The Gazette 1982

g a z e t t e

a p r i l 1982

The peculiar knowledge principle was applied in

McGowan

in the following way. If a defendant had been

stopped and asked to produce his driving licence by a

Garda but failed to do so at the time he was stopped or

within a reasonable period of that time then, given the

knowledge possessed by the parties, the burden of proof

would shift to the defendant to show that he had a licence.

Since there was no evidence produced by the complainant

as to whether the defendant did in fact subsequently

produce his licence the onus of proof had not shifted and

remained with him.

The case went to the Supreme Court where it was held

by the majority (Lavery, Kingsmill-Moore, O'Daly,

Maguire JJ. with Maguire C. J. dissenting) that the High

Court was correct in its decision. Lavery J. accepted the

interpretation of the peculiar knowledge principle put

forward in the

Steele

case. His lordship emphasised that it

was not for the prosecutor to prove that the person charged

is not the holder of a licence but that it is incumbent upon

him to give such evidence as would be sufficient, if

unrebutted, to justify a finding that the defendant had no

licence.

Maguire C.J.'s opinion differed from the

majority. He insisted, apart altogether from the Road

Traffic Act, 1933, that the onus of proving that there is an

effective licence is cast upon the defendant because such a

matter lies peculiarly within his knowledge. Furthermore,

according to Maguire C.J., in order for the burden of proof

to be cast on the defendant it is not even necessary for the

prosecution to establish a prima facie case.

Support for

these views was found in the English authority

of John v.

Humphreys

This case established that the onus of

proving possession of a licence rests on the defendant. It

was accepted in that case that where it is established that

the defendant was driving a motor vehicle then, without

the prosecution having to adduce any further evidence, the

onus of proof rests on the defendant to prove that he is the

holder of a driving licence. Lavery J. regarded such a

position as extraordinary.

Among the most notable features of the

McGowan

case

was the marked reluctance shown, particularly in the High

Court, to any extension of the categories of exception to

the

Woolmington

rule. It would seem that it is only in the

situation where the administration of justice would be

frustrated that exceptions to the rule are permissible.

Apart altogether from the issue of peculiar knowledge

Mumaghan J. lamented what he regarded as a "growing

tendency on the part of the executive to promote

legislation putting the onus of proving the having of lawful

authority, in the shape of a licence, certificate or

otherwise, on the person charged."

Davitt P put forward as one of the reasons for refusing to

give any but the most restricted meaning to the peculiar

knowledge principle that it would otherwise constitute a

dangerous weapon in the wrong hands. He observed that

"if dangerous weapons are left available they are apt to fall

into the wrong liands."

Davitt P. seems to have con-

templated — as an example of an unrestricted peculiar

knowledge principle constituting a dangerous weapon in

the wrong hands — a situation where a policeman, without

stopping and asking a motorist to produce his licence,

would, nonetheless, proceed to prosecute the motorist

thus obliging him to prove in court that he had a valid

driving licence. The fact that a policeman would be

unlikely to prosecute unless he first stopped and asked a

driver to produce his licence was not, for Davitt P., the

relevant consideration. Rather, it was the fact that such a

result was possible which constituted the decisive

consideration.

It has already been suggested that the

McGowan

case

supports the view, albeit in a highly qualified way, that the

peculiar knowledge principle can operate so as to shift not

only the evidential burden but the legal burden as well.

One will not find in that case any rejection of the view that

the peculiar knowledge principle is incapable of

occasioning a shift in the legal burden. This of course

raises the question of whether it is desirable to permit

peculiar knowledge to affect the legal burden of proof by

relieving the prosecution from the normal obligation of

proving its case beyond all reasonable doubt. This issue

will be considered at greater length below.

Cases Decided after McGowan

The Attorney General (Comer)

Shorten

the

defendant was charged with having made a declaration

stating that his car had not been used by him, or with his

consent, knowing it to be false or misleading in order to

obtain a driving licence. The declaration of non-user

pertained to a certain period of time. The prosecution were

able to establish that the car was actually driven during

this particular period but they were unable to identify the

driver. By way of response to the charge the defendant

offered no explanation other than that he believed the

declaration to be true. In the District Court the judge

refused to dismiss the case at the request of the defendant's

solicitor. He did, however, state a case to the High Court

asking whether he was correct in holding that once the

prosecution had established that the defendant's car was

used during the material time the onus had shifted to the

defendant to prove that the car in question was not used by

him or with his knowledge and consent. Unlike the

McGowan

case there was no statutory provision involved.

Hence the case fell to be decided by the principles of the

common law.

The prosecution relied on two main arguments. Firstly,

it was contended that since the defendant had reasonable

means of knowing when, how and by whom the car was

used actual knowledge should be imputed to him as to who

used the car at the relevant time. This argument was

disposed of by Davitt P. on the basis that where knowledge

is an essential ingredient in a criminal offence actual

knowledge must be proved. Secondly, the peculiar

knowledge principle as explicated in

McGowan

was relied

upon. The onus of proof had, it was asserted, shifted to the

defendant because it was he who knew whether he had

driven the car and whether any permission had been given

to drive the car.

Davitt P. took the opportunity to voice his concern over

the application of the peculiar knowledge principle to

criminal cases. His remarks in this regard are the strongest

to date of any Irish judge. He made the following trenchant

observations.

"I confess that I do not feel at all happy about the

application in criminal cases in what I have referred to

in the

McGowan v. Carville

as the "peculiar

knowledge" principle, even in the modified form in

which it is enunciated in Stephen's Digest; or indeed