Topic: Judicial notice and presumptions . (law of Evidence) - Essay Example

THE OCCASIONS WHEN A COURT MAY DISPENSE WITH PROOF OF A RELEVANT ISSUE ARE CAPRICIOUS AND OUGHT TO BE CLARIFIED BY STATUTE By Name Institution 17th, January, 2013 Judicial Notice and Presumptions  Introduction When making rulings, the judges are subject to making errors. Judicial notice and presumptions are used to make the process of testimony giving more efficient. Judicial notice is used in reference to instances when there is a need for a party to ascertain a fact, which is often not subject to reasonable dispute.

In most cases, such a fact is a generally known fact or can be determined easily. A presumption results when proof of one fact can be used to prove another or other facts and tend to be non-conclusive and the court can choose to reject the connection between certain presumptions. Examples of presumptions include false and proper presumptions such as rebuttable of law and fact, automatic presumptions. This essay argues that the occasions when a court may dispense with proof of a relevant issue are capricious and ought to be clarified by statute.

There are different levels of proof in a criminal case. Evidential burden of proof is an example of a standard of proof, which requires prosecutor to prove to the court that the defendant has a case to answer. If the claimant has enough evidential burden of proof, the prosecution is then required to prove the case beyond reasonable doubt. Therefore, there is a need for enactments of statutes that clarify when a court may dispense with proof of relevant evidence. Judicial notice allows a court to accept facts without evidence.

In some cases, the facts may be notorious since some facts are not common to all. For example, in the case of Mcquaker versus Goddard, the contentious issue was whether a camel in a zoo run by the defendant, which had bitten the plaintiff while the latter was feeding it, could be considered a wild animal or domestic animal. The evidence given regarding the behavior of camels was contradictory and trial judge resorted to judicial notice and ruled that camel was not a wild animal. However, some people questioned the judicial notice arguing that the evidence regarding the behavior of camels could not be taken as evidence in ordinary sense since it is not a general fact across the world.

Another example when granting of judicial notice was questioned was in Wetherall v Harrison case. The judge accepted the defendant’s plea that he had refused to provide a blood sample as required since he had suffered hysteria. Another circumstance that may make the court’s decision appear capricious is if it is unclear whether a magistrate or judge can use specialist knowledge while making a judgment. In R v Fricker case, a juror had specialized knowledge regarding the case and shared the information with other members of the jury.

The information contributed to the verdict made by the jury and the judge was obliged to discharge the jury since the defendant lacked the chance of challenging the knowledge used, which was equivalent to evidence. Another issue that depicts the need of a statute is if the judge has to make a ruling on whether certain facts are commonly known. Some judges have made rulings using their own knowledge, which is at times not known to the society. This, among others, was the case of Mulin v Hackney Borough Council case, where the magistrate acted on knowledge of party that had been derived from previous cases.

The defendant was not given an opportunity to rebut the evidence. Another such ruling was in the case of Ingram V Percival where the appellant was charged with unlawfully using a net secured in tidal waters for taking salmon. The appellant was convicted based on the argument that people in the locality had knowledge that the waters were tidal. Use of the doctrine of RES IPSA LOQUITOR contributes to capricious rulings whose legitimacy is refutable. This is because it often gives rise to rebuttable presumptions.

A presumption, which is the act of considering something as truthful although it is not known, can lead to erroneous ruling. In Mahadervan v Mahadervan case, the presumption that a marriage is valid if there is evidence that it was celebrated through a ceremony could not apply since the marriage was foreign. The case led to the question of whether courts should attach the same weight to presumptions in all foreign marriages brought into question. Another example was in Phiney rule, where the section 26 of Family Reform Act 1969 was used in rebutting the legitimacy of presumptions used in the ruling.

Courts make use of presumptions such as of death, as in Chard v. Chard where the ceremony between petitioner and respondent, which had occurred in 1917, was nullified in 1933 following more than seven years of unexplained absence. In all the above cases, presence of a statute would help since it would guide the judges on the approach to take. The only role that the parliament would play would be enacting such a law and substantiating the approaches to be taken in different circumstances. Conclusively use of evidence based on presumptions can lead to erroneous rulings.

Therefore, there is a need for a statute to avoid or at least minimize instances of capricious rulings.