running through the affidavits as to Mr. Samuels’ “want of cerebral potency” and his naivete, the Committee should find that the charges were not proven. Counsel stated that the offences could not be offences of strict liability and he reminded the Committee that it was entirely possible for a person innocently to receive a gift that was corruptly given.
1. Mr. Jones submitted that Mr. Samuels was an experienced international cricketer who must have known, especially given his exposure to Mr. Hope’s presentation 15 months previously, that there was a line that should not be crossed and that he ought not to be excused on account of anything that was stated in the affidavits filed on his behalf.
The charge related to divulging confidential team information
1. After the legal submissions had been made, the Committee continued to have grave doubts not merely about whether the second charge, as amended by the Committee, had been proved but also about the propriety of the very charge itself. The essence of the charge relates to the divulging of confidential team information. The charge in question is set out at para 5 above. The particulars of the charge describe conduct which is said to be contrary to Part C 4. (xiv) of the Code of Conduct. What is prohibited by Part C 4. (xiv) is conduct prejudicial to the interests of the game of cricket and which conduct “relates directly or indirectly to any of the above paragraphs (i) to (xiii)”
1. When we deliberated among ourselves, we sought in vain to locate the impugned conduct of Mr. Samuels within Part C 4. (i) to (xiii) of the Code of Conduct (For ease of reference we have appended to this Report Part C of the Code of Conduct). We recalled counsel and sought assistance from Mr. Jones. We did not find his answers convincing either as to the aspects of Part C 4. (i) to (xiv) to which the alleged conduct relates or as to whether there was any evidence in favour of his submission that “team” or “dressing room” decisions had been divulged.
1. The only aspects of Part C 4. (i) to (xiii) of the Code of Conduct that could conceivably relate to the particulars described in the second charge are those referred to at C 4. (viii) and C 4. (xi). Part C 4. (viii) prohibits a person from
“[receiving] from another person any money, benefit or other reward (whether financial or otherwise) for the provision of any information concerning the weather, the teams, the state of the ground, the status of, or the outcome of, any match or the occurrence of any Event unless such information has been provided to a newspaper or other form of media in accordance with an obligation entered into in the normal course and disclosed in advance to the Cricket Authority of the relevant member Country”.
1. The difficulty with treating Part C 4. (viii) as related to Samuels’ conduct is that the whole emphasis in C 4. (viii) is placed on the giving of confidential information for reward. But there is no evidence before us that Samuels exchanged or had any intention of exchanging for reward the information he shared with Mr. Kochhar. If anything, the evidence is quite to the contrary. Part C 4. (viii) is therefore of no help in determining exactly what is the conduct of Mr. Samuels that “relates directly or indirectly to any of the above paragraphs (i) to (xiii)”
1. Part C 4. (xi) is equally unhelpful. That part speaks to a person who has
“received any approaches from another person to engage in conduct such as that described in any of the above paragraphs (i) to (x) and has failed to disclose the same to his Captain or to his Team Manager, or to a senior Board official or to the Anti-Corruption and Security Unit”
1. The problem here is immediately obvious. To use Part C 4. (xi) in this manner would suggest that there is described in the Code, somewhere between paragraphs (i) to (x), some conduct that is akin or “related directly or indirectly” to the conduct particularised in the second charge laid against Mr. Samuels. But there is no such conduct so described between paragraphs (i) to (x). In short, it did not appear to us that the Code, as it is currently worded, prohibits per se the improper divulging even of confidential team information in circumstances where the person giving out the information does not himself: bet on matches (i), or encourage others to bet on matches (ii), or gamble (iii), or encourage others to gamble (iv), or become a party to match fixing (v), or underperform (vi), or encourage some other to underperform (vii), or trade the information for reward (viii). This may or may not have been an oversight on the part of the ICC but in light of these circumstances, we felt unanimously that the charge related to divulging confidential team information should be dismissed and we did so.
The charge related to receiving a benefit
1. The Committee was divided on this charge. A majority thought the charge proved. Professor Bishop, for reasons he has given in the appended dissent, thought otherwise.
1. The majority considered that the gravamen of this charge is the receipt of any money, benefit or other reward (whether financial or otherwise) which could bring the person receiving the benefit or the game of cricket into disrepute.
1. Counsel for Mr. Samuels spent some time discussing two issues concerning this charge, namely, the impropriety of an offence of virtually strict liability and secondly, the absence of evidence of dishonesty on the part of Mr. Samuels. On this latter point, the majority agrees unreservedly that there has not been proved against Mr. Samuels, certainly not to the required standard, any element of dishonesty or corruption. We have no basis upon which to find that Mr. Samuels has behaved dishonestly or in a corrupt manner. The majority therefore accepts that Mr. Samuel is an honest cricketer; that he has never betted on cricket matches and that he was unwittingly and innocently sucked into an unhealthy vortex by an unscrupulous gambler posing as a mentor and father figure.
