The Gazette 1982

g a z e t t e

a p r i l 1982

about the application of any principle as to the onus of

proof other than the presumption of innocence. Some of

the cases in the reports and some statements in text

books long accepted as authoritative can no longer be

so considered since the decision in Woolmington's

Case. . . . I find it very hard to regard resorts to the

"peculiar knowledge principle" even in its modified

form or to any similar principle, as other than attempts

to whittle down the presumption of innocence."

The remarks of Davitt P. clearly demonstrate an

earnest and robust commitment to the principle that it is

the prosecution who must prove an accused's guilt. The

attitude adopted by the learned judge to the peculiar

knowledge principle is one, it is submitted, which seeks to

prevent it from subverting the presumption of innocence.

Given this negative judicial approach to the peculiar

knowledge principle, in the context of criminal cases, a

particular claim that the principle operates to shift the

legal burden of proof would be difficult to sustain. When

the very application of the principle to criminal cases is

subject to such deep-seated judicial criticism a

complainant, who argues that the onus of proof is cast on a

defendant, because of peculiar knowledge, will have a

difficult task in overcoming judicial opposition to such a

proposition. It must be noted though that the judgment of

Davitt P. falls short of stating that peculiar knowledge is

incapable of shifting the legal burden of proof.

Mr. Justice Davitt went on to dispose of the case in light

of the rules which affect the burden of proof in cases

involving the possession of recently stolen goods. His

lordship referred to cases in this area of the law because he

was of opinion that the fact situation in the case before him

was similar to the fact situations of cases pertaining to the

possession of recently stolen goods. One can, however,

question the basis for the analogy drawn by Davitt P. and

ask wherein lay the similarity between the facts of

Shorten

and the facts in cases involving recently stolen goods. In

the latter the prosecution usually establish, (a) that the

goods were found in possession of the defendant, and (b)

that such goods were recently stolen. In

Shorten

it was

established, (a) that the car in question was owned by the

defendant, and, (b) that it was seen being driven during a

particular period. However the identity of the driver was

unknown. Nor was it known whether the car had been used

with the defendant's consent. The only basis for the

comparison would seem to be that, in the absence of any

explanation by a defendant, in these situations, an adverse

inference may be drawn.

In relying on a number of authorities

dealing with

the subject of recently stolen goods Davitt P. was able to

take advantage of the rules governing the burden of proof

in those cases. The most important rule in this regard is

that the onus remains throughout the trial on the

prosecution to prove its case beyond all reasonable doubt.

Thus the legal burden of proof does not shift.

Simply

because an accused does not give evidence to suport his

contention that his possession of the goods was innocent in

no way operates so as to impose the task of discharging the

legal burden of proof. The issue at the end of the day is

whether the jury believe beyond all reasonable doubt that

the possession was not innocent. When a jury reaches this

conclusion it necessarily implies that the facts established

do "not admit of any reasonable construction which is

consistent with the innocence of the accused."

Applying these principles Davitt P. concluded that a

reasonable tribunal could not honestly and truthfully say

that the facts admitted of no other rational construction

than that the defendant knew his declaration to be false at

the time when he made it. Thus by relying on the rules

governing the burden of proof in cases involving the

possession of recently stolen goods Davitt P. was able to

circumvent the peculiar knowledge principle, and thereby,

to insist that the prosecution prove its case beyond all

reasonable doubt.

Before passing on to consider developments in England

some observations may be made with respect to the case of

Bridgett

Dowd.

Here the defendants were charged

with carrying merchandise in the course of a merchandise

and transport business without a merchandise licence

contrary to section 9 of the Road Transport Act, 1933.

The section provided for an exemption to the effect that it

would not be an offence to carry merchandise exclusively

within an exempted area or areas. It was established that

the defendant's lorry carried merchandise and further that

they did not possess a merchandise licence. However at

the time the lorry was observed being driven it was in an

exempted area. The issue in the case was whether the onus

of proof rested on the defendants to show that the lorry had

been driven exclusively within an exempted area. These

facts made the case one which was fit for the application of

section 78 of the County Officers and Courts (Ireland)

Act, 1877. Thus, on the basis ofthe reasoningof Gibson J.

The King (Sheahan) v. Justices of Cork

it was

deemed incumbent on the defendant to demonstrate that

he came within the particular exemption specified in

section 9 of the 1933 Act.

In addition to holding that section 78 of the 1877 Act

was applicable, Davitt P. considered the legal issue in

Bridgett

in light of the decision in

McGowan.

The result of

so doing was as follows. Once the prosecution were able to

establish that the defendant had no merchandise licence,

and that merchandise was in fact transported, then the

onus rested on the defendant to show that the case came

within one of the exceptions.

Developments in England

The leading modem English authority on the peculiar

knowledge principle is

Edwards.

In that case the

Court of Appeal reviewed the appellant's conviction for

selling liquor without a justice's licence contrary to

Section 160 1(a) of the Licensing Act, 1964. The point of

law to be considered was the following: is there an

obligation on the prosecution to call evidence to prove the

the defendant did not hold a justice's licence? The

prosecution had failed during the defendant's trial to come

forward and prove that he did not hold a justice's licence.

Lawton C. J., after reviewing the relevant authorities,

held that they had established an exception to the

requirement that the prosecution must prove its case

beyond all reasonable doubt. His lordship wrote:

"In our judgment this line of authority establishes that

over the centuries the common law, as a result of

experience and the need to ensure that justice is done

both to the community and to defendants, has evolved

an exception to the fundamental rule of our criminal law

that the prosecution must prove every element of the

offence charged. This exception, like so much else in