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PROSECUTOR v SAM HINGA NORMAN & ORS - JUSTICE ROBERTSON'S SEPARATE OPINION - FOFANA JUDICIAL NOTICE - Case No. SCSL-04-14-AR74 [2005] SCSL 71 (16 May 2005)

SEPARATE OPINION OF JUSTICE ROBERTSON

1. The procedural background to this appeal is set out in the initial paragraphs of the judgements of the Court and of Ayoola J. It concerns the application of the test for judicial notice to statements in documents and in the UN resolutions, and invites comment upon both the procedures adopted below for the taking of judicial notice and upon the consequences of such notice, once taken. Since this chamber is differing from the Trial Chamber in a number of respects, I set out my own reasons for so doing.
2. The Trial Chamber, in granting leave, noted the high threshold set for interlocutory appeals by the conjunctive test of “exceptional circumstances” and “irreparable prejudice” laid down by Rule 73(B). In relation to Mr Fofana, the second accused, one circumstance that it found exceptional was its own “opinion that it may not have given proper consideration to the oral response of the second accused” to the Prosecution Motion which defence counsel had made at a status conference.[1] Its misgivings in this respect are well founded: oral statements made by properly instructed counsel are entitled to the same force as those made in written submissions, although if they constitute admissions it is obviously advisable, to avoid misunderstandings, that they should subsequently be reduced to writing. But where an oversight of this kind occurs, it is always open to a Trial Chamber, in the exercise of its inherent power to avoid injustice, to reconsider its decision, rather than to regard the oversight as an “exceptional circumstance” justifying an appeal. An error recognised as such by the Trial Chamber itself should be corrected in the course of the trial, rather than put right by the expensive and time-consuming process of appeal to this Chamber. However, this appeal chamber has had the benefit of full submissions from the defence, and there cannot now be any question of a miscarriage of justce.

III. APPLICABLE LAW

3. Unusually, the law involved in this Appeal, namely the interpretation of the judicial notice provision in Rule 94(A), has not been the subject of any disagreement between the parties: they all accept the analysis of the case law on judicial notice provided by the Trial Chamber in its Decision[2], to the effect that the criteria for taking judicial notice of a relevant fact is that it is not open to reasonable dispute. The Trial Chamber in this respect followed the ICTR Semanza decision.[3] This appeal has turned upon the Trial Chamber’s application of this test, which resulted in judicially noticing, under Rule 94(A), a number of factual propositions and an array of UN resolutions and reports and other quasi-official documents. For reasons which I shall explain, judicial notice in respect of these reports, rather than any facts extrapolated from them, was misconceived. Further, certain of the Prosecution’s factual propositions should not have been judicially noticed, either because they were propositions of law or because they were not beyond reasonable dispute.
4. It is necessary to explain the distinction between judicial notice and alternative modes of receiving evidence and argument, notably:
   1. Rule 92bis, which permits the admission of relevant and reliable information;
   2. The practice of acting upon admissions made by the parties for the purpose of the proceedings;
   3. Propositions of law.
5. Judicial notice is an important means of receiving evidence, especially in international courts[4], but it must be carefully distinguished from these other procedures, because facts that are judicially noticed are thenceforth taken for granted and cannot be the subject of further evidence or dispute in the trial. This appeal concerns judicial notice of “facts of common knowledge” under Rule 94(A): it does not relate to the special form of judicial notice permitted by Rule 94(B), namely of facts adjudicated, or documents accepted, in other proceedings in the Special Court.
6. Provision for judicial notice is found in the law of evidence applied in most national courts. International criminal courts invariably adopt a formulation that originated in Article 21 of the Charter of the International Military Tribunal at Nuremberg. In our rules, Rule 94(A) provides:

“A chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof.”

This mirrors the first sentence of Article 21, which went on additionally to permit the reception, by way of exception to what was then regarded in Anglo-American jurisprudence as a rigid rule against hearsay, of a range of official documents and records:

“The tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of official government documents and reports of the United Nations, including the Acts and documents of the committees set up in various allied countries for the investigation of war crimes, and of records and findings of military or other tribunals of the United Nations.”