1. The question is whether proof of the charge in question necessarily requires an element of dishonesty on the part of the person charged. The majority did not think that it did. The majority felt that the charge was made out if, firstly, it was proved that the accused received the benefit or other reward and that secondly, the circumstances surrounding the giving and receipt of the benefit were such that an objective by-stander with knowledge of all of those circumstances would assess that the receipt of the benefit could bring the receiver or the game of cricket into disrepute. Indeed, even if the clause is interpreted so that “may” is substituted for “could” the majority would still be of the view that this charge had been proved.
1. What did the majority consider to be the circumstances at play here? By 2007, Mr. Samuel was an experienced, well traveled international cricketer. He must have been aware of the work of the Anti-Corruption Unit. He had certainly attended Mr. Hope’s lecture and seen the ACU video about 15 months before the Nagpur ODI. The benefit received by him was obtained from someone with whom he had been discussing on the telephone team tactics and information concerning a match scheduled to take place just hours after the phone discussion. There is no evidence to suggest that the receipt of the benefit was directly linked to the telephone discussion as suggesting a quid pro quo. But the majority considers that the telephone conversation provides an important part of the context which must be taken into account in order to determine whether, in the eyes of an objective by-stander, the receipt of the benefit could bring the game into disrepute.
1. Mr. Samuels’ counsel invited us to concentrate on their client’s state of mind. Mr. Neita pointed to the affidavit evidence indicating that Mr. Samuels is naïve, lacking in judgment, not very astute. Mr. Samuel himself, in his interview with Mr. Peacock, had denied knowledge that it was possible to bet on cricket, a game of glorious uncertainty. Mr. Jones considered that this characterisation of Mr. Samuels, even if relevant, has overstated the case. Mr. Jones also asked us to infer that Mr. Samuels’ professed lack of knowledge about betting on cricket was not believable.
1. The majority does not consider it fair either to Mr. Samuels, or to an assessment of the evidence adduced at the hearing, unduly to belabour his naivete. It was Mr. Samuels himself who indicated to Mr. Peacock, inter alia, that:
“Mumbai to me is my feeding ground. I have got a lot of things going on in Mumbai so I tell him [i.e.Mr. Kochhar] that I think I am going to stay back in Mumbai in Bombay because I have done the runways there, I have a lot of contacts with big designers because I am into fashion as well in this part of the world. Because, you know, I have my personal designer for clothes, I’m into clothes and stuff like that … So what I stay back and do is to get materials and stay back and try to get more contacts and try for contracts with a different company…”
He may or may not have been exaggerating. But what he said here certainly undercuts any notion that he should be treated as one might a mental defective.
1. The majority is of the view that the Anti-Corruption Code rightly targets not only corrupt and dishonest activity but also behaviour that objectively might be considered a precursor to corrupt and dishonest activity. If it were possible for one to find this charge not proven solely because of Mr. Samuels’ state of mind, then we would be faced with the anomaly that the very same conduct of Samuels would be penalized if it were engaged in by one player but would be excused if it were engaged in by another. The majority did not consider that this was an appropriate way to interpret either the spirit or the letter of this particular provision of the Code.
The penalty to be imposed
1. The Committee as a whole was extremely disappointed to note that the prescribed penalty to be imposed for commission of the offence the majority found proved is a minimum ban for a period of two years. The apparent mandatory nature of this minimum penalty does not at all sit well with the Committee. While we appreciate the need to be firm in wiping out every vestige of corruption in international cricket, we have serious reservations about the propriety of a Code that prescribes mandatory minimum punishments generally and particularly for the offence the majority found proved.
1. From the standpoint of both the offence concerned and the person who might commit the same, an enormous range in character and in culpability is possible. The circumstances in which this particular offence may be committed and the personal background and motive of the offender may vary radically from one accused person to another. As indicated before, the offence does not only target the corrupt and the dishonest. It is therefore wholly unreasonable and unfair to visit upon all who are caught within its reach a uniform and very severe penalty of a mandatory two year ban. Indeed, the distinguished ex West Indies captain, Mr. Richie Richardson, a member of the Committee, could not bring himself to sign the Minute of our decision without expressing the reservation that, “based on the evidence during the hearing, the applicable two year ban is excessive, harsh and unfair”. The entire Committee shares these sentiments. We consider a minimum two year ban to be entirely disproportionate in the circumstances.
1. We were of the view that given the circumstances that attended Mr. Samuels’ commission of the offence and in light of the unchallenged evidence we received as to his character and judgment and his complete cooperation in this investigation, if we had the power so to recommend we would have recommended that Mr. Samuels be bound over to be of good behaviour for a period not exceeding two years.
1. If the prescribed penalty remains unaltered, it is quite likely that tribunals in the future may, in certain cases, refuse to find proven charges laid under this part of the Code only because of the unjust nature of the mandatory sentence that must be imposed. In other words, the cricketer concerned and/or cricket itself may well have been brought into disrepute but the offender would be entirely exonerated by tribunals sympathetic to the plight of the player. We do not think that such a scenario conduces to the aims of the Anti-Corruption Unit.
Recommendations to the Board
1. The Committee recommends to the WICB that it should use its good offices to have the ICC re-visit the Code of Conduct. This Report has drawn attention to certain anomalies in the Code. There may well be others that exist quite apart from the matter of mandatory penalties generally and in particular for some of the specific offences laid out in the Code.
