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GAZETTE
APRIL 1982
The Application of the
'Peculiar Knowledge
5
Principle
in Irish Criminal Law
by
Paul A. O'Connor B.C.L., LL.M. (N.U.I.)» LL.M. (Penn),
Barrister-at-Law, Lecturer in Law, University College, Dublin.
The 'peculiar knowledge' principle being examined
in this article is the so-called principle which shifts or
might in certain circumstances shift the burden of proof
from the prosecution to the defence, where the
existence or non-existence of legal authority (e.g.
driving licence) for the alleged act or omission
complained of rests peculiarly within the knowledge of
the defendant.
Woolmington and the Burden of Proof
In
Woolmington v. Director of Public Prosecutions
1
the House of Lords insisted that it is the task of the
prosecution to prove the guilt of an accused beyond all
reasonable doubt. There is no onus on an accused to
establish his innocence. Once he raises a doubt as to his
guilt then the jury are obliged to acquit.
2
This fundamental
rule which places the burden of proof on the prosecution
has been accepted and applied in this jurisdiction.
3
How-
ever, in
Woolmington
a number of exceptions to the rule
were recognised. In the case of insanity the onus is placed
on the accused to establish this defence. The burden of
proof may also be cast on the accused by statute.
Before proceeding to a consideration of the peculiar
knowledge principle in this jurisdiction it is desirable to
indicate the various meanings which are encompassed by
the expression burden of proof. The expression refers to
two distinct meanings which have been variously
described by different authorities. The first meaning has
been referred to as the risk of non-persuasion,
4
the legal
burden,
5
and the fixed burden.
6
The second meaning has
been described as the duty of producing evidence,
7
the
provisional burden
8
and the evidential burden.
9
When the
expression burden of proof is used in the context of
the first of its meanings it denotes that burden which
rests on the prosecution throughout the trial and which can
only be satisfied by proof beyond all reasonable doubt.
This burden remains fixed and, as has been seen, is only
shifted in exceptional cases. The burden of proof as used in
its second sense does, however, shift. This result is
achieved when a party relies upon a presumption or
adduces evidence which is strong enough to establish a
prima facie case.
There is a lack of conceptual clarity in many of the
decided cases owing to the failure to distinguish between
the two senses of the expression burden of proof. This lack
of clarity is a source of confusion as judges very often do
not indicate the kind of burden they are referring to i.e.
whether the burden of proof involved is the legal burden as
opposed merely to the evidential burden. This is not to
deny that it is often obvious which burden a judge is
referring to in the course of his judgment. To avoid any
confusion in this discussion on peculiar knowledge the two
meanings which are embraced by the expression burden of
proof will be referred to as the legal burden and the
evidential burden.
The Peculiar Knowledge Principle and Statutes which
shift the Burdens of Proof.
The peculiar knowledge principle must be distinguished
from statutes which place the onus of proof on the
accused.
10
A most important statute affecting the legal
burden of proof, in cases of summary jurisdiction, is the
County Officers and Courts (Ireland) Act, 1877. Section
78 states:
"In all cases of summary jurisdiction any exception,
exemption, proviso, qualification or excuse, whether it
does or does not accompany the description of the
offence complained of, may be proved by the
defendant, but need not be specified or negatived in the
information or complaint, and if so specified or
negatived no proof in relation thereto shall be required
from the complainant unless evidence shall be given by
the defendant concerning the same."
In addition there are provisions in statutes which affect
the evidential burden.
11
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