The second sentence of Article 21 has not been reproduced in the Special Court Rules. It is unnecessary, because our proceedings are not constrained by the hearsay rule: recurrent and reliable factual statements in documents are admissible under Rule 92bis. It is illuminating, nonetheless, to note the recognition (at a time when the rule against hearsay was rigid in national courts) that prosecution of war crimes would require a much broader evidential canvas and that the introduction of relevant background information should not be constrained by artificial rules developed in context of trial by jury.

7. Decided cases make clear that facts “judicially noticed” – that is, accepted by the court as true facts incapable of contradiction in the proceedings – are facts which may not be known to all or even a majority of the public but are facts that are simply beyond any reasonable dispute.[5] They will include, of course, “notorious” facts that all reasonable people accept without enquiry in their daily lives, so that evidence would simply be a waste of time.[6] More often, they will be facts which have been propounded in official records or reports or authoritative documents or books of history or geography or science and which cannot be seriously disputed. The theoretical basis of the procedure by which courts take judicial notice of facts in this latter category has been the subject of some academic controversy in common law countries: should they treat authoritative sources as pieces of documentary evidence received by way of exception to the hearsay rule, or do they look at such sources simply in order to equip themselves to take judicial notice? Since this court is not shackled by the rule against hearsay, the latter description is to be preferred. The party which puts on the motion seeking judicial notice of a particular fact must direct the court’s attention to the range of authoritative sources which taken together demonstrate that the fact is indisputable.
8. Judicial notice involves the acceptance by the court of a factual proposition, the indisputability of which is usually deduced from the multiplicity of reliable sources in which the proposition is asserted, and from the absence of any source which provides a contrary indication. These sources, however authoritative, do not themselves have to be “judicially noticed”. A party which asks the court to take judicial notice of a fact will normally append to its motion copies of the written records or sources upon which it relies. The court, after considering any argument or material submitted by the opposite party, will take judicial notice if it decides that the fact is true, in the sense that it is not reasonably capable of dispute. That fact will thereafter be deemed incontrovertible in the proceedings. The only exception – and it will rarely if ever arise – is if fresh information subsequently comes into the hands of a party or to the notice of the court suggesting that the fact is questionable after all. Were such a situation ever to arise, the chamber should exercise its inherent power to reconsider its original decision.
9. It follows that facts judicially noticed are for all intents and purposes invincible: no evidence in rebuttal is admissible. If it were, the doctrine would serve little purpose. It has sometimes been suggested that judicial notice merely shifts the burden of proof or creates a “well found presumption” of truth, but logically this cannot be the case, certainly with facts noticed judicially under Rule 94(A).[7] Facts judicially noticed must be given their full evidential weight and may be used by any party as a basis for submissions or inferences or arguments.

