Establishing facts, exceptions and presumptions Flashcards
General rule
A general rule of evidence is that all facts in issue and facts relevant to the
issue must be proved by evidence.
Exceptions
The two main exceptions to the general rule are when no evidence needs to be
given of facts because:
* judicial notice is taken
* the facts are formally admitted.
Judicial notice
When a court takes judicial notice of a fact, it declares that it will find that the
fact exists, or will direct the jury to do so even though evidence has not been
established that the fact exists. An example of judicial notice being made
where a fact is clearly established would be if the date of Christmas were a
fact in issue. Rather than the party who wished to establish the fact having to
call in an expert witness to swear that Christmas is celebrated in New Zealand
on 25 December, judicial notice would be taken of the date.
The Evidence Act 2006 provides for judicial notice in ss128 and 129, which
provide that:
128 Notice of uncontroverted facts
(1) A Judge or jury may take notice of facts so known and accepted either generally or in the locality in which the proceeding is being held that they cannot reasonably be
questioned.
(2) A Judge may take notice of facts capable of accurate and ready determination by
reference to sources whose accuracy cannot reasonably be questioned and, if the
proceedings involve a jury, may direct the jury in relation to this matter.
129 Admission of reliable published documents
(1) A Judge may, in matters of public history, literature, science or art, admit as evidence any published documents that the Judge considers to be reliable sources of information on the subjects to which they respectively relate.
(2) Subpart 1 of Part 2 (which relates to hearsay evidence) and subpart 2 of Part 2 (which relates to opinion evidence and expert evidence) do not apply to evidence referred to under subsection (1).
Judicial notice
(continued)
Section 128 is concerned only with facts that are facts in issue or relevant to a
fact in issue. Section 128(1) concerns notice of facts known and accepted
generally, or in the locality. This allows for facts to be judicially noticed even
where the facts are not known in the wider, national population (for example,
the date and location of an annual carnival).
Section 129 codifies the common law exception to the hearsay rule that
admitted accredited histories, scientific works and maps may be admitted as
evidence in order to prove facts of a public nature.
Facts formally admitted
In a trial, the counsel for either party can accept that some evidence is accepted
or proven at the outset, so it need not be discussed. Sections 9(2) and 9(3) of the
Evidence Act 2006 provide that the defendant or the prosecution may admit any
fact, and therefore dispense with proof of that fact.
Presumptions
Where no direct evidence is offered or is obtainable, disputed facts are
sometimes inferred from other facts which are themselves proved or known.
In such cases, the inference is called a presumption.
Presumptions may be of law or of fact.
Presumptions of law
Presumptions of law are inferences that have been expressly drawn by law
from particular facts.
Presumptions of law may be either conclusive or rebuttable.
For example, a conclusive and irrebuttable presumption would be that a child
under ten years of age is unable to be convicted (Crimes Act 1961, section
21(1)). These are, in effect, rules of substantive law as they refer to the
substance of the law rather than the procedure contained in the law. A
rebuttable presumption would be that all defendants are innocent until proven
guilty.
Presumptions of fact
Presumptions of fact are those that the mind naturally and logically draws
from the given facts. For example, one presumes that a person has guilty
knowledge if they have possession of recently stolen goods.
Presumptions of fact are simply logical inferences, and so are always
rebuttable.
