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Facts Found and Witness evidence ignored
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jeffers View Drop Down
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Posts: 3048 		Post Options Post Options   Quote jeffers Quote  Post ReplyReply Direct Link To This Post Topic: Facts Found and Witness evidence ignored
    Posted: 17 Mar 14 at 9:17am
I was involved in an incident over the weekend which went to protest after arbitration failed.

I had a witness who clearly corroborated the facts as I had stated them in arbitration but the PC decided to ignore that evidence in the full hearing stating they did not need to call the witness again as they had already heard his evidence. 

The facts found were accurate aside from the key bit of evidence which related to the amount of time required to respond to a luff. My witness clearly stated that he felt there was sufficient time given (which corroborated my statement) but the PC stated there was insufficient evidence either way and dismissed the protest.

I have asked for the hearing to be reopened so my witness can be formally heard.

Were the PC in error for not calling the witness formally in the full hearing?
Paul
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Brass View Drop Down
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Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 17 Mar 14 at 10:32am


Rule 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, rule M3.2 Take the evidence (rule 63.6).
...
● 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.’
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JimC View Drop Down
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Posts: 6661 		Post Options Post Options   Quote JimC Quote  Post ReplyReply Direct Link To This Post Posted: 17 Mar 14 at 10:52am
Pragmatically speaking my feeling is that if they had already heard the evidence, albeit not in the formal hearing, and not been convinced by it, then it seems unlikely that they'll change their minds if, as I believe is your right, the hearing is reopened.

Edited by JimC - 17 Mar 14 at 10:57am
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jeffers View Drop Down
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Posts: 3048 		Post Options Post Options   Quote jeffers Quote  Post ReplyReply Direct Link To This Post Posted: 17 Mar 14 at 11:29am
Originally posted by JimC

Pragmatically speaking my feeling is that if they had already heard the evidence, albeit not in the formal hearing, and not been convinced by it, then it seems unlikely that they'll change their minds if, as I believe is your right, the hearing is reopened.

The thing was in arbitration they advised the other party they would get a 20% penalty (so indicated they would rule in my favour). The other party refused this and insisted on a full hearing.

They then added someone else to the PC who had not heard the witness evidence first hand.

I was pretty sure that they had not followed procedure at the time but did not have a rule book to hand.

As it is the request to re-open has been granted and a hearing will be arranged once all parties are available.
Paul
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Brass View Drop Down
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Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 17 Mar 14 at 11:57am
How many were buzzing around in the arbitration?

It's supposed to be one arbitrator and two parties.
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jeffers View Drop Down
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Posts: 3048 		Post Options Post Options   Quote jeffers Quote  Post ReplyReply Direct Link To This Post Posted: 17 Mar 14 at 2:02pm
That is what happened. The arbitrator then became chair of the PC and called in another person to sit on the PC. 

He decided that as he had heard the witnessed evidence himself he could speak for the witness in the hearing.

I did have to remind him several times over things the witness clearly said and he agreed the witness had said that.
Paul
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winging it View Drop Down
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Posts: 3958 		Post Options Post Options   Quote winging it Quote  Post ReplyReply Direct Link To This Post Posted: 17 Mar 14 at 7:37pm
The whole thing was entirely random and badly set up, plus your PC had someone on it with too little racing experience.  You did the right thing in asking for it to be reheard.

Edited by winging it - 17 Mar 14 at 7:38pm
the same, but different...

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Posts: 1459 		Post Options Post Options   Quote sargesail Quote  Post ReplyReply Direct Link To This Post Posted: 17 Mar 14 at 8:26pm
Just as well they didn't hear your witness - so you have clear grounds for a re-hearing!  I don't mind losing a protest (much) I do mind when the procedure is poor and the committee mess it up.
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Brass View Drop Down
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Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 17 Mar 14 at 9:05pm
How come there was a witness in an arbitration hearing?
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winging it View Drop Down
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Posts: 3958 		Post Options Post Options   Quote winging it Quote  Post ReplyReply Direct Link To This Post Posted: 17 Mar 14 at 9:11pm
Random and badly set up......
the same, but different...

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