Section 144: Judicial notice of matters of common knowledge

What is ‘common knowledge’ for the purpose of judicial notice?

17.9 Section 144 mirrors the common law doctrine of judicial notice as it relates to matters of common knowledge.^[9] Section 144(1) provides:

Proof is not required about knowledge that is not reasonably open to question and is:

(a) common knowledge in the locality in which the proceeding is being held or generally; or

(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.

17.10 The main difference between paragraphs (a) and (b) is that the latter may require reference to an official document to discover or confirm a fact of which judicial notice has been taken. No such inquiry is needed for facts that form part of the ‘common knowledge’ referred to in paragraph (a).^[10] Examples of the two types include: in relation to paragraph (a), the existence of the Internet; and in relation to paragraph (b), a ‘meteorological document to prove when the sun rose on a particular day’.^[11]

17.11 Common knowledge covers facts, both of local and general knowledge, which are so widely recognised that requiring proof of them would be a superfluous exercise. Common knowledge can encompass a vast number of facts that can change with time and place, including those created by advancements in science, technology and medicine.

17.12 While matters of common knowledge falling within s 144 need not be proved formally, parties to a proceeding are not precluded from leading formal evidence of such matters.^[12]

How does a judge acquire ‘common knowledge’?

17.13 Section 144(2) allows a judge to acquire common knowledge or knowledge sourced in an authoritative document in any way that the judge thinks fit. A court (including a jury, if there is one) must take such knowledge into account (s 144(3)).

17.14 If a judge intends to take judicial notice of such matters, he or she must, to ensure that a party is not unfairly prejudiced, give the parties the opportunity to make submissions as to how this knowledge should be acquired or taken into account (s 144(4)). Section 144(4) thus acts as a safeguard on the use of judicial notice by allowing the parties to have some input into the process of the judge acquiring ‘common knowledge’ and reinforces the judge’s obligation to accord natural justice to the parties.

Issues Paper 28

17.15 The submissions received in response to IP 28 indicate that s 144(4) is operating effectively.^[13] One submission noted that ‘the purpose of s 144(4) is to ensure that the parties are given an opportunity to address whatever facts judicial notice is to be taken of, not to prevent them from being taken notice of at all’.^[14]

Discussion Paper 69

17.16 The only issue raised in DP 69 for further comment was the question whether there should be an additional legislative provision allowing judges to take account of ‘social facts’. Question 15–1 stated:

Should the provisions relating to judicial notice allow judges to take account of social facts? Are there more effective ways of dealing with this issue?^[15]

17.17 This issue was raised in a submission from Kylie Burns of Griffith University Law School in response to IP 28. She raises the possibility that social facts, being statements about human behaviour, nature of society and its institutions and social values, should be included in the judicial notice provisions.^[16]

17.18 Kylie Burns’ submission, while identifying some merit in including ‘social facts’ in evidential rules relating to judicial notice, also cautions that the incorporation of social facts into formal evidential rules ‘could prove administratively difficult and costly to implement.’^[17]

Submissions and consultations

17.19 Four submissions and one consultation address Question 15–1.^[18] No other issues are raised in submissions and consultations in relation to the judicial notice chapter in DP 69.

17.20 No submissions or consultations support the specific inclusion of ‘social facts’ into the statutory rules pertaining to judicial notice. While Victoria Police ‘does not oppose’ social facts being incorporated into the judicial notice provisions, it suggests that judicial notice of such facts is currently addressed adequately under s 144.^[19]

17.21 Professor Kathy Mack of Flinders University Law School, the New South Wales Public Defenders Office (NSW PDO), and a judicial officer suggest that the more effective way of dealing with ‘social facts’ is through expert/opinion evidence.^[20]

17.22 Professor Mack notes:

Allowing expert evidence as indicated in Proposal 8–1 and Question 8–2 [of DP 69] are examples of useful steps to rectify gaps and misunderstandings in allegedly common or general knowledge.^[21]

17.23 A concern is also expressed that if ‘social facts’ are specifically incorporated into the judicial notice provisions, it may allow a judge’s subjective views on ‘normative’ social values to creep, unexamined and unchallenged, into the judge’s decision-making.^[22]

17.24 The NSW PDO comments:

Social facts can be proved, for example by expert evidence. If judges take judicial notice of ‘social facts’, which have not been proved in evidence, there is a real risk of injustice, because the parties are unlikely to have addressed their arguments on all the material being taken into account in judicial decision making.^[23]

17.25 A judicial officer notes that judicial officers are rarely invited to take judicial notice, and this usually occurs, if at all, in final submissions. Sometimes the facts are notorious, and the request will be uncontested. If there is going to be a debate about whether judicial notice can be taken, the issue is argued in court and can be resolved by giving leave to adduce evidence in relation to the fact claimed. If a fact is close to notorious, it is usually easily proved by admissible evidence.^[24]

The Commissions’ view

17.26 As discussed above, s 144(4) gives parties the opportunity to respond if judicial notice is taken of a matter of common knowledge. Arguably, this includes a matter which can be classified as a ‘social fact’. Hence, s 144(4) can be an effective way of dealing with such matters.

17.27 The Commissions consider that s 144 is operating effectively in practice and make no recommendation for change.