Appeals rely on the facts found at the first hearing and its critical to get these right from the beginning.

During a protest hearing it is imperative that the protest committee are able to establish the facts found. There will be varying opinions and versions of how a particular incident played out on the water and the committee must decide which version of the evidence is the most correct.

As the evidence from the parties are being heard, each committee member should individually develop their understanding of how the incident played out, which rules apply to the incident and the facts needed to develop their understanding.  When it comes time for the protest committee to ask questions, they should stick to asking questions around facts that have not already been presented. For example, if the rules include RRS 12,11 and 15, a committee member would ask questions to determine when an overlap occurred, how close the boats were and how much time went by before a boat altered course. 

Once all the evidence has been heard it is the protest committee’s responsibility to find the facts and make a decision, often and ideally all committee members have individually come to the same decisions with their facts found and formed their conclusions. The committee chair can then ask each member for their conclusion, if all members agree this indicates that the facts they have found would also be in agreement. However, if the members have not all reached the same conclusion this allows the committee to quickly focus on the differences and discuss.

Once the facts found have been established and written up in the hearing decision, they cannot be overturned in an appeal. The Appeal Panel was not present at the original protest, so they rely heavily on the facts found and are compelled under the RRS to accept them as being correct. During an appeal the facts found do not come into question and are used by the Appeal Panel to ensure that the original protest had the correct outcome, or a rule was interpreted the correct way.

As a protest committee member, getting the facts straight is an important part of the role to ensure fairness at the time of the protest and a detailed description for if the protest goes to appeal.

As a competitor, it is as much your responsibility to make sure the right information, and complete information gets presented in a hearing and recorded in the decision in case the matter does get appealed.

By Melanie Peasey https://www.sailing.org.au/about/ourstaff/