Senior Cricket Australia code of conduct commissioner Alan Sullivan made a forceful argument for David Warner’s hearing to be open to the media a few hours before the opener spectacularly blew up an attempt to overturn his lifetime leadership ban.
That push for media representation at the hearing, and a refusal to rule out questions directly relating to the 2018 Newlands ball-tampering scandal, were the two triggers that pushed Warner to abandon the process on the eve of the Adelaide Test.
According to correspondence obtained by The Age and The Sydney Morning Herald, Sullivan and his fellow commissioners Adrian Anderson and Robert Heath were steadfast in the belief that the high public interest in Warner’s case compelled them to ensure transparency.
Australian opener David Warner.Credit:Getty
A source with knowledge of the panel’s intentions, who did not wish to be named so as to speak candidly, suggested that while the commissioners would not delve directly into the events in the Cape Town dressing room, they wanted to question Warner on the incident to gauge his remorse and fitness for leadership.
However, the Warner camp felt the precise nature of the questions was not made clear enough in the correspondence.
No previous code of conduct hearing in Australian cricket history has been held in public. In high-profile cases, such as Shane Warne’s drugs ban in 2003, the transcript of the hearing was released at its conclusion.
“Given the importance of this application, the fact it is the first of this kind, the public interest in the matter and the publicity which has already been generated about the possible application, the Panel is of the view that this application should be conducted as transparently as possible (but consistently with giving proper regard to the wellbeing of the Player and his family) and that such transparency requires that it not be heard entirely behind closed doors,” Sullivan, a CA conduct commissioner for more than 20 years, wrote.
“That said, as already indicated, at the hearing the parties will be at liberty to make applications that particular evidence or particular parts of the hearing be conducted in private. The Panel will hear submissions at the time any such applications might be made and consider any material put forward in support. The Panel will then promptly rule on any such application. But the panel is not inclined to make any such rulings in advance of the hearing and without evidence.”
In response to a specific request by Warner and his legal team that “there be no questions regarding the Third Test in Cape Town in 2018”, Sullivan responded that the panel wished to retain its right to ask questions without notice.
”The Panel will only ask questions it considers relevant bearing closely in mind the purposes, objects, text and requirements of Article 10 and the dictates of procedural fairness,” Sullivan wrote. “Otherwise the Panel will not fetter itself in advance as to what questions it may ask . Thus the Panel is unable to agree, at this stage, to the proposed limitation.″
On Thursday, December 1, the second day of the Perth Test match, Warner’s lawyer Adam Lunn had made a set of requests for the way the hearing would proceed, following a directions hearing at which concerns were raised about the possibility of 2018 Cape Town questions and the cross-examination of other witnesses.
Lunn made it clear to the commissioners that Warner could not countenance a public hearing of any sort, in particular because if there were no questions about Cape Town, the media would not understand the nuance between debating Warner’s penalty and discussing his past actions.
“It is fundamental to Mr Warner that there be no public or ‘hybrid’ hearing. A ‘split’ hearing where the media does not participate in any questioning of Mr Warner (but otherwise participates) is similarly problematic for Mr Warner as it will inevitably draw criticism of him and questions as to why he is not being questioned in front of the media or public,” Lunn wrote.
“Moreover, if the media are present, we regard it as inevitable that criticism will be directed at the Panel and Mr Warner for not addressing what occurred in the Third Test (the media will almost certainly not reflect the nuance of Article 10.7).″
CA’s board has the constitutional power to unilaterally overturn Warner’s ban without recourse to an independent process, despite the CA chief executive Nick Hockley’s insistence that the commission process was the only way to do it.
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