This chapter examines the exceptions to the general rule that all facts in issue, or relevant to the issue, in a given case must be proved by evidence. It shows that sometimes, the judge, or trier of fact, is entitled to find a fact of their own motion: judicial notice may be taken of that fact. Alternatively, a party may formally admit a relevant matter. In addition, a matter may still be determined against a party because the law precludes them from contesting it. They are then ‘estopped’, as when the same matter has been determined against them and in favour of their opponent by a binding and conclusive judgment of a court. Finally, this chapter considers the wider question of the status of judicial findings in other proceedings.
Chapter
II. Matters not requiring proof and judicial findings as evidence
Chapter
5. Proof without evidence
This chapter examines cases in which a court will, or may, find facts in issue or relevant facts established without requiring proof by means of evidence. Specifically, it considers cases in which: (a) facts are formally admitted for the purpose of the proceedings, i.e. are taken to be proved without the need for evidence; (b) notorious or readily demonstrable facts are noticed judicially by the court, i.e. are facts of which the court will acknowledge the truth without the necessity for proof; and (c) facts are presumed in favour of the party asserting them, i.e. where a party proves one fact (the primary fact) and a second fact (the presumed fact) will also be taken to have been proved, in the absence of evidence to the contrary.
Chapter
4. Proof of facts without evidence
Facts in issue and relevant facts are treated as established by the courts only insofar as they are proved by evidence. This chapter discusses three exceptions to this general rule: (i) some facts may be presumed in a party’s favour in the absence of proof or complete proof, including marriage, legitimacy, death, the regular and proper performance of public or official acts, sanity, and negligence; (ii) a fact will be treated as established where the court takes judicial notice of it either (a) without enquiry, in the case of facts that are beyond serious dispute, notorious or of common knowledge or (b) after enquiry (usually political facts, customs, professional practices, and historical and geographical facts); and (iii) a fact ceases to be in issue when a party has formally admitted it.
Chapter
4. Proof of facts without evidence
Facts in issue and relevant facts are treated as established by the courts only insofar as they are proved by evidence. This chapter discusses three exceptions to this general rule: (i) some facts may be presumed in a party’s favour in the absence of proof or complete proof, including marriage, legitimacy, death, the regular and proper performance of public or official acts, sanity, and negligence; (ii) a fact will be treated as established where the court takes judicial notice of it either (a) without enquiry, in the case of facts that are beyond serious dispute, notorious, or of common knowledge or (b) after enquiry (usually political facts, customs, professional practices, and historical and geographical facts); and (iii) a fact ceases to be in issue when a party has formally admitted it.
Chapter
14. Alternative Pathways to Proof
To require evidence to be called to prove every single matter requiring proof in a trial would serve no useful purpose and lead to the unnecessary prolongation of trials. On occasion, therefore, a matter may be regarded as proved even though no evidence has been adduced to prove it in the normal way. Chapter 14 examines three devices used in the law of evidence to achieve this. These are formal admissions, judicial notice, and presumptions.
