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ohFFsake View Drop Down
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Posts: 219 		Post Options Post Options   Quote ohFFsake Quote  Post ReplyReply Direct Link To This Post Topic: Standard of Proof?
    Posted: 11 Jun 12 at 11:00pm

This is a really basic question, but one I'm struggling to find an answer to!

When a protest meeting considers evidence in order to determine the facts of the case, to what standard must it test the evidence?

In other words, can it determine a fact based on the balance of probability, for example if it feels it is more likely that boat A was on port tack than on starboard, can it then state this as a fact upon which to base a decision?

Or does it have to be to the "criminal" standard of proof of "beyond reasonable doubt". In other words it can only state as a fact that boat A was on port tack if it can be satisfied beyond reasonable doubt.

If the latter is is the case is there a prescribed definition of what constitutes "reasonable doubt"
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laser193713 View Drop Down
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Posts: 889 		Post Options Post Options   Quote laser193713 Quote  Post ReplyReply Direct Link To This Post Posted: 11 Jun 12 at 11:25pm
I think what you are trying to get at is the point where there is no way to be sure.  In which case you generally go back to the last point where it was clear what tack a boat was on etc.  For mark room, it is generally assumed that you should assume the overlap is not made, or not broken, rather than just made, or just broken.  I hope this is clear?
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Brass View Drop Down
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Posts: 1146 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 12 Jun 12 at 12:09am
A protest hearing is a non-judicial civil tribunal.  It is a consensual forum which parties have agreed (rule 3) to be the method of resolving [primarily in-competition] disputes abour rules governing sailing races.
 
Breaking a rule of sailing is not a crime.  A protest hearing is not a criminal court.  The 'criminal standard of proof', that is, 'beyond reasonable doubt' does not apply, except to rule 69 hearings.
 
ISAF Q&A 2009-011 gives quite good guidance on these issues.
 
It states:
 
With the exception of rule 69 hearings, a protest committee has only to find that, on the balance of probabilities, one boat is more likely to have broken a rule than the other.  When relevant, the following guidance is available to protest committees:
  1. Rule 18.2(d) in the RRS gives guidance when the protest committee has reasonable doubt that a boat obtained or broke an overlap in time.
  2. The umpiring principle of the last point of certainty is also to some extent valid in protest hearings.
  3. In Case 50, a boat required to keep clear fails to do so if the right-of-way boat takes avoiding action because of a genuine and reasonable apprehension of a collision
 The Judges Manual 12.2.10, page 111 states
 

The test of 'beyond all reasonable doubt' should be applied [in rule 69 hearings]. This is quite different to a protest hearing when the test of 'balance of probabilities' would be appropriate.

 
 


Edited by Brass - 12 Jun 12 at 12:25am
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ohFFsake View Drop Down
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Posts: 219 		Post Options Post Options   Quote ohFFsake Quote  Post ReplyReply Direct Link To This Post Posted: 12 Jun 12 at 12:42am

Thanks for that. I couldn't have asked for a more definitive answer!

The protest in question is actually a rule 2 one.

Boat A fouls Boat B 20 seconds before the start. At the protest all parties agree on this point. Boat A is asked to do a 720 and appears to bear away to do so. However Boat C who is behind both of them sees that as soon as the gun goes Boat A heads up to start and shortly afterwards catches B again. After the race C informs B of this, who then lodges a protest.

At the hearing C is asked whether they were watching B for "all of the time" and they answered that they were probably watching for 90% of the time whilst also starting the race themselves. Jury concludes that they could not rule out the remote possibility that B may have performed two turns during the 10% of the time that C was not looking at them and therefore C's evidence is inconclusive.

It could be established that:

1. Boat A caught Boat B very shortly after the start.

2. The occupants of the committee boat did not recall seeing A doing turns immediately after the start, even though there were 2 people running the race and only 5 boats taking part.

3. C did not overtake A at any point.

To my mind it seems extremely improbable that A could have performed a full 720 after the gun went without either the race committee or boat C noticing, and without C (who actually won the race) overtaking them in the process.

DNE?
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Brass View Drop Down
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Posts: 1146 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 12 Jun 12 at 1:10am
Unless B hailed 'Protest' and conspicuously displayed a red flag (if she was over 6m) at the first reasonable opportunity after the initial incident 20sec before the starting signal, there is no valid protest concerning that incident.
 
In that case the protest committee (unless it goes to rule 69)  'shall declare the protest ... invalid and
close the hearing' (rule 63.5), and may not inquire into the facts surrounding that incident, nor reach any conclusions about rules being broken in that incident.
 
