Two months ago, I started a series on how to handle a protest from the protest committee’s side of the table. At the end of the second article, we had decided whether the protest was valid. This month, we will continue with the process for hearing a valid protest. Our job as the protest committee is to hear the evidence from the parties to the protest and the witnesses, and then to determine our facts, conclusion and decision. During the hearing, it useful to have one member of the protest committee take notes. The note-taker should pay particular attention to recording numbers such as distances, times and speeds.
Appendix M of the rulebook contains a guide to hearing protests. Rule 63.6 is quite short but covers what has to be done. It is advice, not compulsory.
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.
APPENDIX M
RECOMMENDATIONS FOR PROTEST COMMITTEES
This appendix is advisory only; in some circumstances changing these procedures may be advisable. It is addressed primarily to protest committee chairmen but may also help judges, protest committee secretaries, race committees and others connected with protest and redress hearings.
M3.2 Take the evidence (rule 63.6).
- 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.
- Invite questions from protest committee members.
- 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.’
- Call each party’s witnesses (and the protest committee’s if any) one by one. Limit parties to questioning the witness(es) (they may wander into general statements).
- Invite the protestee to question the protestor’s witness first (and vice versa). This prevents the protestor from leading his witness from the beginning.
- Allow members of the protest committee who saw the incident to give evidence (rule 63.6), but only while the parties are present. Members who give evidence may be questioned, should take care to relate all they know about the incident that could affect the decision, and may remain on the protest committee (rule 63.3(a)).
- Try to prevent leading questions or hearsay evidence, but if that is impossible discount the evidence so obtained.
- Accept written evidence from a witness who is not available to be questioned only if all parties agree. In doing so they forego their rights to question that witness (rule 63.6).
- Ask one member of the committee to note down evidence, particularly times, distances, speeds, etc.
- Invite first the protestor and then the protestee to make a final statement of her case, particularly on any application or interpretation of the rules.
The protest committee first hears the protestor’s and then the protestee’s version of the story. They may use model boats to help illustrate their point. Next, they may ask each other questions – and this should be questions and answers only – not making statements. The protest committee can now ask questions to the two parties. It is important to understand the basic facts that each side claims before hearing the witnesses. Other questions may be saved until after the witnesses have been heard.
The protestor and then the protestee may then call witnesses. Both parties must still be in the room while the witnesses give their evidence. It is usually best for the committee chair first to ask the witness where they were (what boat they were on, what position they were in) and if they are aware of the incident being discussed. If they are aware of the incident, ask them to explain what they remember. Again, they can use the model boats. Next the parties may ask the witness questions, starting with the protestee for the protestor’s witnesses and the protestor for the protestee’s witnesses.
Sometimes the protestor or protestee will ask the committee whether they want to hear a particular witness. They are allowed to call witnesses, and this decision is their responsibility, not the protest committee’s. Some parties seem to want to call a lot of witnesses. A leading question from the chair such as “Do you have another other witnesses who you think will add to the hearing” will sometimes dissuade them from calling multiple repetitive witnesses – for example, multiple witnesses from their own boat.
Sometimes parties to the protest will ask to provide written evidence from witnesses who cannot come to the hearing. You should ask if the other parties agree. If they object, then the protest committee should not accept the written evidence. The parties have the right to direct questions to any witnesses but written evidence does not allow them to do this, so consent is required.
If parties have evidence such as photos, videos or tape recorders, they need to be prepared with the required equipment. They should also be asked to explain where and how the recording was made.
The protest committee may call their own witnesses if they know of someone who can add to the story. This is particularly important if one of the protest committee members is aware of facts about the incident. They must give any evidence while the parties are present. They may not wait until the deliberation time and then tell the rest of the protest committee. Witnessing the incident does not disqualify a member of the protest committee from being part of the committee.
Once all the witnesses are done, the committee may have questions for the two parties. I tend to save most of my questions until this time. That way I have heard the other witnesses first. The next step is ask the two parties, starting with the protestee, to summarize – not repeat – their case. The parties are then asked to leave the room.
At this time the protest committee must come to a decision. We will discuss this process next month.
© Copyright 2014 Andrew Alberti