Welcome to the Evidence Act 2008

This blog was started back when the Evidence Act 2008 was nothing more than a gleam in Parliament's eye. It was an attempt to further understanding of some challenging new legislation when information about it was difficult to find.

Since then, many authors and luminaries have turned their minds to the complex issues the Act obliges Victorian lawyers to engage with. A blog devoted exclusively to this one piece of legislation isn't necessary, and is impossible for us to give the attention it deserves.

If you're looking for a more conventional blog posting on topical legal issues, have a look at Quis Custodiet Ipsos Custodes? by the same authors.

This site is no substitute for legal advice from an Australian lawyer. If you have a legal problem, it's great that you are doing a bit of research, but go consult a professional.


144. Matters of common knowledge

144. Matters of common knowledge

(1) 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.

(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.

(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.

(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

Note that, due to the abolition of the common knowledge rule of expert evidence at s 80, experts may be the source of common knowledge evidence.

In DPP v Gramelis [2010] NSWSC 787 the operation of a car's gears were held to be a subject that could not readily be described as common knowledge. Failure of the magistrate to advert to their intention to take judicial notice led to procedural unfairness.

Price J [at 51]:

51 The requirements of s 144(4) are directed at ensuring that the parties are accorded procedural fairness where matters of common knowledge are to be acquired or taken into account. A judicial officer is obliged to give a party such opportunity to make submissions and to refer to relevant information as is necessary to ensure that the party is not unfairly prejudiced. Her Honour was required to raise with the prosecutor her intention to take judicial notice. Should she have done so, the prosecutor might have submitted that it would be inappropriate to take “judicial notice” of the speed of “average cars” travelling in second gear on the question of whether the defendant’s Isuzu truck was able to reach a speed in excess of 40 km/h on The Northern Road Luddenham under the prevailing conditions. The prosecutor might also have sought an adjournment to enable consideration to be given to calling expert evidence.

Perram J in Wentworth District Capital Ltd v Commissioner of Taxation [2010] FCA 862 held [at 2] that 'a map of New South Wales' would be included in the category of documents whose accuracy could not reasonably be questioned.

In Wing Cheong Li v R [2010] NSWCCA 40 the New South Wales Court of Criminal Appeal took judical notice of 'Target', a puzzle game published in a daily Sydney newspaper.

In R v Nguyen (Ruling No 1) [2010] VSC 438 Lasry J permitted the evidence of a Police Medical Officer about the effects of amphetamine, over objections from defence that, 'a jury did not need the assistance of an expert to inform them about something they would know from common sense: that a person who has taken a drug and has not slept may not be as alert as he would be had the two factors not been present'.


Related Articles

Related Article Widget by Hoctro

  © Blogger templates The Professional Template by Ourblogtemplates.com 2008

Back to TOP