See Q&A 2009-023
 
When a protest is found to be invalid under rule 63.5, that closes the hearing and the incident
unless the finding of invalidity is appealed or the protest committee decides to reopen the hearing
under rule 66. No other actions can be taken by the protest committee or any party. Reluctance to
retire shall be seen as the same incident, and cannot be protested separately and subsequently by
a party, since it presupposes a conclusion that can only follow from the facts found in a valid
protest concerning the incident. The protest committee cannot lodge its own protest under rule 2
against the competitor, since it learned of the incident in an invalid protest
 
RYA cases 1981/7 and 1999/1 also relevantly indicate the principles applicable.
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ohFFsake View Drop Down
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Posts: 219 		Post Options Post Options   Quote ohFFsake Quote  Post ReplyReply Direct Link To This Post Posted: 12 Jun 12 at 1:20am

 

Originally posted by Brass

Unless B hailed 'Protest' and conspicuously displayed a red flag (if she was over 6m) at the first reasonable opportunity after the initial incident 20sec before the starting signal, there is no valid protest concerning that incident.

At the original incident B saw A bear away to carry out her penalty turns and believed that she had correctly exonerated herself. The first reasonable opportunity to lodge the protest was therefore after the finish when C made B aware that A had not in fact done a 720. At this point A was ashore so B informed the committee boat of her intentions then sailed back and told A the same.

The PC accepted this was all that could reasonable be expected of B in the circumstances, and accepted the protest as valid.
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Brass View Drop Down
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Posts: 1146 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 12 Jun 12 at 1:29am
Originally posted by ohFFsake

 
Originally posted by Brass

Unless B hailed 'Protest' and conspicuously displayed a red flag (if she was over 6m) at the first reasonable opportunity after the initial incident 20sec before the starting signal, there is no valid protest concerning that incident.

At the original incident B saw A bear away to carry out her penalty turns and believed that she had correctly exonerated herself. The first reasonable opportunity to lodge the protest was therefore after the finish when C made B aware that A had not in fact done a 720. At this point A was ashore so B informed the committee boat of her intentions then sailed back and told A the same.

The PC accepted this was all that could reasonable be expected of B in the circumstances, and accepted the protest as valid.

RYA Appeal 1981/7
 
When a boat protests, believing that another boat has not taken a penalty as described in rule 44.2, she must establish first that the other boat broke a rule of Part 2
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ohFFsake View Drop Down
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Posts: 219 		Post Options Post Options   Quote ohFFsake Quote  Post ReplyReply Direct Link To This Post Posted: 12 Jun 12 at 1:38am
Originally posted by Brass

Originally posted by ohFFsake

 
Originally posted by Brass

Unless B hailed 'Protest' and conspicuously displayed a red flag (if she was over 6m) at the first reasonable opportunity after the initial incident 20sec before the starting signal, there is no valid protest concerning that incident.

At the original incident B saw A bear away to carry out her penalty turns and believed that she had correctly exonerated herself. The first reasonable opportunity to lodge the protest was therefore after the finish when C made B aware that A had not in fact done a 720. At this point A was ashore so B informed the committee boat of her intentions then sailed back and told A the same.

The PC accepted this was all that could reasonable be expected of B in the circumstances, and accepted the protest as valid.

RYA Appeal 1981/7
 
When a boat protests, believing that another boat has not taken a penalty as described in rule 44.2, she must establish first that the other boat broke a rule of Part 2

B admitted the original Port / Starboard, which was then a finding of fact by the PC. So my understanding is that the protest was valid and the only point at issue is whether or not she correctly exonerated herself.
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ohFFsake View Drop Down
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Posts: 219 		Post Options Post Options   Quote ohFFsake Quote  Post ReplyReply Direct Link To This Post Posted: 12 Jun 12 at 1:39am
Sorry, I mean A admitted the Port/Starboard, not B!
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Brass View Drop Down
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Posts: 1146 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 12 Jun 12 at 3:29am
OK.  I have to say that this looks to me like an attempt by B and C to get up a protest against A, after they had been too lazy or too uninformed to discharge their obligations to hail 'Protest' and display a red flag in accordance with rule 61.1(a), by attempting to use rule 2 as a sort of 'back-door' approach.
 
Just conceivably, the protest committee was uneasy about whether the protest should have gone ahead or not, and was only too pleased to find a reason to dismiss it.
 
I think that RYA Appeals 1981/7 and 1999/1 and Q&A 2009-023 tell us that a protest under these circumstances is invalid, and should be promptly closed without hearing any evidence about the alleged incident.  It seems to me that the protest committee should have closed the hearing well before A got any chance to make any 'admission' that A broke a rule.
 
If A first, admitted that she broke a Part 2 rule in the initial incident, but then attempted to put the protesting boats to strict proof that she had not done her penalty turns in accordance with rule 44.2, that is a most extraordinary litigation strategy.
 
However, maybe we cal learn something by 'picking-over' the protest hearing.
 
What was the 'incident' where it was alleged that Boat A broke rule 2?  What precise action or inaction by A was said to constitute the breach of rule 2?
 
What was the 'recognised principle of sportsmanship [or] fair play' that it was alleged A did not comply with?
 
What evidence was brought to the hearing that this 'principle', whatever it was was 'recognised'?  By whom?  To what extent?
 
How was it 'clearly established' that these principles had been violated?
 
Did Boat A (or anyone else) in the protest hearing say that A had done penalty turns in accordance with rule 44.2?
 
Or was the essence of the protest, an allegation that A had not done penalty turns?
 


Edited by Brass - 12 Jun 12 at 4:12am
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