IV. JUDICIAL NOTICE DISTINGUISHED FROM:

a. Propositions of Law

10. Judicial notice is confined, however, to facts, which become part of the evidence in the case. It does not include propositions of law. This distinction is sometimes difficult to draw: certain facts appropriate for judicial notice, such as the ratification of a treaty, will have legal consequences. In this case, the Trial Chamber fell into error by treating a proposition of law (that the Geneva Conventions bound the factions fighting in Sierra Leone) as a fact of which it could take judicial notice. Such propositions, however irrefutable, are not facts in evidence: they are legal principles available for the court to apply to the facts in evidence in order to produce conclusions necessary for the determination of guilt or innocence. As an ICTR Trial Chamber said in the Butare decision: “facts involving interpretation of legal characterisations of facts are not capable of admission under Rule 94.”[8] A Trial Chamber may of course draw legal conclusions from judicially noticed facts, but such conclusions will be capable of contest through the appeal process.
    2. Admissions
11. Facts judicially noticed must be distinguished from facts that are admitted by the parties for the purpose of the proceedings. Both categories of fact are binding on the court and available as facts deemed true for the determination of the case. But in separate proceedings, facts which have been judicially noticed will be treated as “adjudicated” for the purposes of Rule 94(B), whereas those that have simply been agreed by the parties will lack this quality. For present purposes, I simply note that it will often be possible for a party to agree a fact which is likely to be true and which they have no evidence or information to controvert, but which lack that high degree of likelihood that puts them beyond reasonable dispute. Every counsel for every party appearing in this Special Court has a duty to assist it: this obligation entails a duty to make admissions, if requested and at an early stage, of facts that they have no reason to dispute later in the trial. This is an ethical duty binding professionally on all counsel who appear in this court: it is reflected in the Code of Conduct recently adopted,[9] but exists from the moment that Counsel accepts instructions. This duty particularly applies to the Prosecution, which should readily concede facts which it apprehends the defence could only prove with expense and difficulty. The presumption of innocence, as this Chamber pointed out in its decision in Fofana[10], means no more but no less than that the prosecution must prove beyond reasonable doubt the elements of the offence: it does not relieve defence counsel of their duty to make admissions, if requested, of matters which cannot or will not be disputed.
    100. “Information” admissible alternatively under Rule 92bis
12. Judicial notice under Rule 94 must be distinguished from the court’s reception of information under Rule 92bis – the Rule which the prosecution relies upon as an alternative mode of presentation. The court has a general power under Rule 89(C) to admit any relevant evidence and Rule 92bis provides:

Alternative Proof Of Facts

1. A Chamber may admit as evidence, in whole or in part, information in lieu of oral testimony;
2. The information submitted may be received in evidence if, in the view of the Trial Chamber, it is relevant to the purpose for which it is submitted and if its reliability is susceptible of confirmation.

13. Our Rule 92bis is different to the equivalent Rule in the ICTY and ICTR and deliberately so. The judges of this Court, at one of their first plenary meetings, recognised a need to amend ICTR Rule 92bis in order to simplify this provision for a court operating in what was hoped would be a short time-span in the country where the crimes had been committed and where a Truth and Reconciliation Commission and other authoritative bodies were generating testimony and other information about the recently concluded hostilities.[11] The effect of our Rule is to permit the reception of “information” - assertions of fact (but not opinion) made in documents or electronic communications - if such facts are relevant and their reliability is “susceptible of confirmation”. This phraseology was chosen to make clear that proof of reliability is not a condition of admission: all that is required is that the information should be capable of corroboration in due course. It is for the trial chamber to decide whether the information comes in a form, or is of a kind, that is “susceptible to confirmation”: propaganda claims or political attacks in partisan newspapers might be excluded, for example, but information set out in UN or NGO or Truth Commission reports, or in books by serious historians, should be admitted. So might certain newspaper reports, if they carry a reporter’s by-line and purport to be based on eye-witness reports or interviews or have other indicia of reliability. It follows, of course, from the fact that their reliability is “susceptible of confirmation” that it is also susceptible of being disproved, or so seriously called into question that the court will place no reliance upon it.
14. Rule 92bis permits facts that are not beyond dispute to be presented to the court in a written or visual form that will require evaluation in due course. A party which fails in an application to have a fact judicially noticed under 94A will nonetheless be able to introduce into evidence under Rule 92bis many of the sources upon which it has relied at the end of the trial the court may well conclude that the fact has been proved beyond reasonable doubt. The weight and reliability of such “information” admitted via Rule 92bis will have to be assessed in light of all the evidence in the case. This is a familiar judicial exercise and experienced Trial Chamber judges know how they should conduct it, alert as always to the dangers of malice and media “demonisation” of defendants and the risks of fabrication or exaggeration in reports from unidentified sources. Such risks might be reduced if the court has oral evidence from the reporter or compiler/ editor of the report or details about the care with which it has been compiled. There cannot, however, be automatic acceptance of unsourced factual statements, even if promulgated by a respected organisation. In this context I note, in order to reject, the suggestion (based on a passage in Semanza) that a court established by the UN is bound to take judicial notice of factual averments made in the resolutions of that body.[12] Such assertions, even when emanating from the Security Council, do not enter this forum with an indelible imprimatur of truth. They will, of course, normally be regarded as reliable and readily susceptible of confirmation: indeed, in the absence of information to the contrary a Trial Chamber may well decide to take judicial notice of a factual assertion made in a Security Council resolution. However, if there is any real reason to doubt the assertion, it will have to be introduced into evidence via Rule 92bis and not noticed as an incontrovertible fact of common knowledge under Rule 94(A).

