Judicial notice in evidence law allows a court to accept widely accepted or easily verifiable facts without needing specific evidence to be provided to the court. It is a deviation from the general rule that facts relied upon in court must be proved through evidence. Evidence usually comes in the form of a witness giving oral evidence, a party tendering a document or an expert explaining a specialised or technical matter.
Taking matters on judicial notice is an exception to the general rule that there must be evidence to make certain findings of fact. This can reduce the time and cost of proceedings and burden on parties potentially having to seek to adduce specific, or hard to access, pieces of evidence which ultimately might only go to proving something that is common knowledge anyway. However, judicial notice is confined within strict boundaries. It cannot be used to overcome a deficiency in the evidence by relying on an assumption, a judge’s personal knowledge or information that is reasonably capable of dispute.
What does judicial notice mean?
Judicial notice is a process through which a court may treat a matter as known, or as something that can be reliably confirmed, without requiring it to be proved in the usual way.
The principle is based on a simple idea: court time generally should not be spent proving matters about which there could be no sensible disagreement. Depending on the law that applies and the circumstances of the case, possible examples may include:
- the existence or commencement of Australian legislation;
- a basic calendar fact;
- a widely recognised historical event; or
- local or general knowledge that is genuinely beyond reasonable dispute.
These examples are only a guide. A matter will not necessarily qualify simply because it falls within one of these broad categories. The court may need to consider the exact fact, the reliability of the source and the importance of the fact to the particular proceeding.
The rules are not entirely uniform across Australia
Evidence law can differ between Australian jurisdictions. The Uniform Evidence Law applies in federal courts and has also been adopted in New South Wales, Victoria, Tasmania, the Australian Capital Territory and the Northern Territory.
The other jurisdictions have their own evidence legislation and may also rely on common-law principles to different degrees. It is therefore important to check which rules apply in the particular court and proceeding.
The position may also be different in a tribunal or in a proceeding where the ordinary rules of evidence have been relaxed, changed or do not apply in full.
Judicial notice of Australian law
Section 143 of the Evidence Act 1995 (Cth) generally means that a party does not need to prove the provisions or commencement of Australian Acts and legislative instruments. A judge may obtain information about these matters in any way the judge considers appropriate.
This highlights an important difference between Australian and foreign law. An Australian court will ordinarily identify and apply Australian law as it considers appropriate. Foreign law, by comparison, will usually need to be proved through one of the recognised methods or potentially through an expert.
Common knowledge under section 144
In a proceeding covered by the Uniform Evidence Law, section 144 may remove the need to prove knowledge that:
- is not reasonably open to question; and
- is either commonly known in the place where the proceeding is being heard or more generally, or can be checked against a document whose authority cannot reasonably be doubted.
Both requirements generally need to be met. A statement may not qualify simply because it appears believable, has been repeated often or can be found online. It would need to be beyond reasonable question and either genuinely common knowledge or supported by a source whose authority cannot reasonably be questioned.
A judge may obtain this type of knowledge in any way the judge considers suitable. If the requirements are met, section 144 requires the court—including the jury, if there is one—to take that knowledge into account.
The parties must be treated fairly
Judicial notice would not usually allow a court to decide an issue by relying on private or undisclosed research. Section 144 requires the judge to give each party an appropriate opportunity to make submissions and refer to relevant information, where this is needed to prevent unfair prejudice.
This protection may be important because the parties could disagree about:
- the exact fact the court is being asked to accept;
- whether the fact is genuinely common knowledge;
- whether the proposed source is sufficiently authoritative;
- whether the information has changed over time; or
- whether the fact is being used for a broader purpose than the source can support.
A court may raise judicial notice on its own initiative. Even so, it must still follow the requirements of procedural fairness.
The limits of judicial notice
Judicial notice would not usually allow a judge to rely on personal opinions, beliefs or experiences. In Holland v Jones (1917), the High Court explained that, at common law, judicial notice may apply to facts that are so widely known that an ordinary person could reasonably be expected to know them.
The Court distinguished facts of this general kind from particular facts about the dispute before the court. A judge generally cannot use private knowledge of a particular fact as a substitute for evidence.
Judicial notice is also unlikely to be available merely because proving something would be difficult or inconvenient. A court may be less willing to proceed without evidence where the fact is specific, technical, open to change, controversial or important to the outcome of the case.
The decision in Gattellaro v Westpac Banking Corporation (2004) shows why an assumption about commercial practice may not amount to common knowledge. The lower court had proceeded on the basis that Westpac used a standard form of guarantee. It then used a separate document to infer the contents of an earlier guarantee. The High Court found that the proposition was neither common knowledge nor capable of being confirmed by a source whose authority was beyond reasonable question. The parties had also not been given a proper opportunity to respond to the issue. As a result, the High Court found that the original decision in taking this matter on judicial notice was in error.
In Aytugrul v The Queen (2012), the appellant referred to psychological research about how jurors may understand different ways of presenting DNA statistics. The High Court found that the proposed general statement about human understanding and behaviour had not been shown to be beyond reasonable dispute or sufficiently accepted in the relevant field. The fact that academic studies had been published was not, by itself, enough to make the statement suitable for judicial notice.
Practical considerations for parties
It may be risky for a party to assume that a court will take judicial notice simply because a fact might appear to be obvious or common knowledge. If the matter is important to a claim, defence or criminal charge, it will usually be safer to prepare admissible evidence unless there is a clear basis for proceeding without it.
A party asking the court to take judicial notice would usually need to identify:
- the exact fact the court is being asked to accept;
- the legislation or common-law principle on which the request is based;
- why the fact is not reasonably open to question;
- any authoritative source used to confirm it; and
- why the fact is relevant to the proceeding.
A party opposing the request may point to a genuine disagreement, conflicting sources, changes over time, differences between local areas or unfairness arising from the way the issue was raised.
Conclusion
Judicial notice may be a useful but carefully limited exception to the usual requirement that facts be proved. It generally applies only to specified matters of Australian law and facts that are genuinely beyond reasonable question. It would not usually extend to disputed facts, specialised opinions or assumptions about what is likely to have happened.
Whether judicial notice is available may depend on the jurisdiction, the type of proceeding, the exact fact and the reliability of the source. If the issue could affect the outcome of a case, it may be sensible to obtain legal advice before deciding that formal evidence is unnecessary.
