Certain facts may be proved without bringing forward verbal evidence. Judges take so-called “judicial notice” of certain facts which are so notorious or established that they do not require proof. In the case of judicial notice, the judge may decide the matter with reference to his own knowledge or with reference to sources which are incontrovertible and reliable.
When something is judicially it need not be proven by evidence. Judicial notice will be taken of matters of common knowledge, in everyday life. There are no limits in principle to what may be judicially noted. Matters of everyday experience, geographical, historical facts, economic and social circumstances may be noted. They must be so well established that they are not open to serious dispute.
That which may be judicially noticed may change over time, relative to the current state of knowledge and the circumstances of society. The courts take notice matters such as periods of human gestation, facts of everyday life, economic facts of life. They take notice of notorious facts and matters of common knowledge which can be verified with reference to incontrovertible sources.
In a sense, judicial notice covers matters of the everyday meaning of words in the context of interpreting statutes. Judicial notice is taken of statutes and laws. Statutes Instrument may have to be proved where they are not in an area, with which the judge deals routinely.
The Court rules encourage parties to litigation, to admit matters which are not seriously disputed. There are pre-trial procedures which allow a party to call upon his opponent to admit certain facts. This may be done formally under court rule, informally by agreeing or in the context of case management.
If a party unreasonably refuses to admit facts, he runs the risk of being charged with the cost of proving those facts even if he is otherwise successful. The facts to be proven at trial should be only those, which are seriously disputed. A defendant can force the claimant to prove to all aspects of his claim. However, he may be penalised in cost, if he does not admit matters which are not seriously contested.
Physical objects or so-called “real” evidence, may be admitted in certain cases. However, verbal evidence will normally be required to explain their significance to the case and their authenticity. If goods are alleged to be defective, the judge may inspect them. In personal injury trials, the judge may be shown the physical injuries.
The physical demeanour, tone and appearance of the witness are always relevant to credibility. In a sense, the direct perception of the witness, particularly in cross-examination will consciously or unconsciously affect the judge\’s determination of the truth and reliability of evidence.
On occasions the court may adjourn to an out of court venue, to inspect the relevant location. Where an object is too large to produce in court, inspection may be appropriate. More commonly the court may use photographs or videos, with the requisite verbal proof of their relevance and connection to the matter in dispute.
Generally the judge, or if there is a jury, the judge and jury will attend together with the parties and their representatives. The full jury should see the particular location when it is offered as real evidence. The judge should be accompanied by the parties when they visit the site or location relevant to the dispute. This follows from the fundamental principle that the judge (and jury) must decide the disputed matters on the basis evidence offered in the presence of the parties and to their knowledge. They should not judge the matter from private facts, unknown to both parties.
Photographs, Recordings and Video
Photographs, sound and video recordings (and their electronic equivalent) may be real evidence in a trial. They are not evidence of their contents, other than where they are specifically allowed by way of exception to the hearsay evidence exclusionary rule. They are effectively assertions as to the truth of their contents by persons who are not witnesses.
Photographs, videotapes and equivalent information automatically produced are generally allowed in practice. If there is any question as to the accuracy or faithfulness of the equipment or the reproduction of the underlying scene, the photograph must be authenticated. The person who took the photograph must prove it. Formerly, when photographs were developed, confirmation was required that the negatives were not interfered with.
Issues of procedural fairness arise in relation to identification in a criminal case from photos. The judge is generally obliged to warn the jury of the dangers of identifying the accused in photographs in this manner. There is a risk that a person may mistakenly identify a person from a photograph, particularly one furnished by the Police and become convinced that he is the perpetrator of the crime.
Recordings, both sound and visual, are admitted on the same basis as photographs. As with photographs, the courts will be vigilant it to ensure that no unfair prejudice arises. The recording must be proved to be authentic. It would be necessary to prove the circumstances in which it is made. The fact that the recording took place without the consent of the parties will not generally be enough to exclude it. Special rules apply in criminal cases, including statutory rules in relation to phone tapping and surveillance.
Video recordings must be proved in the same manner as photographs. On occasions, there may be sound or video of the alleged matters being tried. Issues of identification may arise
The basic common law rule is that where a document is offered as evidence, the original should be produced. This is the best evidence rule. It is based on the reliability of the original and the risk of a false copy being produced. Where the original document is not available, proof of its loss may be given. In these circumstances, a copy may be admitted.
The best evidence rule has effectively been repealed in criminal cases. The Criminal Evidence Act provides that where information in a document is admissible as evidence in criminal proceedings, the information may be given in evidence whether or not the document is still in existence by producing a copy or the material part of this authenticated in such a way that the court may approve.
It is immaterial how many removes there are, between the copy and the original and by what means the copy produced or any intermediate copy was made. Information includes any representation of facts, whether in words or otherwise. A “document” includes plans, maps, graphs, drawings, photographs and reproductions in a permanent legible form by a computer of information in non-legible forms. It includes films, recordings and video recordings.
\”Best Evidence\” Rule
The best evidence rule applies in civil proceedings but has been modified over time by exceptions. Where the exceptions apply, the document may be proved by secondary evidence. Secondary evidence may be a copy or a copy or a copy. It may be verbal evidence. There is no hierarchy of secondary evidence. Once secondary evidence is admissible, any secondary evidence will potentially suffice.
Where the original has been lost and cannot be found after thorough searches, secondary evidence may be allowed. This will commonly happen with lost will or deeds. Evidence of searches made will be required. Evidence may be given as to where the document was last held and in whose custody one would reasonably expect to find it. It is necessary to show that the document existed and has been lost.
Where the introduction of the original is not physically or legally possible, a copy or photograph may be sufficient. Where, for example, a notice is fixed to a building, a copy may be received. Secondary evidence is allowed if the original in the custody of a third party who is not obliged to furnish it. This may happen, for example, if the third party is outside the jurisdiction or is in a position to assert privilege. If the third party is legally compellable to produce the document, then this must be done.
Where the document is in the custody of the other party and he fails to produce after service of a Notice to Produce, secondary evidence, it is allowed. Notice to Produce must be served a reasonable time in advance. This will typically be done in a number of weeks before a trial.
A range of documents is deemed proved by certified copies issued under public authority. The Evidence Act 1851 provides that books or documents of a public nature may be admissible in evidence on production from proper custody if production of the original would involve a high degree of public inconvenience. An examined or certified copy is admissible. This provision applies at the absence of specific legislation making a copy or a certified copy admissible.
There are special provisions in relation to other types of public and official documents. State documents, statutory instruments and ministerial orders are admissible under the Documentary Evidence Act 1868 and 1925. The 1851 Act also provides for the admission of the admission of proclamations, treaties and acts of the State and foreign countries as evidence.
Certified copies from the registrar of Births, Deaths and Marriages, the Land Registry and many other public bodies are admissible under their governing statutes.
The Bankers Book Evidence Acts allows copies of entries in bank records verified by certain officers of the banks, as evidence of their content.
Where a document must be proved, a person who can give evidence as to its authenticity should verbally swear or affirm its authenticity. This may involve a comparison of handwriting. Alternatively, there may be some other linkage between the document and the copy produced.
Where there is a dispute regarding handwriting, expert evidence may be given of a comparison between the copy and an undisputed sample. Equally verbal evidence of non-expert witnesses may be produced in relation to handwriting. The proof need not be by a handwriting expert.
At common law, a document more than 30 years old, produced from proper custody, which is complete on its face and, if necessary, stamped is presumed to be invalid. Where documents are required to be stamped, they must be properly stamped in order to be admitted as evidence.