With my (IJIT / NA) status (and I do apologise in advance if my readings have not yet been thorough enough or gaps in my thinking etc), I have been reading and pondering these matters, and would be grateful for any help or insights that my learned colleagues may care to proffer, as follows.
As we well know, the integrity of sound, proper, uniform and lawful protest decision-making is of paramount importance to all concerned (for MNAs, organisers, sponsors, boat owners and competitors etc alike).
At the ‘heart & soul’ and integrity of such protest decision-making, is the [standard of proof] so required and the soundness of the evidences provided accordingly.
Certainly, in Rule 69 (69.2) the required (medium-level) standard of proof is expressly stated (“…the test of the ‘comfortable satisfaction’...”).
Even then, “…bearing in mind the seriousness of the alleged misconduct …if the standard of proof in this rule conflicts with the laws of a given country, the National Authority may, with the approval of World Sailing, change it with a prescription to this rule.” (e.g. high-bar “proof beyond a reasonable doubt” is stated in 69.2 (g). While this provision is provided singularly for this rule, it could possibly apply to a range other incidents / rule as well (e.g. aggravated collisions). It seems to me that Judges / Protest Committees must vigilant on these matters - and to engage local expert counsel (for any matters that may conflict or otherwise with the laws in the given jurisdiction – that can vary significantly, as seen my own professional experiences)?
However, for other rules it appears to be perhaps somewhat vague as to what exact standard is to be applied (?), with ‘adequate evidence’ being so stated – are we infer that the (lesser / ‘low bar’) standard of proof for the rest of the rules is one of ‘balance of probabilities’ (preponderance of the evidence’)?
In any event, critical to achieving these standards is through the [evidence or evidences] provided (e.g. no notion of ‘corroborating’ evidence is expressed found).
It just seems to me that more succinct published definitions of these facets and matters would be helpful for us all (?).
A protest hearing is not a legal proceeding. It is an administrative process. Many rules of law, for example, the rules of evidence, are quite inapplicable.
The protest process can best be conceived of as a process of collaboration between the parties and the protest committee to determine the facts relevant to a protest and correctly apply the rules to those facts so as to decide which boats broke which rules and what penalties if any are appropriate.
The standard of proof under RRS 69 is comfortable satisfaction, which is explained in Case 122 and about which there is abundant further jurisprudence from the CAS, UK, and European law.
The standard of proof for all other matters is balance of probabilities (RRS 63.5(a)). There is no scope in the RRS to vary this standard, however judges may wish to apply a somewhat more stringent test than 51/49. Australians might apply the 'Briginshaw standard'. I think there is somewhat equivalent EW law jurisprudence and presumably similar in NZ.
There is absolutely no scope for a protest committee to 'engage expert counsel'. Judges are expected to be experienced sailors with a good knowledge of the rules. That is quite sufficient. If they fall into error, then the Appeals process exists.
As to corroboration, that is taken up in the requirement in RRS 65.3(a) for judges to 'consider the evidence and decide what weight to give it'. Obviously, an assertion that is corroborated will carry more weight than one that is not.
no further explanation can be given.
Comfortable satistaction was a real shock, for a minor misconduct could be an unsupported allegation, but for serious misconduct could close to the criminal standard of beyond resonable doubt. A real challenge for a protest committee..
Normally we have ballance of probability, sort of more likley than not.
How do we decide?
Well not easy for a simple prrotest committee.
We can now accept heresay evidence, but whilst good, it makes life difficult.
A finish record, in writing is heresay but is easily accepted as good evidence.
What was said in the bar may not be.
Difficult for the pc.
In a rule book covering the world with some very shady countries, you have to have an out to cope with extreme laws.
Many other sports have 'judges' that do all sorts of things unlike the fact finding and rule application that we do.