V. THE PURPOSE OF JUDICIAL NOTICE

15. The purpose of judicial notice in the law of evidence is often said to be expedition, from which it has been assumed that the court, in deciding whether to apply Rule 94(A), must reach what is described as “the balance between judicial economy and the right of the accused to a fair trial”.[13] In my view, expedition and judicial economy do not accurately reflect the real purpose of this Rule and the “balance” sets up a false dichotomy between the assumed purpose of economy and the rights of the defendant. Expedition and economy may be the result of judicial notice, but the purpose of the Rule is rather to promote a fair trial for all parties both by relieving them of the burden of proving facts that have been convincingly established elsewhere and by enabling the tribunal to take into account in its decision the full panoply of relevant facts currently available in the world. Judicial notice equips courts to make just decisions and enables them to avoid the rebuke and ridicule that would be heaped upon them were they to turn a blind eye to history or science or to embark upon fatuous and unnecessary enquiries. Judicial notice is not, most emphatically, a prosecution tool that must be “balanced” or “weighed” against countervailing rights to a fair trial: it is a procedure that can and should also be used by defendants to simplify a task which might otherwise be beyond their resources.[14] They benefit, as much as the Prosecution and the Court, from any expedition that results. Facts that can be judicially noticed must be judicially noticed – Rule 94(A) is mandatory.
16. The doctrine of judicial notice does not and cannot relieve the Prosecution of proving the elements of the offence. The defendant, by pleading “not guilty”, puts in issue his mens rea or guilty mind which cannot in consequence be the subject of judicial notice. He also puts in issue the actus reus, i.e. that description of offending conduct to which the court must be satisfied that his actions amount. Judicial notice may be taken of facts which are relevant to characterise his actions, but those actions themselves must be proved by evidence. In practice, any fact which is within the knowledge of the defendant, but which he denies, cannot be made the subject of judicial notice: his denial must be accepted by the court as indicative that the alleged fact is reasonably disputable if only because the defendant himself disputes it and intends to do so on oath or affirmation or to call witnesses to dispute it.

VI. THE MERITS

17. The facts and matters which the Trial Chamber decided judicially to notice in this case are helpfully annexed to its Decision. Annex 1 relates to certain statements of fact, which I comment upon in turn, adopting the alphabetical numbering used in the Court below:

1. The armed conflict in Sierra Leone occurred from March 1991 until January 2002.
   18. That a prolonged armed conflict took place in Sierra Leone is a truly “notorious” matter of historical record and indeed is obvious to anyone living in or visiting this country, and to all the judges of this court.[15] It is incapable of reasonable (or any) dispute and should not have been disputed by the defence. They did not question the dates, but evinced concern that a finding of “armed conflict” might be a legal characterisation. It is not: it is a straightforward description of a state of affairs that existed in this country over the relevant time. Judicially noticed facts may well have legal consequences, but that does not prevent them from being judicially noticed.
2. The city of Freetown, the Western area and the following districts are located in the country of Sierra Leone: Kenema, Bow, Bonthe, Moyamba.
   19. These are straightforward geographical facts that cannot sensibly be disputed. They were not disputed and the Trial Chamber was bound to take judicial notice of them.
4. The accused and all members of the organised armed factions engaged in fighting within Sierra Leone were required to comply with International Humanitarian Law and the laws and customs governing the conduct of armed conflicts, including the Geneva Conventions of 12th August 1949 and additional protocol II to the Geneva Conventions.
   20. Judicial notice of this “fact” was impermissible, for two reasons. First, it assumes that the accused were engaged in fighting – a matter that they dispute and which the prosecution must therefore prove. Secondly, shorn of any reference to the accused, what remains is plainly a proposition of law rather than a statement of fact. It appears to be a correct proposition – certainly the defence indicated that it would not be disputed (although some commentators have questioned the extent to which Additional Protocol II has become part of international humanitarian law). Legal propositions must only be presented through legal argument: if accepted, they will be applied to the facts that are found by the court.
5. Sierra Leone acceded to the Geneva Conventions of 12th August 1949 and additional protocol II to the Geneva Conventions on 21st October 1986.
   21. This is an indisputable official fact which can readily be verified by reference to authoritative sources. Although it carries legal consequences, it nonetheless remains a relevant fact of which judicial notice must be taken.
8. Groups commonly referred to as the RUF, AFRC and CDF were involved in armed conflict in Sierra Leone.
   22. Whether or not the defence was prepared to agree, there can be no reasonable dispute, a) that armed conflict occurred in Sierra Leone, b) that groups were involved in that conflict, and c) every reliable source refers to groups identified as the RUF, the AFRC and the CDF. Judicial notice of this fact was appropriately taken.
11. The accused, Samuel Hinga Norman, was the national coordinator of the CDF.

