68 / 250
g a z e t t e
a p r i l 1982
Footnotes
1. [19351 A.C. 462; [19351 All E.R.I; 25 Cr. App. Rep. 72.
2. Ibid., p. 482. See also
Mancini
v.
Director of Public Prosecutions
[19421 A.C.I; [19411 3 All E.R. 272.
3.
The People (Attorney-General)
Berber and Levy
[1944] I.R. 405,
411.,
The People (Attorney-General)
v.
Kennedy
(1946] I.R. 517,
521.,
The People (Attorney-General)
v.
Byrne
[ 197-4J I.R. 1,5. In
The People (Attorney-General)
v.
Oglesby
f 1966] I.R. 162 Mr.
Justice Kenny observed that "the so-called doctrine of recent posses-
sion" does not alter the law relating to the onus of proof in criminal
cases as it was stated in Woolmington's Case" (at p. 165). See also
The People (A.G.) v. McMahon
(19461 I.R. 368.
4. Wigmore on
Evidence,
3rd edition, vol. 9, at p. 271.
5. See Julius Stone, Burden of Proof and the Judicial Process: A
Commentary on
Joseph Constantine Steamship, Ltd.
v.
Imperial
Smelting Corporation, Ltd.
60 L.Q.R. 262 (1944) where the
author uses the expression legal burden of proof. Denning,
Presumptions and Burdens
61 L.Q.R. 379
(1945) also employs the
concept of legal burden of proof. See also Denning's judgments in
Emmanuel
v.
Emmanuel
(1945) 61 T.L.R. 5 38, and
Dunn v. Dunn
11948| 2 All E.R. 822.
6. Nigel Bridge, in
12 M.L.R. 273
(1949), opts for the expression
Tixed burden of proof (at. p. 274).
7. See Thaver's,
Preliminary Treatise on Evidence at Common Law,
p. 355.
8. This description was used by Lord Denning in his article in
61
L.Q.R. 379.
9. See Bridge, supra, n.6 at p. 277.
10. A good example of this is to be found in section 24(1) of the
Firearms Act, 1964. This subsection provides: "where, in a
prosecution for an offence under the Principal Act, the existence or
non-existence of a firearms certificate, a licence under section 2 of
the Principal Act, a permit under section 3 of this Act or an
authorisation under section 13 of this Act is material, it shall not be
necessary to prove that the certificate, licence, authorisation or
permit does not exist." Subsection 2 of the same section states:
"where, in a prosecution for an offence under the Principal Act,
possession, use or carriage of a firearm or ammunition by a person is
proved, it shall not be necessary to prove that the person was not
entitled to have in his possession, use or carry a firearm or
ammunition." Included among those statutes which cast the legal
burden of proof on the defendant are: Intoxication Liquor
(Licensing) Act, 1872, (Section 51(4))., Customs Laws
Consolidation Act, 1876, (Section 259)., Prevention of Crime Act,
1871, (Section 17). Gaming and Lotteries Act 1956, (Sections 42
and 43)., Wildlife Act, 1976, (Sections 23 (9) and 71)., Misuse of
Drugs Act, 1977, (section 22).
11. For example, section 3(2) of the Offences Against the State (Amd.)
Act, 1972.
12. 11907] 2 I.R. 5.
13. Ibid., p. 11. Zuckerman, specifically referred to this test of Mr.
Justice Gibson's and similar tests propounded by other judges. He
argued that it is not possible to distinguish between the definition of
an offence and exceptions to it. Where such-a distinction is made it is
one of form. In making a distinction between the definition of an
offence and an exception to it judges are, according to Zuckerman,
imposing, for policy reasons, a particular construction on a statute.
See Adrian Zuckerman, The Third Exception to the Woolmington
Rule,
92 L.Q.R. 402,
at pp. 413-418.
14.
Larkin
v.
Be fast Harbour Commissioners
[19081 2 I.R. 214. Per
Wright J. at p. 229.
15. [19411 I.R. 406.
16. Ibid., p. 413. In
The People (Attorney-General)
v.
Shribman and
Samuels
[1946] I.R. 431 Maguire P. observed: "It is well settled
that where an offence consists of doing something which persons are
not permitted to do unless duly qualified and under special
circumstances the onus of disproving the qualification does not rest
on the prosecution." at pp. 442-3. The court accepted the test laid
down by Gibson J. in
Sheahan.
17. |19001 2 I.R. 273.
18. Ibid., p.280. Palles C.B. based this statement of the law on Taylor.
The latter stated "that where the subject-matter of the allegation lies
peculiarly within the knowledge of one of the parties, that party must
prove it, whether it be of an affirmative or a negative character, and
even though there be a presumption in his favour." See Taylor on
Evidence
9th edition, 1895 at p.266. However in a subsequent
edition of Taylor its editors put forward the view that the exception
could not be relied upon to its full extent. The principle, they
thought, could be more accurately stated as follows: "That where
the facts lie peculiarly within the knowledge of one of the parties
very
slight evidence
may be sufficient to discharge the burden resting on
the opposite partv." (Tavloron
Evidence,
11 th edition at p.285.). In
Elkin v. Janson
(1845) 13 M. & W. 655, Alderson B. thought that
the exception was too strongly stated and that the rule referred only
to the weight of the evidence. See also
Abrath
v.
