The Gazette 1982

g a z e t t e

a p r i l 1982

the common law, was hammered out on the anvil of

pleading. It is limited to offences arising under

enactments which prohibit the doing of an act save in

specified circumstances or by persons of specified

classes or with specified qualifications or with the

licence or permission of specified authorities.

Whenever the prosecution seeks to rely on this

exception, the court must construe the enactment under

which the charge is laid. If the true construction is that

the enactment prohibits the doing of acts subject to

provisoes, exceptions and the like, then the prosecution

can rely on the exception."

This rule constitutes a third exception to the

Woolmington

rule. The others it will be recalled comprise

the following situations: (i) where the defence must

establish insanity and (ii) where statutes expressly impose

the legal burden of proof.

Referring to the statement of Bayly J. in

Turner

Lawton L. J. was of opinion that it did not

establish a general rule to the effect that the mere fact that

matter lies peculiarly within a party's knowledge is

sufficient to cast the onus of proof on that party.

there were such a rule then, in the words of Lawton L.J.:

" . . . anyone charged with doing an unlawful act with a

specified intent would find himself having to prove his

innocence because if there ever was a matter which

could be said to be peculiarly within a person's

knowledge it is the state of his own mind."

With respect to this third exception to the

Woolmington

rule Lawton L.J. stressed that its

application does not depend on whether the defendant has

peculiar knowledge which enables him to prove the

positive of any negative averment.

The holding in the

Edwards

case may be summarised as follows. The

exception described by Lawton L.J. is one which is not

confined to cases where a party possesses peculiar

knowledge but rather is confined to certain enactments

which prohibit the doing of an act in those situations which

his lordship enumerated. Where such rule is applicable it

casts the legal burden of proof on the defendant.

This finding by Lawton L.J. that there is a third

exception to the

Woolmington

rule has not gone

unchallenged. Zuckerman, writing in the Law Quarterly

Review, expressed the view that the rule formulated by

Lawton L. J. is historically dubious.

Referring to the

dictum

of Bayly J. in

R v. Turner

the writer observed that

it did not lay down a general rule which shifted the burden

of proof on to the defendant. Rather, the

dictum

"was used

as a consideration in statutory interpretation and in

weighing evidence."

Apart altogether from historical considerations the rule

Edwards

has/been criticised because it casts the legal

burden of proof on the defendant. In this regard it has been

stated:

"The effect of casting the legal burden upon the

defendant is that a judge must so direct aj u r y , .. . that if

their minds are evenly balanced as to whether or not the

defendant is guilty it is their duty to convict. This seems

a far cry from

Woolmington

D.P.P.

Zuckerman was equally critical of the rule. He pointed

out that the cases in which the burden of persuasion (i.e.

the legal burden) was placed on the defendant were

concerned with minor offences which involved the doing of

an act without a licence or without similar qualifications.

In such situations it is of little consequence whether it is

the defendant or the prosecution who have to satisfy the

legal

burden.of

proof. This is because very little evidence

is required in order to discharge this burden of proof. For

example, it would, according to Zuckerman, be sufficient

for the prosecution to show that the defendant failed to

produce a licence when asked to do so.

This prompted

the writer to state:

"It is, therefore, paradoxical that this type of situation,

which presents so little difficulty from the prosecution's

point of view, should have been seized upon as an

opportunity to make a fundamental departure from the

rule that the burden of proof in criminal cases lies on the

prosecution."

Summary and Conclusion

It emerges from a consideration of the Irish cases which

deal with the peculiar knowledge principle that such

principle is, despite some judicial reluctance, applicable to

criminal cases. The crucial consideration which has to be

taken into account in determining whether the legal burden

of proof is to be shifted pertains to the requirements of the

administration ofjustice. It is submitted that the obligation

imposed on the prosecution to prove its case beyond all

reasonable doubt is so fundamental to our system of

criminal justice that it should only be departed from for the

weightiest of reasons. The requirements of the

administration of justice may indeed furnish a basis upon

which to formulate an exception to the

Woolmington

rule.

However it is difficult to envisage how the possession of

peculiar knowledge by a party can in any context, and no

matter how qualified, justify the placing of the onus of

proof on that party.

Irish case law has to date established that the

possession of peculiar knowledge does not relieve the

prosecution from establishing a prima facie case. It is

submitted that, in addition, such knowledge should not

relieve the prosecution from the task of discharging the

legal burden of proof. There would seem to be an absence

of any compelling reason as to why the situation should be

other than this.

The proper function of the peculiar knowledge principle

is, it is submitted, this. Once it is established that a

defendant does possess such knowledge then, upon the

prosecution establishing a prima facie case, the evidential

burden should shift to the defendant. Failure to discharge

this evidential burden should be sufficient to enable the

prosecution to claim that it has satisfied the legal burden of

proof. The adoption of this view would not militate against

the requirements ofjustice. In addition the

Woolmington

rule would not only be respected but its central importance

in our criminal justice system would be further emphasised

and entrenched. •