50. The accused Moinina Fofana was the national director of war of the CDF.

13. The accused Allieu Kondewa was the high priest of the CDF.
    23. The Prosecution showed the Court some material (reports from NGOs, and in Norman’s case from the UN Secretary -General)[16] which described the defendants as occupying these positions. Through their counsel, they denied the correctness of the identification. The positions were not public offices which are filled through a process which can be officially verified, for example, by an electoral declaration or a gazettal, and it follows from the defendants’ denials that these facts cannot be made the subject of judicial notice. In the absence of any agreement as to the defendants’ true positions in the CDF, if any, the prosecution will be entitled to introduce its source information under Rule 92bis.
21. In or about November and/ or December 1997, the CDF, including Kamajors, launched an operation called “Black December”.
    24. This is a fact capable of being judicially noticed, irrespective of defence objection, but I doubt whether the five sources relied upon by the Prosecution really put it beyond reasonable dispute.[17] Moreover, I fail to see where this so-called “fact” gets the prosecution, unless it includes (as it did in the original prosecution request) some description of the operation. A military action described as “Operation No Living Thing” may speak for itself, but “Black December” is equivocal in the absence of explanatory detail. For these reasons, the Trial Chamber erred in making it the subject of judicial notice.
23. The Junta was forced from power on or about 14th February 1998. President Kabbah’s government returned in March 1998.
    25. The prosecution relies not merely upon UN and NGO Reports, but upon a CDF statement and a Kamajor Press Release. If the Trial Chamber is satisfied that these are authentic, then the preconditions for 94(A) would appear to be satisfied. These matters were properly made the subject of judicial notice, although the phrase “forced from power” lacks clarity.

ANNEX II: 13 reports of the UN Secretary General on the situation in Sierra Leone and two UNICEF reports accusing the AFRC and the CDF of recruiting child soldiers. These reports are judicially noticed “as to their Existence and Authenticity”.

26. These lengthy documents contain many factual assertions. Those which relate to the UN and its peacekeepers obviously carry a high degree of reliability, but other statements “reporting” aspects of the conflict may be based on unreliable – certainly unattributable – sources. The UNICEF accusations come in a form that is not ipso facto reliable but is nonetheless information “susceptible to confirmation”. However, none of these reports was admitted under 92bis: all were judicially noticed “as to their existence and authenticity” but not as to their contents or any factual assertion made in their pages.
27. This, with due respect, appears to be an exercise without obvious point. Of course these reports exist and are authentic, but that gets the prosecution nowhere unless they wish to put the reports in evidence, e.g. to explore the defendant’s reaction to them at the time they were published – and for that purpose, they can use Rule 92bis. The only basis for judicially noticing them is that a particular fact stated in them, and identified clearly, has been established beyond peradventure. There are various facts which would seem at first blush to be so reliably stated in these documents as to be beyond dispute and no doubt those facts could be supported from other sources. If there is no basis for disputing them, then the facts themselves, set out clearly as a proposition, should be judicially noticed. But this is a precise exercise which cannot possibly be accomplished by purporting to notice an entire report for its authenticity alone. It is up to the prosecution to extrapolate the particular fact or facts which it claims are beyond dispute, and to marshal corroborative material. It should not deluge the court with reports many pages in length which state hundreds of facts, and ask merely for judicial notice to be taken of the report’s “existence”.

