PART 5
All of these checks must be made within a hearing. A protest committee cannot refuse to open a protest hearing, for instance because the protest form was lodged outside the protest time limit. The protestor must be given the opportunity, within the hearing, to make out a good case for an extension of the time limit1
. If no good case is
forthcoming, only then can the protest be ruled invalid and the hearing closed. 63.6
Taking Evidence and Finding Facts The protest committee shall take the evidence of the parties present at the hearing and of their witnesses and other evidence it considers necessary. A member of the protest committee who saw the incident shall, while the parties are present, state that fact and may give evidence. A party present at the hearing may question any person who gives evidence. The committee shall then find the facts and base its decision on them.
Once again, Appendix M gives concise advice, in section 3.2, to which here are added further suggestions from this writer. Ask the protestor and then the protestee to tell their stories. Then allow them to question one another. In a redress matter, ask the party to state the request.
• Have the parties sit apart from each other, with a chair between them set aside for a witness. • The protest committee chairman may intervene to get immediate clarification of unclear points when they are made.
• The use of model boat shapes is recommended. Kits of models are available from the RYA, and ideally there should be sufficient models for each party to build up the sequence of what happened, resulting in something resembling one of the diagrams in this book. My experience, given four numbered models of the same colour for each party’s boat, is that it is easiest to ask each of the parties to start with models nos 3 to represent the closest point of approach between the boats, and then to work back with models nos 2 then 1 to show how the incident developed, followed by models nos 4 to show what happened next. Each will thereby produce a separate ‘diagram’ of what is asserted to have happened, and once each party is satisfied with his or her own diagram, it must not then be touched, except as allowed by the protest committee. So at the end of the parties’ evidence, there will be two diagrams on the protest room table.
• Many parties find it difficult to ask questions, and instead start making or repeating assertions. This must be gently deterred, or amended to the form ‘Would you agree that…?’
Invite questions from protest committee members.
• Inconsistencies can often be identified from the model diagrams. • When there are a number of protests to be heard, rotate the order in which the protest committee members ask their questions, so that each one will have the opportunity to ask the ‘killer question’.
Make sure you know what facts each party is alleging before calling any witnesses. Their stories may be different.
Allow anyone, including a boat’s crew, to give evidence. It is the party who normally decides which witnesses to call, although the protest committee may also call witnesses (rule 63.6). The question asked by a party ‘Would you like to hear N?’ is best answered by ‘It is your choice.’
• There may be no witnesses, in which case the protest committee has to decide from evidence of the parties what happened2
. There is a primary onus of proof on the protestor to show that a rule has been broken3
• The responsibility for having a witness ready to be called lies with the party wishing to introduce that witness’s evidence. The fact that the schedule of protest hearings may identify witnesses named on the protest form does not put any obligation either on the witness to attend, or on the protest committee to secure the attendance4
.
• Parties are often reluctant to call witnesses from their boat, and assume that the protest committee will assume that the evidence will be the result of collusion. My experience is that witnesses are just as likely to tell a story slightly or considerably different from the party’s, and this often sheds a useful light on what happened. Sometimes, the witness’s evidence will torpedo the related party’s case.
1 US 69: likewise, officious race office staff must be deterred from refusing to accept apparently out-of-time protest forms – the protest
committee may find a good reason to extend the protest time limit 2 RYA 1992/7 3 RYA 1990/3 4 RYA 1984/14
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