Facts which need not be proved by evidence

Facts which need not be proved by evidence 1) Judicial notice 2) Presumption 3) admissions

Introduction • As a general rule, all facts in issue must be proved any condition precedent must be proved by the person who seeks to adduce such evidence

Introduction However, some matters need not be proved in evidence for three reasons: First, some matters need not be proved because they are well known or they have been already admitted by the parties. Secondly, proving some matters may jeopardize national security especially matters which are considered as classified. Thirdly, proving some matters may be prejudicial to a fair trial in the way likely to mislead the Court and thereby jeopardize justice.

Introduction • The following facts are presumed to be true in the absence of proof and no evidence is required to prove them. 1) Judicial notice 2) Presumptions 3) Admissions

Judicial Notice The expression ‘judicial notice’ means recognition or notice of the truth of the facts taken by a judge which do not require proof by any evidence because the matters noticed are of common notoriety

Judicial Notice Art. 167 The Court shall take judicial notice of the following facts: A) all laws and regulations in force or formerly in force in the Somali Republic or in any part of the territory of the Somali Republic prior to its constitution as a State and also the procedure followed for preparing such laws and regulations;

Judicial Notice Art. 167 The Court shall take judicial notice of the following facts: B) the seals of the State and any other seals which any person is authorized to use by law or may have been authorized to use in the different parts of the State prior to its constitution;

Judicial Notice Art. 167 The Court shall take judicial notice of the following facts: C) the accession to office, names, titles, functions and signature of the persons filling for the time being any public office in the Somali Republic, if the fact of their appointment to such office is notified in the Official Bulletin or any similar publication in use in any part of the territory of the Somali Republic at any time;

Judicial Notice Art. 167 The Court shall take judicial notice of the following facts: D) The existence, title and national flag of every State recognized by the Government of the Somali Re public; E) The divisions of time, official holidays and the terri tory of the State.

Judicial Notice Art. 168 • The Court may, at the request of either party or on its own motion, take judicial notice of any relevant fact, if it is reasonably satisfied that the fact in question is generally known or can be easily ascertained.

Admission Art. 147 An admission is an oral or written statement which suggests any inference as to any fact in issue or relevant fact, and which is made by any person who is the accused in any criminal proceeding. An admission, verbal or written, made by a party in the course of the proceedings in the same case does not require proof The admission may be contradicted only by a showing that it was made through palpable mistake or under duress or that no such admission was made.

Admissions are classified into: 1) Formal Admissions Formal admissions are made in the context of specific proceedings and the effect of formal admissions is that they dispense with proof with regard to the matters admitted. 2) Informal Admissions Informal admissions are those admissions that are made before any proceedings are anticipated.

Admission A fact may be formally admitted in the following ways: a) Express admissions on the pleadings; b) By default pleading; c) By failure to traverse it in a pleading; d) By letter written by legal advisor prior to trial; e) In answer to a notice to admit f) By affidavit in answer to admit to an interrogatory

Admission There is also the concept of admission by conduct. The admission will be inferred from positive acts or from demeanor. For instance, silence after a direct accusation. A party’s admission by conduct as to any material fact may generally be proved against him and evidence to explain or rebut such admission is receivable in his favour.

PRESUMPTIONS Presumptions are legal inferences or assumptions or positions established by law and based on the known proven set of facts. They are conclusions as to the truth of some fact in question which may or must be drawn from other facts until the contrary is proved.

Presumption Art. 170 1) Unless there is evidence to the contrary, the Court shall presume: a) that a document is genuine and properly executed if issued by: i) any organ of the State or any organ existing in the different parts of the territory of the State prior to its constitution; ii) a person exercising public functions in the State or in different parts of the territory of the State prior to its constitution;

Presumption Art. 170 1) Unless there is evidence to the contrary, the Court shall presume: a) that a document is genuine and properly executed if issued by: iii) an organ of a foreign country or a person exer cising public functions therein if authenticated in accordance with the saw of that country;

Presumption Art. 170 b) that every officer by whom any such document pur ports to be issued, signed or certified, held, when he issued, signed or certified it, the official position which he claims in such document.

Presumption Art. 171 The Court may presume, in relation to the particular circum stances of the case, the existence of any fact which it thinks likely. to have happened, when: a) the common course of natural events; b) the common course of human nature and conduct; or c) the common course of public and private business, reasonably lead to such inference.

Categories of presumption There are three broad types of presumptions: 1) Presumptions of facts 2) Rebuttable presumptions of law 3) Irrebuttable presumptions of law

Presumptions of facts These are discretionary inferences that may be drawn upon the establishment of a basic fact. The operative word in these presumptions is ‘may'. A fact may be presumed upon proof of a basic fact and in the absence of sufficient evidence to the contrary. Thus, presumptions of facts can be said to amount to circumstantial evidence. Examples of presumptions of facts include the presumptions of intention, guilty knowledge, continuance of life and seaworthiness of vehicles.

Rebuttable presumption of law • These are inferences that may be drawn in the absence of conclusive evidence to the contrary. To rebut this presumption you need conclusive evidence. They are presumptions that are decreed by law • A good example is the presumption of genuineness in a document purporting to be the Somali Gazette • Innocence and sanity

Irrubattable presumption of law • These are also known as conclusive presumptions. These presumptions must be drawn on proof of a basic fact showing the occurrence or existence of the presumed fact.

Irrubattable presumption of law it is presumed that a child under the age of 8 years is incapable of committing a criminal offence. Therefore, it follows that once the age of the child has been proved to be under the age of 8, then the law requires a conclusive inference to be drawn that the child is incapable of committing an offence. The same section raises an irrebuttable presumption that a boy under the age of 12 is incapable of rape