The Gazette 1982

g a z e t t e

a p r i l 1982

the non-existence of such lawful authority. In such cases where sufficient evidence of the fact of non- existence has in the opinion of the judge or justice been given as the nature of the particular case would reasonably require the onus of proving the contrary is then said to shift to the person charged. In considering the amount of evidence necessary to shift the burden of proof in such a case the judge or justice would have regard to the opportunities of knowledge with respect to the fact to be proved which might be possessed by the parties respectively." 29 The interpretation of the peculiar knowledge principle taken by the High Court in McGowan would seem to support the view that the principle does, in a very res- tricted sense, constitute an exception to the obligation which is normally placed on the prosecution to prove every element in the offence beyond all reasonable doubt. Mr. Justice Davitt cautioned against any general and indiscriminate application of the principle particularly in criminal cases. He agreed with the views expressed in the Steele case on the peculiar knowledge principle. The limitations imposed on the principle as a means of shifting the burden of proof, both legal and evidential, may be further illustrated by the remarks of Murnaghan J. According to the learned judge it would not be sufficient simply to allege that requisite legal authority was non- existent in order to have the onus of proof shifted to the person charged of proving that he did have such authority. This view stands in opposition to the views expressed by Maguire J. in The Attorney General v. Diiff". 30 Murnaghan J, in adverting to this difference of opinion, was content to indicate that the decision inZJi^was based on Section 78 of the 1877 Act and that it was inconsistent with the later Supreme Court decision in Steele. Thus it would appear that in order for peculiar knowledge to bring about a shift in the legal burden of proof the prosecution would, at the very least, have to establish a prima facie case. 31 Solicitors 9 Benevolent Association invite you to a Soiree on Friday, 28 May 1982 at The Law Society, Blackhall Place, Dublin 7. 7-9 p.m. Wine & Savouries. Subscription: £10. Tickets from Thelma King (688399), Noelle Maguire (752319), Clare Leonard (785051), Elma Lynch (715222) Clare Connellan (686130), Helen HefTernan (711777 ex 79) Julie O'Connor (774245), Aine Lynch (698090)

defendant to show what proportion of the meat content was pork. This was because the prosecution had established a prima facie case and because the pork content of the meat was a matter which was peculiarly within the knowledge of the defendant. In light of the decision in the Steele case one can ask which of the burdens of proof — the legal or the evidential — was shifted. It is submitted that it was the legal burden which was cast on the defendant. This is because it fell to the defendant to show that the sausages were other than the variety described in the Emergency Powers Order. However it should be noted that the prosecution did not simply rely on the peculiar knowledge principle. They established a prima facie case in response to which the defendant did not adduce any evidence whatsoever as to the percentage of pork in the sausages. There was a total failure on the part of the defendant to come forward with any rebutting evidence. In these circumstances one wonders whether the result would have been any different even if the prosecution had to meet the legal burden. On the basis of the evidence adduced by the prosecution such legal burden would have been satisfied. Given the failure of the defendant to come forward with any rebutting evidence can it be reasonably doubted that the sausages were other than pork sausages? The Steele case was considered in McGowan v. Carville 26 which is the leading authority in Irish law on the peculiar knowledge principle. The facts of this case are as follows. The complainant, a member of the police force, stopped the defendant and asked him to produce his driving licence. The defendant refused to do so but said he would produce it, at a later date, in a Garda station. He was subsequently charged with driving without a licence in contravention of Section 22 of the Road Traffic Act, 1933. No evidence was given in the District Court as to whether the defendant did in fact produce his driving licence. The charge was dismissed on the ground that the onus was on the complainant to prove that the defendant had no driving licence. A case was stated for the opinion of the High Court in which the District Justice specified, as one of the reasons for reaching the conclusion which he did, that the holding of a driving licence was not a matter peculiarly within the knowledge of the defendant. In the High Court both Davitt P. and Murnaghan J. stressed that in criminal cases it is the prosecution's task to prove the elements in the offence charged. Mr. Justice Murnaghan insisted that there is no onus on the accused to prove his innocence. 27 However, it was conceded that there are exceptions to this principle. Davitt P. observed that if the principle were invariably adhered to it would in certain cases be impossible to administer justice. He stressed though that exceptions should be as few as possible. 28 Mr. Justice Mumaghan stated that "the Courts should steadfastly refuse to allow any unnecessary exception to the principle.. ." His lordship went on to indicate the approach which the court would take to the peculiar knowledge principle. He wrote: "The law in this regard, I think, tries to adopt a realistic and reasonable attitude. It recognises in cases where the non-existence of lawful authority is alleged and the existence or otherwise of such lawful authority is in issue, that it may not always be possible, because of the nature of things, for the prosecution to prove affirmatively and beyond reasonable doubt the fact of

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