UN SECURITY COUNCIL RESOLUTIONS. Nine were judicially noticed “as to their Existence, Authenticity and Contents”

28. Even Security Council resolutions do not come with an iron-clad guarantee of the truth of the facts stated in them. They come, however, with a high degree of credibility, and in the absence of any information to the contrary the court might well be justified in judicially noticing such facts. However, it is unacceptable for the court simply to adopt an entire resolution, invariably a mixture of posited facts, propositions of law, and opinions of the Secretary General or the powers that be in the Security Council. It is necessary for the prosecution to extrapolate from these wide-ranging resolutions such specific facts as it wishes the court to notice under 94(A), and present it to the court together with corroboratory material. It will be for the Trial Chamber then to decide whether the particular fact stated in the resolution is incontrovertible.
    

Maps, Peace Agreements, Treaties

29. These are all properly admissible in the absence of any dispute. The UNAMSIL map is an authoritative document, and the various ceasefire agreements and peace accords are matters of record and indeed of history. The ICRC list of states that are party to the Geneva Conventions and their additional protocols is authoritative. There was no need to take judicial notice of the Geneva Conventions themselves, which have become part of international law.

General Comment

30. The Prosecution’s initial motion for judicial notice and admission of evidence was filed on 1 April 2004. Insofar as it seeks the notice of factual statements A through to Y, it properly sets out the multiple sources for each statement. However, when it comes to appendix II material it simply requests “an authenticity finding and admission of the following documents” and lists no less than 69 documents ranging from political speeches by Johnny Paul Koroma and President Kabbah to lengthy reports by Amnesty International, Human Rights Watch and No Peace Without Justice, together with press releases, UN humanitarian situation reports, Secretary-General reports and Security Council resolutions. This mass of undigested paperwork should not be imposed upon the Trial Chamber and the defence in such an undisciplined fashion. It is apt to swamp the proceedings in detail, much of it irrelevant, and to increase costs massively as counsel will be entitled to charge for reading all this material, much of it extraneous. The court’s task of finding relevant facts is not assisted by approaching a judicial notice motion in this fashion. This is the problem with permitting judicial notice of lengthy documents per se – a practice that some other international courts appear to have allowed.[18] It must not become a practice in this court. Any party, whether prosecution or defence, that seeks to introduce a lengthy document must indicate in the margin the passages they claim to be relevant and indeed, if judicial notice under Rule 94(A) is sought, they must identify and set out as a proposition the fact which they want judicially noticed and direct the court’s attention to the assertion of that fact in any document that they present in pursuance of their application.
31. The judges of this court have taken a conscious decision to produce rules that avoid wherever possible lengthy legal argument over admissibility. All relevant material is admissible, but that is not an invitation to parties to deluge the court with thousands of pages of NGO and UN reports. The wider admissibility provisions in the SCSL carry a concomitant duty on the parties to narrow the documentary material they seek to introduce and to identify only those passages which are of direct relevance to the case, however interesting or insightful other aspects of the report may be.
    

CONCLUSION

32. The Trial Chamber erred in taking judicial notice of facts D, K, L, M and U. The evidential material submitted by the prosecution in respect of that notice is, however, admissible under Rule 92bis. The contents of Security Council resolutions may in principle be the subject of judicial notice, once such propositions are extrapolated from the Resolution and recognised as incapable of reasonable disputation.
    

