The Gazette 1982

g a z e t t e

a p r i l 1982

The effect of this provision was considered in

The King

(Sheehan)

Justices of Cork.

Here the accused had

been convicted of the illegal use of a gaff. The issue which

the Court had to consider was whether the conviction was

bad because the prosecution had not negatived those

exceptions under the particular statute which made the use

of a gaff legal. The difficulty which confronted the Court

lay in determining when the prosecution are relieved from

the task of negativing an exception. This raised the

question, specifically addressed by Gibson J., of how one

determines whether a clause in a statute is an exception or

part of the offence described. The learned judge

formulated the following test:

"The test, or dividing line appears to be this:-

Does the statute make the act described an offence

subject to particular exceptions, qualifications etc.,

which, where applicable, make the

prima facie

offence

an innocent act? Or does the statute make an act

,prima

facie

innocent, an offence when done under certain

conditions? In the former case the exception need not

be negatived; in the latter words of exception may

constitute the gist of the offence."

It would thus appear, in light of this test, that where the

exception does not form part of the offence that the legal

burden is shifted to the accused. It is he who must

demonstrate the applicability of a particular exception.

Where the exception may be said to constitute the essence

of the offence then it is incumbent upon the prosecution to

establish its case beyond a reasonable doubt. In a

subsequent case it was observed that the onus does not lie

on the complainant to prove a negative

. Section 78 of the

County Officers and Courts (Ireland) Act was applied in

The Attorney General v. Diff.

The court held that there

was no onus on the prosecution to prove the non-existence

or non delivery of a licence which permitted goods, other-

wise prohibited, to be exported.

The Peculiar Knowledge Principle

Mahony v. W. L. and W. Railway Company

Chief Baron Palles took the opportunity to apply the

peculiar knowledge principle. The plaintiff in the case had

sued the defendant company in respect of damage done to

his goods. There was however a condition in the contract,

entered into by the plaintiff and the company, to the effect

that the company would only be liable for damage

occasioned through the wilful misconduct of its servants.

What the court had to consider was whether the onus of

proof lay upon the company to prove that the damage to

the goods had not occurred on their railway line. In holding

that the onus of proof did lie on the company Palles C.B.

observed:

" . . . although it is the general rule of law that it lies upon

the plaintiff to prove affirmatively all the facts entitling

him to relief, there is a well known exception to such

rule in reference to matters which are peculiarly within

the knowledge of the defendant. In such cases the onus

is shifted."

Though

Mahony

was a civil case there was no

suggestion that the peculiar knowledge principle was

confined solely to civil cases. The peculiar knowledge

principle seems to owe its origin to a dictum of Bayly J. in

Turner.

The dictum is stated thus:

"I have always understood it to be a general rule, that if

a negative averment be made by any one party which is

peculiarly within the knowledge of the other, the party

within whose knowledge it lies, and who asserts the

affirmative is to prove it, and not he who avers the

negative."

Despite some judicial disagreement as to the meaning

and scope of the principle it has been relied upon in

English cases so as to shift the legal burden of proof on to

the accused.

In the

Attorney General

Duff,

a criminal case,

the issue was whether the accused had a licence which

permitted the export of certain goods. Although this issue

was disposed of on the basis of the application of Section

78 of the County Officers and Courts (Ireland) Act, 1877,

Maguire J. was nonetheless prepared, in the absence of

this statutory provision, to hold that the onus of proving

the existence of a licence lay on the defendant because it

was a matter peculiarly within his knowledge. The willing-

ness of Maguire J. to accept that the burden of proof had

shifted in this manner seemed to promise much scope for

the future application of the peculiar knowledge principle.

However, subsequent cases have demonstrated a marked

reluctance on the part of the judiciary to permit the

principle to subvert the fundamental obligation of the

prosecution to prove its case beyond all reasonable doubt.

This issue of matter lying peculiarly within the

knowledge of an accused arose for consideration in the

Supreme Court decision of

The Minister for Industry and

Commerce

Steele.

The case concerned an Emer-

gency Powers Order which sought to control the

quality and price of pork sausages. The Order also

provided that the pork sausages when offered for sale bear

a ticket indicating the description of sausage. An inspector

purchased a quantity of pork sausages from the defendant.

The defendant was subsequently prosecuted for selling the

pork sausages at a price in excess of the legal price and for

not having a ticket indicating the description of sausage.

The crucial issue was whether the sausages in question

were pork sausages which sausages were defined as

containing not less than 65% of pork in the meat content.

The prosecution were unable to show what proportion of

the meat content consisted of pork as it was not possible to

determine this question by scientific analysis. Because of

this it was argued that the onus of proof rested on the

defendant to show that the sausages were not of such a

type as defined in the Emergency Powers Order. Defence

counsel, on the other hand, argued that the onus of proof

rested with the prosecution to prove the percentage of pork

in the sausages.

Mr. Justice Murnaghan (Maguire C. J. concurring)

applied the reasoning of Salter J. in

Kakelo

which

was that the burden of proof in cases can shift and that in

considering the amount of evidence necessary to shift the

burden of proof the court has regard to the opportunities of

knowledge possessed by the respective parties with

respect to the fact to be proved.

Mumaghan J. con-

cluded that since the prosecution had established a

prima facie case against the defendant, which he in no way

attempted to rebut, the onus of proof had shifted to him to

demonstrate that the sausages were not of such a kind as

came within the Emergency Powers Order. O'Byrne J was

also of opinion that the burden of proof rested with the