(3)
Deeming Provisions. Facts can be legally deemed to be true. This can
happen in any of five ways - by agreement, by admission, by presumption, by
judicial notice or by statute.
Observational evidence by a witness is one of the most common forms of
evidence. It refers to an account of facts that a witness gives on the basis that
they have observed those facts with one of the five senses (namely sight,
touch, smell, hearing, and taste). To further explain and also to illustrate this,
consider a typical piece of evidence, where Sally, the witness says: “I saw the
defendant walk on Jeremy’s land”. This reveals the two components of
observational evidence. First, it consists of facts. In the example, the
defendant walked on Jeremy’s land. Second, it consists of a cognitive claim to
truth of these facts. In the example, the witness Sally claims that the defendant
walked on Jeremy’s land because she “saw” it happen. In view of this, it can
be seen that the relationship of fact and observational evidence is that evidence
consists of facts with the addition of a claim based on observation that the
facts are true.
Processes
Introduction
To understand the nature of processes, it is necessary to refer to the model
above. For a person’s legal position to change the law has to apply to them.
For this to happen it is necessary to create Facts 1-n in order to satisfy
Elements 1-n. To create Facts 1-n a person carries out Processes 1-n. When
the facts are established or created in this way the law applies to the facts.
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Therefore, the consequences provided by the law follow, and the person’s
legal position is altered accordingly.
So, in contrast to litigation where parties seek to prove past facts by means of
evidence, in a transaction parties create facts in present time by means of
processes. These processes involve doing whatever is necessary to create
facts to satisfy the elements of the relevant law. To give an example, the rule
for transferring title to land generally provides that a vendor can transfer title to
land when the vendor signs a document of transfer, delivers it to the person
taking title to the land (the purchaser), and puts the document on a register
with a government agency. The elements of this rule require that these facts be
established. Parties establish these facts by creating them. In this instance they
would prepare a document of transfer, the vendor would sign it, the vendor
would deliver it to the purchaser, and the purchaser would register it with the
relevant government agency.
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Applying law to facts is a deductive process based on a syllogism –
see
Christopher Enright Legal Reasoning Chapter 5 Deduction
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