Justice Geoffrey Robertson

[1] Decision on Joint Request for Leave to Appeal Against Decision on Prosecution’s Motion for Judicial Notice, 19 October 2004, para 20

[2] Trial Chamber Decision, paras 15-30
[3] Prosecutor v Semanza, Case No. ICTR-97-20-T, Decision on the Prosecutor’s Motion for Judicial Notice and Presumption of Facts Pursuant to Rules 94 and 54, 3 November 2000, para. 4 (“Semanza Decision”).
[4] The ICTY, for example, has notably liberalised its approach towards written evidence. See Steven Kay, “The Move from Oral Evidence to Written Evidence”, Journal of International Criminal Justice 2 (2004) 495. This may in part be in response to the UN working party, which recommended that greater use be made of the doctrine in the ICTR. See:
[5] Semanza decision, ibid, para 23, and cases there cited.
[6] Examples are given in Cross on Evidence, 7th Australian Edition, edited by Heydon, (2004) p144-5.
[7] See for example, Prosecutor v Krajisnik, Case No. IT-00-39&40, Decision on Prosecution’s Motion for Judicial Notice of Adjudicated facts and Admission of Written Statements of Witnesses Pursuant to Rule 92bis, 28 February 2003, para. 15 (“Krajisnik Decision”); Prosecutor v Milosevic, Case No. IT-02-54-AR73.5, Decision on the Prosecution’s Interlocutory Appeal against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 28 October 2003; Semanza Decision. The Krajisnik decision accepts that facts judicially noticed cannot be challenged during the trial, as does the Semanza decision. To the extent that Milosevic suggests otherwise it should not be followed, although it would appear that both Judge Shabbudeen and Judge Hunt, for different reasons, thought that facts noticed under 94(A) were conclusive. As Cross on Evidence, 7th Edition (Heydon ed), p166 and footnote 183) puts it “In spite of occasional remarks suggesting that taking judicial notice is merely the equivalent of prima facie proof of a fact, it appears that rebutting evidence is inadmissible”.
[8] Prosecutor v Nyiramasuhuko et al, ICTR-97-21-T, Decision on the Prosecutor’s Motion for Judicial Notice and Admission of Evidence, Trial Chamber, 15 May 2002 (Butare Decision), para 39.
[9] The obligation to the Court is found in Article 8 of the Code of Conduct.
[10] Prosecutor v Fofana, Case No SCSL-2004-14, Appeal Against Decision Refusing Bail, 11 March 2005, para 37.
[11] The amendment was adopted on 7 March 2003.
[12] Semanza Decision, para 38.

[13] For example, the ICTY Trial Chamber has stated that: “the purpose of judicial notice under Rule 94 is judicial economy, that Rule 94 should be interpreted as covering facts not subject to reasonable dispute, and that a balance should be struck between judicial economy and the right of the accused to a fair trial”: Prosecutor v Simic, Case No. IT-95-9-PT, Decision on Pre-Trial Motion by the Prosecution Requesting the Trial Chamber to take Judicial Notice of the International Character of the Conflict in Bosnia-Herzegovina, 25 March 1999 at para 17; see also Semanza Decision, para 37; see also Prosecutor v Mejakic, Case No IT-02-65-PT, Decision on Prosecution Motion for Judicial Notice Pursuant to Rule 94(B), 1 April 2004.

[14] An example of creative defence use of judicial notice is given by Steven Kay (above, note 4) at p497. Nokes, The Limits of Judicial Notice, p74 (1958) LQR 59 at 66-7 suggests that the judge who “provokes lay ribaldry” by asking “Who are the Beatles?” is merely indicating that the name is not the proper subject of judicial notice. But no legal doctrine should be allowed to bring courts or judges into disrepute: “household” names, e.g. of popstars at the height of their fame, should be judicially noticed as a matter of common knowledge.

[15] Who may use the evidence of their own eyes, and rely upon local knowledge: Mullen v Hackney Borough Council etc
[16] See Prosecution Motion, 1 April 2004, Annex A, p5
[17] Ibid, p9.
[18] ICTY and ICTR precedents on this point should not be followed, if in fact they are true precedents: the cases where reports have been admitted under 94(A) “for existence and authenticity” may reflect the survival in those courts of the rule against hearsay and their lack of SCSL 92bis. The more appropriate appeal approach is that of Simic (above note 13 at para 9): any document admitted under 94(A) must be “a readily accessible source of indispensable accuracy”.