North Eastern
Railway Co.
(1883) 1 Q.B.D. 440 at p. 457. Mr Justice Barton
observed
mPowell\.McGlynnandBradlaw\
190212 I.R. 154thatit
was a mistake to hold that it is a rule of
nisiprius
that the possession of
peculiar knowledge by a party shifts the onus of proof to him (at p.
169). In an earlier case
Curran
v.
Midland and Great Western
Railway
[ 1896] 2 I.R. 183 counsel argued that the onus of proving
intentional and wilful misconduct lay on the company's servants
because the subject matter of the allegation lay peculiarly within the
knowledge of the company. Palles C. B., who gave judgment in the
case, did not refer to the peculiar knowledge principle.
19. (1816) 5 M. & S. 206.
20. Ibid., p. 211. Cross, in referring to this dictum, stated that it does not
amount to a general rule. It is he says "a rule of statutory
interpretation confined to cases in which the affirmative of negative
averments is peculiarly within the knowledge of the accused" (Cross
on
Evidence,
fifth edition at p. 102.).
21. See, for example,
R
v.
Oliver
(1944] K.B. 68,
John
v.
Humphreys
(1955] 1 W.L.R. 325.,/? v.fwenil 1967] 1Q.B.322(C.C.A.). Both
Humphreys
and
Oliver
were referred to in
McGowan
v.
Carville
[1960] I.R. 330.
22. Supra, n. 15.
23. (1952] I.R. 304.
24. (1923] 2 K.B. 793; [ 1923] All E.R. 191. Judgment of the court was
read by Sankey J.
25. Ibid., p. 795.
26. |1960] I.R. 330.
27. Ibid., p.345.
28. Ibid., p.336.
29. Ibid., p.346.
30. Supra, n.15.
31. In
Buchanan
v.
Moore
|1963( N.I. 194 Lord McDermott L.C.J,
left open the question, in cases involving peculiar knowledge, of
whether the burden of proof rests on the defendant
ab initio
or
whether it shifts to him upon the prosecution establishing a prima
facie case (at p. 196).
32.
McGowan
v.
Carville,
supra, at p.356.
33. Ibid., pp.351-2.
34. |1955) 1 W.L.R. 325. See also
R\.Oliver[
1944] K.B. 68. Glan-
ville Williams was critical of the finding in
Oliver.
In that case
the appellant was convicted on indictment with supplying sugar
without a licence contrary to a specific regulation. The prosecution
gave no evidence that the appellant did not possess a licence. It was
held that the onus of proof rested on the defendant and, further, that
the prosecution were under no obligation to establish a prima facie
case that the licence did not exist, (per Viscount Caldecote C.J. at
p.75). Williams suggested that the situation prior to
Oliver
was one
where the presence of peculiar knowledge did not shift the burden of
proof (i.e. the legal burden). See Williams,
Criminal La
w,
The
General Part,
second edition, at pp. 902-3.
35.
McGowan
v.
Carville,
supra, p. 346.
36. Ibid., p.344.
37. (1961] I.R. 304.
38. Ibid., pp. 309-10.
39.
R
v.
Crowhurst
1 C.
St
K. 370.,
R
v.
Smith 2C.&.K.
201., R
v.
Schama and Abramovitch
11 Cr. App. R. 45.,
The People (Attor-
ney-General)
v.
Berber and Levey
(1944) I.R. 405.
40. See
The People(A ttorney-General)\.
Oglesby
11966] I.R. 162 at p
167.
41
. The Attorney-General (Comer) v. Shorten;
supra, at p.311.
42. (1961] I.R. 313.
43. (1907] 2 I.R. 5.
44.
Bridgett
v.
Dowd
11961 ] I.R. 313 at pp. 321-2
45. (1975] Q.B. 27., 11974] 2 All E.R. 1085., (1974] 3 W.L.R. 285.
46.
R
v.
Turner
5 M. & S. 206.
,R
v.
Scott
86 J. P. 69.,
R
v.
Oliver[
1944]
K.B. 68.,
Nimmo v. Alexander Cowen and Sons Ltd.
(1968] A.C.
107.,
R
v.
Rutland and Sorrell
[ 1946] 1 All E.R.
%S.,John
v.
Humphreys
|1955| 1 W.L.R. 325.,
McGowan
v.
Carville
| 1960]
I.R. 330 and
Buchanan
v.
Moore
(1963] N.I. 194.
47.
R
v.
Edwards
(1975 ] Q.B. 27, at pp. 39-40.
59