Judicial Notice and Personal Knowledge
| Date | 01 January 1979 |
| Author | Colin Manchester |
| DOI | http://doi.org/10.1111/j.1468-2230.1979.tb01507.x |
| Published date | 01 January 1979 |
JUDICIAL
NOTICE AND PERSONAL KNOWLEDGE
IT
is
a
fundamental concept of the law of evidence that proof must
be adduced in order to establish the existence of
a
fact. There are,
however,
a
number
of
ways in which facts can be established by
means other than formal proof, One such way
is
via the doctrine
of
judicial notice.
According to Lord Sumner in
Commonwealth Shipping Represen-
tative
v.
P.
&
0.
Branch Services,’
“
judicial notice refers to facts
which
a
judge can be called upon to receive and act upon either
from his general knowledge of them or from inquiries to be made
by himself for his own information from sources to which it
is
proper for him to refer.” These facts can thus be ones of which the
judge has either actual or acquired knowledge, and they are usually
refered to as
“
notorious facts
”
on account
of
their being common
knowledge either throughout the country or within the locality of
the court.
The concept of judicial notice
is,
then, that the judge can make
use
of
his general knowledge where some fact has to be established
and take notice
of
the existence of that fact without requiring it to
be formally proved. In fact, it is evident that judges frequently do
make use
of
their general knowledge. Indeed, as Thayer2 quite
rightly points out,
“
in conducting
a
process of judicial reasoning,
as
of
other reasoning not
a
step can be taken without assuming some-
thing which has not been proved.” However, neither judge nor jury
can make use of their personal knowledge.
This rule with regard to the use of personal knowledge, .although
long established for judges: is, for juries, of relatively recent origin.
For centuries, juries freely used their private knowledge in arriving
at their verdict, and, indeed, it was regarded as their duty to do
so.
In the second edition, published in
1735,
of the anonymous
Law
of
E~idence,~
it was stated in
Bushell’s Cases
that as far as the
jury
were concerned,
“
the law supposeth them to have knowledge of and
capacity to try the Matter in Issue (and
so
they must), though no
evidence were given on either side in court; but to this the Judge
is
a Stranger;
i.e.
he cannot Judge without Evidence, though the Jury
may.”
The first reported case establishing the rule that juries are not
1
[1923] A.C. 191, 212.
a
A
Preliminary Treatise
on
Evidence
(1898),
p. 219.
3
With regard to the position
of
the judge having personal knowledge
of
a man’s
guilt
or
innocence, “the Judge ought not
to
decide accordlng to his own free
will
.
.
.
he
is
obilged to proceed
not
In accordance with private knowledge, but in
accordance with public knowledge, which depends on witnesses
”:
Joannes Baptlsta
Corradus’s Responsa
Cosuum
Conscienliae, p. 269, published in Perugia in 1596.
See generally
“
The Conscience of the Court
”
(1932)
48
L.Q.R. 506.
4
This was the earliest English treatlse
on
the subject, published originally in 1717.
0
(1670) Vaugh. 135.
22
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