The Gazette 1982

GAZETTE

APRIL 1982

The Application of the 'Peculiar Knowledge 5 Principle in Irish Criminal Law

by

Paul A. O'Connor B.C.L., LL.M. (N.U.I.)» LL.M. (Penn), Barrister-at-Law, Lecturer in Law, University College, Dublin.

shifted in exceptional cases. The burden of proof as used in its second sense does, however, shift. This result is achieved when a party relies upon a presumption or adduces evidence which is strong enough to establish a prima facie case. There is a lack of conceptual clarity in many of the decided cases owing to the failure to distinguish between the two senses of the expression burden of proof. This lack of clarity is a source of confusion as judges very often do not indicate the kind of burden they are referring to i.e. whether the burden of proof involved is the legal burden as opposed merely to the evidential burden. This is not to deny that it is often obvious which burden a judge is referring to in the course of his judgment. To avoid any confusion in this discussion on peculiar knowledge the two meanings which are embraced by the expression burden of proof will be referred to as the legal burden and the evidential burden. The Peculiar Knowledge Principle and Statutes which shift the Burdens of Proof. The peculiar knowledge principle must be distinguished from statutes which place the onus of proof on the accused. 10 A most important statute affecting the legal burden of proof, in cases of summary jurisdiction, is the County Officers and Courts (Ireland) Act, 1877. Section 78 states: "In all cases of summary jurisdiction any exception, exemption, proviso, qualification or excuse, whether it does or does not accompany the description of the offence complained of, may be proved by the defendant, but need not be specified or negatived in the information or complaint, and if so specified or negatived no proof in relation thereto shall be required from the complainant unless evidence shall be given by the defendant concerning the same." In addition there are provisions in statutes which affect the evidential burden. 11 53

The 'peculiar knowledge' principle being examined in this article is the so-called principle which shifts or might in certain circumstances shift the burden of proof from the prosecution to the defence, where the existence or non-existence of legal authority (e.g. driving licence) for the alleged act or omission complained of rests peculiarly within the knowledge of the defendant. Woolmington and the Burden of Proof In Woolmington v. Director of Public Prosecutions 1 the House of Lords insisted that it is the task of the prosecution to prove the guilt of an accused beyond all reasonable doubt. There is no onus on an accused to establish his innocence. Once he raises a doubt as to his guilt then the jury are obliged to acquit. 2 This fundamental rule which places the burden of proof on the prosecution has been accepted and applied in this jurisdiction. 3 How- ever, in Woolmington a number of exceptions to the rule were recognised. In the case of insanity the onus is placed on the accused to establish this defence. The burden of proof may also be cast on the accused by statute. Before proceeding to a consideration of the peculiar knowledge principle in this jurisdiction it is desirable to indicate the various meanings which are encompassed by the expression burden of proof. The expression refers to two distinct meanings which have been variously described by different authorities. The first meaning has been referred to as the risk of non-persuasion, 4 the legal burden, 5 and the fixed burden. 6 The second meaning has been described as the duty of producing evidence, 7 the provisional burden 8 and the evidential burden. 9 When the expression burden of proof is used in the context of the first of its meanings it denotes that burden which rests on the prosecution throughout the trial and which can only be satisfied by proof beyond all reasonable doubt. This burden remains fixed and, as has been seen, is only