The Gazette 1982

g a z e t t e

a p r i l 1982

defendant to show what proportion of the meat content

was pork. This was because the prosecution had

established a prima facie case and because the pork

content of the meat was a matter which was peculiarly

within the knowledge of the defendant.

In light of the decision in the

Steele

case one can ask

which of the burdens of proof — the legal or the evidential

— was shifted. It is submitted that it was the legal burden

which was cast on the defendant. This is because it fell to

the defendant to show that the sausages were other than

the variety described in the Emergency Powers Order.

However it should be noted that the prosecution did not

simply rely on the peculiar knowledge principle. They

established a prima facie case in response to which the

defendant did not adduce any evidence whatsoever as to

the percentage of pork in the sausages. There was a total

failure on the part of the defendant to come forward with

any rebutting evidence. In these circumstances one

wonders whether the result would have been any different

even if the prosecution had to meet the legal burden. On

the basis of the evidence adduced by the prosecution such

legal burden would have been satisfied. Given the failure

of the defendant to come forward with any rebutting

evidence can it be reasonably doubted that the sausages

were other than pork sausages?

The Steele case was considered in

McGowan v.

Carville

which is the leading authority in Irish law on

the peculiar knowledge principle. The facts of this case are

as follows. The complainant, a member of the police force,

stopped the defendant and asked him to produce his

driving licence. The defendant refused to do so but said he

would produce it, at a later date, in a Garda station. He

was subsequently charged with driving without a licence in

contravention of Section 22 of the Road Traffic Act,

1933. No evidence was given in the District Court as to

whether the defendant did in fact produce his driving

licence. The charge was dismissed on the ground that the

onus was on the complainant to prove that the defendant

had no driving licence. A case was stated for the opinion of

the High Court in which the District Justice specified, as

one of the reasons for reaching the conclusion which he

did, that the holding of a driving licence was not a matter

peculiarly within the knowledge of the defendant.

In the High Court both Davitt P. and Murnaghan J.

stressed that in criminal cases it is the prosecution's task to

prove the elements in the offence charged. Mr. Justice

Murnaghan insisted that there is no onus on the accused to

prove his innocence.

However, it was conceded that

there are exceptions to this principle. Davitt P. observed

that if the principle were invariably adhered to it would in

certain cases be impossible to administer justice. He

stressed though that exceptions should be as few as

possible.

Mr. Justice Mumaghan stated that "the

Courts should steadfastly refuse to allow any unnecessary

exception to the principle.. ." His lordship went on to

indicate the approach which the court would take to the

peculiar knowledge principle. He wrote:

"The law in this regard, I think, tries to adopt a realistic

and reasonable attitude. It recognises in cases where

the non-existence of lawful authority is alleged and the

existence or otherwise of such lawful authority is in

issue, that it may not always be possible, because of the

nature of things, for the prosecution to prove

affirmatively and beyond reasonable doubt the fact of

the non-existence of such lawful authority. In such

cases where sufficient evidence of the fact of non-

existence has in the opinion of the judge or justice been

given as the nature of the particular case would

reasonably require the onus of proving the contrary is

then said to shift to the person charged. In considering

the amount of evidence necessary to shift the burden of

proof in such a case the judge or justice would have

regard to the opportunities of knowledge with respect to

the fact to be proved which might be possessed by the

parties respectively."

The interpretation of the peculiar knowledge principle

taken by the High Court in

McGowan

would seem to

support the view that the principle does, in a very res-

tricted sense, constitute an exception to the obligation

which is normally placed on the prosecution to prove

every element in the offence beyond all reasonable doubt.

Mr. Justice Davitt cautioned against any general and

indiscriminate application of the principle particularly in

criminal cases. He agreed with the views expressed in the

Steele

case on the peculiar knowledge principle. The

limitations imposed on the principle as a means of shifting

the burden of proof, both legal and evidential, may be

further illustrated by the remarks of Murnaghan J.

According to the learned judge it would not be sufficient

simply to allege that requisite legal authority was non-

existent in order to have the onus of proof shifted to the

person charged of proving that he did have such authority.

This view stands in opposition to the views expressed

by Maguire J. in

The Attorney General

Diiff".

Murnaghan J, in adverting to this difference of opinion,

was content to indicate that the decision inZJi^was based

on Section 78 of the 1877 Act and that it was inconsistent

with the later Supreme Court decision in

Steele.

Thus it

would appear that in order for peculiar knowledge to bring

about a shift in the legal burden of proof the prosecution

would, at the very least, have to establish a prima facie

case.

Solicitors

Benevolent

Association

invite you to a

Soiree

Friday, 28 May 1982 at

The Law Society, Blackhall Place, Dublin 7.

7-9 p.m. Wine & Savouries.

Subscription: £10.

Tickets from Thelma King (688399), Noelle Maguire

(752319), Clare Leonard (785051), Elma Lynch (715222)

Clare Connellan (686130), Helen HefTernan (711777 ex 79)

Julie O'Connor (774245), Aine Lynch (698090)