The Gazette 1982

g a z e t t e

a p r i l 1982

a negative averment be made by any one party which is peculiarly within the knowledge of the other, the party within whose knowledge it lies, and who asserts the affirmative is to prove it, and not he who avers the negative." 20 Despite some judicial disagreement as to the meaning and scope of the principle it has been relied upon in English cases so as to shift the legal burden of proof on to the accused. 21 In the Attorney General v. Duff, 22 a criminal case, the issue was whether the accused had a licence which permitted the export of certain goods. Although this issue was disposed of on the basis of the application of Section 78 of the County Officers and Courts (Ireland) Act, 1877, Maguire J. was nonetheless prepared, in the absence of this statutory provision, to hold that the onus of proving the existence of a licence lay on the defendant because it was a matter peculiarly within his knowledge. The willing- ness of Maguire J. to accept that the burden of proof had shifted in this manner seemed to promise much scope for the future application of the peculiar knowledge principle. However, subsequent cases have demonstrated a marked reluctance on the part of the judiciary to permit the principle to subvert the fundamental obligation of the prosecution to prove its case beyond all reasonable doubt. This issue of matter lying peculiarly within the knowledge of an accused arose for consideration in the Supreme Court decision of The Minister for Industry and Commerce v. Steele. 1 * The case concerned an Emer- gency Powers Order which sought to control the quality and price of pork sausages. The Order also provided that the pork sausages when offered for sale bear a ticket indicating the description of sausage. An inspector purchased a quantity of pork sausages from the defendant. The defendant was subsequently prosecuted for selling the pork sausages at a price in excess of the legal price and for not having a ticket indicating the description of sausage. The crucial issue was whether the sausages in question were pork sausages which sausages were defined as containing not less than 65% of pork in the meat content. The prosecution were unable to show what proportion of the meat content consisted of pork as it was not possible to determine this question by scientific analysis. Because of this it was argued that the onus of proof rested on the defendant to show that the sausages were not of such a type as defined in the Emergency Powers Order. Defence counsel, on the other hand, argued that the onus of proof rested with the prosecution to prove the percentage of pork in the sausages. Mr. Justice Murnaghan (Maguire C. J. concurring) applied the reasoning of Salter J. in R v. Kakelo 24 which was that the burden of proof in cases can shift and that in considering the amount of evidence necessary to shift the burden of proof the court has regard to the opportunities of knowledge possessed by the respective parties with respect to the fact to be proved. 25 Mumaghan J. con- cluded that since the prosecution had established a prima facie case against the defendant, which he in no way attempted to rebut, the onus of proof had shifted to him to demonstrate that the sausages were not of such a kind as came within the Emergency Powers Order. O'Byrne J was also of opinion that the burden of proof rested with the

The effect of this provision was considered in The King (Sheehan) v. Justices of Cork. 12 Here the accused had been convicted of the illegal use of a gaff. The issue which the Court had to consider was whether the conviction was bad because the prosecution had not negatived those exceptions under the particular statute which made the use of a gaff legal. The difficulty which confronted the Court lay in determining when the prosecution are relieved from the task of negativing an exception. This raised the question, specifically addressed by Gibson J., of how one determines whether a clause in a statute is an exception or part of the offence described. The learned judge formulated the following test: "The test, or dividing line appears to be this:- Does the statute make the act described an offence subject to particular exceptions, qualifications etc., which, where applicable, make the prima facie offence an innocent act? Or does the statute make an act ,prima facie innocent, an offence when done under certain conditions? In the former case the exception need not be negatived; in the latter words of exception may constitute the gist of the offence." 13 It would thus appear, in light of this test, that where the exception does not form part of the offence that the legal burden is shifted to the accused. It is he who must demonstrate the applicability of a particular exception. Where the exception may be said to constitute the essence of the offence then it is incumbent upon the prosecution to establish its case beyond a reasonable doubt. In a subsequent case it was observed that the onus does not lie on the complainant to prove a negative 14 . Section 78 of the County Officers and Courts (Ireland) Act was applied in The Attorney General v. Diff. 15 The court held that there was no onus on the prosecution to prove the non-existence or non delivery of a licence which permitted goods, other- wise prohibited, to be exported. 16 The Peculiar Knowledge Principle In Mahony v. W. L. and W. Railway Company 17 Chief Baron Palles took the opportunity to apply the peculiar knowledge principle. The plaintiff in the case had sued the defendant company in respect of damage done to his goods. There was however a condition in the contract, entered into by the plaintiff and the company, to the effect that the company would only be liable for damage occasioned through the wilful misconduct of its servants. What the court had to consider was whether the onus of proof lay upon the company to prove that the damage to the goods had not occurred on their railway line. In holding that the onus of proof did lie on the company Palles C.B. observed: " . . . although it is the general rule of law that it lies upon the plaintiff to prove affirmatively all the facts entitling him to relief, there is a well known exception to such rule in reference to matters which are peculiarly within the knowledge of the defendant. In such cases the onus is shifted." 18 Though Mahony was a civil case there was no suggestion that the peculiar knowledge principle was confined solely to civil cases. The peculiar knowledge principle seems to owe its origin to a dictum of Bayly J. in R v. Turner. 19 The dictum is stated thus: "I have always understood it to be a general rule, that if

54