Loosely but conveniently lawyers speak of a court making a finding of facts.
This terminology, although justified by common usage, covers up an important
truth, namely that there is an inherent uncertainty with facts. This has two
aspects.
First, no one can know for certain the truth of an event that they have not
personally observed. This applies to courts which generally do not have any
“first-hand knowledge of the events or situations about which they have to
decide what happened”
560
because the court hearing a case did not itself
witness the events that make up the case. Thus (apart from the special case of
judicial observation) the court has no knowledge of the true facts beyond the
evidence given by the parties.
Second, even if a witness has observed an event they may still not know the
full or accurate truth about the event (for example, they did not observe it
carefully). Or, even if they know the truth, totally or partially, they may not give
accurate, honest or unbiased testimony. Consequently a court does not
necessarily possess the truth when it ‘finds’ the facts having heard the
evidence. It finds a version of the facts that it believes is most likely to be the
truth.
The fundamental point then is that in making a finding of fact there is no
guarantee that a court, indeed any human, can reach a correct decision.
Consequently, a person such as a judge or juror, viewing all of the evidence
cannot know what is true and what is not true. The truth has probably been
diminished by not being fully presented and by the telling of things that are not
the truth. While a judge or juror or other decision maker knows that it is likely
that the truth has been diminished, they do not know this for sure, they do now
know which part of the evidence is not true, nor do they know which parts of
the truth have and have not been told. For this
reason no human system can
furnish an absolute guarantee of truth.
From a practical point of view, facts are conclusively (but not necessarily
correctly) established for the purposes of a case only when a court makes a
finding of fact in its judgment. For many reasons until this happens there is
great uncertainty with facts – for example, the inadequacy and frailty of human
observation and memory, the many possibilities that can happen in
presentation of evidence and the wide discretion which a court has to believe
or disbelieve evidence. Hence a litigation lawyer cannot operate with any
certain expectation that any fact will be “found” by the court from the
evidence.
560
Twining (1984) p 66
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