Presumption

Question 1

What are the two ways in which a court takes evidence into consideration without anyone testifying about it?

Answer 1

1. Judicial notice
2. Presumption

Question 2

What is a presumption?

Answer 2

A presumption is a legal rule that allows the court to assume a fact is true until it is proven otherwise.

Question 3

What are the classifications of a presumption?

Answer 3

1. Irrebutable presumptions of law
2. Rebuttable presumptions of law
3. Presumptions of fact.

Question 4

What is an irrebuttable presumption?

Answer 4

A legal assumption that cannot be contested or disproven, regardless of any evidence to the contrary.

Question 5

What is an example of an irrebuttable presumption?

Answer 5

Capacity of minors under 7 years of age.

Question 6

What is a rebuttable presumption of law?

Answer 6

A rebuttable presumption is an assumption made by the court that stands unless the opposing party provides evidence to disprove it.

Question 7

When does a rebuttable presumption of law come into operation?

Answer 7

Once some basic fact is proved and stands until contradicting evidence destroy it.

Question 8

What is an example of a rebuttable presumption of law?

Answer 8

Presumption of innocence.

Question 9

What are the effects of rebuttable presumptions of law on the burden of proof?

Answer 9

1. Creates a permissible inference which if the court chooses to do, places a tactical burden on the accused who may call for evidence in rebuttal but is not obliged to do so
2. Creates a mandatory conclusion, where a court draws a mandatory conclusion, it casts an evidentiary burden on the accused who is obliged to call for evidence in rebuttal
3. Drawing of a mandatory conclusion may also have the effect of casting the primary burden of proof on the accused in the form of a reverse onus.

Question 10

What is a rebuttable presumption of fact?

Answer 10

Inferences that may be drawn from particular factual circumstances.

Question 11

How does a presumption of fact differ from a presumption of law?

Answer 11

1. It is not a rule of law
2. Has no effect on the primary burden of proof in its true sense.

Question 12

What is judicial notice?

Answer 12

A legal doctrine that allows a fact to be accepted by a judicial officer without proof where it is so well known that it cannot reasonably be doubted.

Question 13

What can be a judicially noticed fact?

Answer 13

1. A fact in issue
2. An evidentiary fact adduced to show the existence of a fact in issue

Question 14

What do presumption and judicial notice do?

Answer 14

Save time and trial costs.

Question 15

What is the evidentiary effect of a court taking judicial notice of fact?

Answer 15

1. Fact need not be proved and is no longer in issue
2. Establishes a binding precedent for all courts
3. Cannot be rebutted but any inferences drawn from the judicially noticed fact may be rebutted during the ordinary course of trial.

Question 16

What are the categories of facts that may be taken judicial notice of?

Answer 16

1. Well-known facts based on general knowledge
2. Local facts well-known to reasonably informed persons within the jurisdiction of a particular court
3. Facts which may be easily ascertained by reference to authorised sources

Question 17

What else can a court take judicial notice of?

Answer 17

The law,

Question 18

Which cases illustrate the CC drawing a distinction between adjudicative and legislative facts?

Answer 18

S v Lawrence, S v Negal, and S v Solberg.

Question 19

When is judicial notice of legislative facts required?

Answer 19

Where a court is faced with questions concerning the constitutional validity of a statute or common law rule based on grounds of public policy (Rule 31 of the CCR may be used a justification for taking judicial notice of these legislative facts).

Question 20

What are the legal rules applicable to judicial notice?

Answer 20

1. Facts and material introduced under judicial notice need not be formally introduced by a witness
2. Where facts may be judicially noticed without undertaking an inquiry or referring to a reliable source, these are considered irrefutable
3. It is not permissible for a party to lead evidence to disprove these facts.
4. Where it is necessary to ascertain the facts from a source, evidence may be led disputing the reliability of the source, such facts considered only to be prima facia proof.
5. Party may appeal against a court’s decision to take judicial notice of a fact
6. When deciding to take judicial notice of a fact. court should first inform the parties of its intention to do so,