1. At paragraph 83 of his seminal Report referred to above at paragraphs 17 and 18, Sir Paul noted that:
“The corrupt approach was often subtle, ambiguous and patient. The relationship would sometimes start innocently with admiration of players being used as the reason for invitations to mix socially…Gifts without obligation would follow and eventually the true motivation for the relationship would emerge. The corrupt approaches would be made and either embraced or rejected”.
The WICB needs to pay greater attention to curbing the possibilities for corrupting or “grooming” players for corrupt activity. This case illustrates how the youthful and the unseasoned can be extremely vulnerable to the lures and wiles of unscrupulous persons posing as “father figures” and “mentors”. Greater measures must be introduced to ensure that every West Indies touring party, and in particular the young or inexperienced player, has the benefit, from time to time, of a presentation on the work of the ACU and the responsibilities of players in the fight against corruption.
1. Finally, and further to what is stated at paragraph 51 above, the WICB needs to take up with the ICC as a matter of urgency the prospect that Mr. Samuels could be banned from playing cricket for two years when it has not been proven by the Committee that he did anything dishonestly or for a corrupt purpose.
Dated the 16th day of May, 2008
Dr. Lloyd Barnett Justice Adrian Saunders Mr. Richie Richardson
Member Chairman Member
Professor Bishop:
1. I find that the remaining charge against MARLON SAMUELS is not proved. I stand here alone and the explanation is perhaps a simple one.
1. In these proceedings, certain documents were, by agreement of the opposing parties, admitted into evidence. There were seven (7) affidavits that were so treated. Their deponents were persons of noted standing, in integrity, and unquestioned judges of human behaviour. Their views of MARLON SAMUELS were to the effect that he was incapable of a dishonest act or of causing the game of cricket to descend into disrepute.
1. Those statements were assertions of profound conviction, were unchallenged and had to be taken into account when the tribunal came to the point of evaluating the strength of the West Indies Cricket Board’s case and the discharge of the burden of proof, devolving upon the Board and never, for a moment, on SAMUELS, though he was free to speak to the issue.
1. The personality of SAMUELS was a vital factor in determining his liability: the affidavits disclosed how well endowed he has been in the activity called cricket, but regretted the absence in him of normal growth and development in other areas, despite the special efforts of qualified persons, identified in the said affidavits. In sum, the tribunal was presented with a clear picture of a young man who was not to be assessed according to normative standards.
1. Here, therefore, was a fit and proper issue that demanded our subjective focus: how did the special person, MARLON SAMUELS, in the context and circumstances in which he was placed, regard at the material time, the money which was handed him to pay a hotel bill?
1. Considerations such as lectures he had attended, his previous travel experience and other related indicia, which ought reasonably to be take into account against the average man, are to be discounted, because the uncontested fact, established in the affidavits, is that MARLON SAMUELS, was not, at the time he received the money, thinking in the way the average man would have been expected to analyse or examine the situation.
1. My colleagues would appear to have disregarded the point, though they acknowledge that MARLON SAMUELS’ situation described a special case, but they relegated its merit to the belated stage of mitigation of sentence, rather than elevate it to the status of an impeccable factor that tested the alleged verity of the Board’s charge. An attempt by the Board to propose that the hotel bill, paid for by MR. KOCHHAR has not yet been repaid by Samuels and therefore discredits his plea of innocence, is an example of venturing into the extraneous, since one or more of several events could have contributed to SAMUELS’ failure to repay the money in reasonable time.
1. What is important to notice is that my colleagues have accepted that MARLON SAMUELS is a special person, but, regretfully, they have unduly restricted the use to which the said affidavits deserve to be put, having regard to the contest that SAMUELS was incapable of dishonesty or of doing any act that would bring dishonour to the game. The deponents of the affidavits were never discredited by the Board at the hearing before us. That evidence remained in my opinion, a formidable barrierprejudiced by the restricted use made of the affidavits. to an adverse finding against SAMUELS who instantly became
1. On the question of sentence, I had regard to the majority decision [3:1] and proposed that our tribunal should, in the strongest possible terms, frown on the concept of MANDATORY SENTENCING, in this special case of MARLON SAMUELS, where the allegation suggested a FIRST OFFENCE by a person who has many MERIT MARKS to his credit, but is established to be wanting in capacity to commit the act alleged against him. The fact of a money payment was not enough to establish the Board’s case. More relevant evidence was required but nothing more was presented.
1. In light of the 3:1 decision recorded against SAMUELS, I do suggest that a MANDATORY SENTENCE, suspending him from playing cricket, offends the principle of PROPORTIONALITY: a penalty that is incommensurate with the mischief to which it is addressed. Such a grave imbalance challenges the constitutionality of the imposition and is offensive of contemporary human rights principles. A special case deserves a design and a structure that are appropriate and exude FAIRNESS.
1. I would therefore propose that MARLON SAMUELS be placed on a bond to be of good behaviour for the next twelve (12) months with effect from today.
Professor A.F.R Bishop, O.R., CCH.
May 9, 2008.
