2012 High Court and Social Facts 319
SF find their way into judi cial reasoning in a range of ways. SF may be the subject
of expert evidence at trial, or may be admitted into evidence via evident ial rules
dealing with documentary and other special forms of e vidence.
SF may be referred to
in counsel's submissions or, rarely, in the High Court SF may source from the
submissions of amicus curiae or interveners.
Often SF appear to source from a
judge's own knowledge or from a judge's own research (stated or unstated). It is
unclear what the legal basis is for a judge to refer to SF (whether sourced from
empirical research or otherwise) when that material has no t been proved in evidence at
trial. There is an unresolve d question as to whether the doctrine of judicial notice or its
statutory equivalent s 144 of the Evidence Acts
apply only to adjudicative facts or can
also apply to allow (or disallow) judicial use of SF not otherwise proved in evidence.
Judicial use of more controversia l SF may clearly fall outside the common law doctrine
of judicial notice and s 144, particularly given many SF a re not 'notorious' or
universally and widely accepted.
Justice Heydon has suggested some S F are,
however, of the 'common knowledge' kind whic h form an inherent part of the judicial
law making function and fall outside the rules of evidence.
The recent High Court decision of Aytugrul v R
appears to interpret s 144 of the
Evidence Acts to restrict judicial use of empirical research in support of SF used in the
determination of legal principles unless the material has been admitted into evidence
at trial, or the material otherwise fulfils the strict requiremen ts of s 144 and notice has
been given to the parties.
The High Court held that published empirical research
Justin Malbon, 'Judicial Values' in Ian Freckleton and Hugh Selby (eds), Appealing to the
Future: Michael Kirby and His Legacy (Law Book, 2009) 579, 581.
For example, SF material may be introduced pursuant to evidential rules regarding official
documents and official records, or via particular sections of legislation such as the Family
Law Act 1975 (Cth). See Mullane, above n 2, 448–52.
The role of interveners and amicus curiae in the High Court is relatively restricted, see
George Williams, 'The Amicus Curiae and Intervener in the High Court of Australia: A
Comparative Analysis' (2000) 28 Federal Law Review 365.
Evidence Act 1995 (Cth); Evidence Act 1995 (NSW); Evidence Act 2001 (Tas); Evidence Act 2 008
(Vic). Section 144 of the Evidence Acts provides that 'proof is not required of knowledge that
is not reasonably open to question', and is common knowledge in the relevant locality or
generally, or is 'capable of verification by reference to a document' where the authority of
the document cannot be reasonably questioned.
See discussion in Heydon, a bove n 3; Mullane, above n 2; Stephen Gageler , 'Fact and Law'
(2008–9) 11 Newcastle Law Review 1, 18–29; Zoe Rathus, 'A Call for Clarity in the Use of
Social Science Research in Family Law Decision -making' (2012) 26 Australian Journal of
Family Law 81, 84 –9; Bradley Selway, 'The Use of History a nd Other Facts in the Reasoning
of the High Court of Australia' (2002) 20 University of Tasmania Law Review 129, 131.
Hon J D Heydon, Cross Evidence (LexisNexis, 8thed, 2010) 159. See also Holland v Jones (1917)
23 CLR 149
, 153. For further recent discussion of the doctrine of judicial notice see Paul
Burgess, 'The Application of the Doctrine of Judicial Notice to Online Sources' (2010) 3(1)
Queensland Law Student Review 1.
Aytugrul v R (2012) 286 ALR 441, 463-4 . See also Selway, above n 13. This matter was
also debated by Callinan J and McHugh J in Woods v Multi-Sport Holdings Pty Ltd (2002) 208
CLR 460 with McHugh J (at 477–8) arguing that SF empirical material was within the scope
of judicial notice and could be used to define the scope and validity of law and Callinan J
suggesting that the use of such material was impermissible (at 184–5).
(2012) 286 ALR 441.
See above n 12.