Judicial notice at common law

17.3 In DP 69, the Commissions outline briefly how ‘judicial notice’ operates at common law and the reasons for its existence.[4] At common law judicial notice may be taken of

facts, which a judge can be called upon to receive and to act upon, either from his [or her] general knowledge of them, or from inquiries to be made by himself [or herself] for his [or her] own information from sources to which it is proper for him [or her] to refer.[5]

17.4 Judicial notice can be summarised as covering two broad types of fact:

  • matters of such common knowledge that they are rarely contentious. These cover broad classes of indisputable scientific, medical, cultural, and historical facts, including: the laws of physical nature; well-known social habits and usages; and notorious historical events, such as World War II;[6] and

  • matters the court may be assumed to know already by virtue of its stature and expertise, such as the validity of legislation put before it.[7]

17.5 Under the uniform Evidence Acts, ‘judicial notice’ is provided for in three sections of the Act: ss 143, 144 and 145. The sections are intended to reflect, and simplify, the common law.[8] Each section covers a range of facts that are so commonly acknowledged that they cannot reasonably be open to dispute.

17.6 In DP 69, the Commissions do not put forward any proposals in relation to ss 143, 144 and 145. Indeed, there was little support for any reform of the three sections, which suggests to the Commissions that the sections are working well.

[4] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [15.1]–[15.3].

[5] Commonwealth Shipping Representative v P & O Branch Service [1923] AC 191, 212 (Sumner LJ).

[6] J Stone and W Wells, Evidence: Its History and Policies (1991), 155–162.

[7] Ibid, 155.

[8] See Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [973]; J Gans and A Palmer, Australian Principles of Evidence (2nd ed, 2004), 37.