The Gazette 1982

g a z e t t e

a p r i l 1982

unlikely to prosecute unless he first stopped and asked a driver to produce his licence was not, for Davitt P., the relevant consideration. Rather, it was the fact that such a result was possible which constituted the decisive consideration. It has already been suggested that the McGowan case supports the view, albeit in a highly qualified way, that the peculiar knowledge principle can operate so as to shift not only the evidential burden but the legal burden as well. One will not find in that case any rejection of the view that the peculiar knowledge principle is incapable of occasioning a shift in the legal burden. This of course raises the question of whether it is desirable to permit peculiar knowledge to affect the legal burden of proof by relieving the prosecution from the normal obligation of proving its case beyond all reasonable doubt. This issue will be considered at greater length below. Cases Decided after McGowan In The Attorney General (Comer) v. Shorten 37 the defendant was charged with having made a declaration stating that his car had not been used by him, or with his consent, knowing it to be false or misleading in order to obtain a driving licence. The declaration of non-user pertained to a certain period of time. The prosecution were able to establish that the car was actually driven during this particular period but they were unable to identify the driver. By way of response to the charge the defendant offered no explanation other than that he believed the declaration to be true. In the District Court the judge refused to dismiss the case at the request of the defendant's solicitor. He did, however, state a case to the High Court asking whether he was correct in holding that once the prosecution had established that the defendant's car was used during the material time the onus had shifted to the defendant to prove that the car in question was not used by him or with his knowledge and consent. Unlike the McGowan case there was no statutory provision involved. Hence the case fell to be decided by the principles of the common law. The prosecution relied on two main arguments. Firstly, it was contended that since the defendant had reasonable means of knowing when, how and by whom the car was used actual knowledge should be imputed to him as to who used the car at the relevant time. This argument was disposed of by Davitt P. on the basis that where knowledge is an essential ingredient in a criminal offence actual knowledge must be proved. Secondly, the peculiar knowledge principle as explicated in McGowan was relied upon. The onus of proof had, it was asserted, shifted to the defendant because it was he who knew whether he had driven the car and whether any permission had been given to drive the car. Davitt P. took the opportunity to voice his concern over the application of the peculiar knowledge principle to criminal cases. His remarks in this regard are the strongest to date of any Irish judge. He made the following trenchant observations. "I confess that I do not feel at all happy about the application in criminal cases in what I have referred to in the McGowan v. Carville as the "peculiar knowledge" principle, even in the modified form in which it is enunciated in Stephen's Digest; or indeed

The peculiar knowledge principle was applied in McGowan in the following way. If a defendant had been stopped and asked to produce his driving licence by a Garda but failed to do so at the time he was stopped or within a reasonable period of that time then, given the knowledge possessed by the parties, the burden of proof would shift to the defendant to show that he had a licence. Since there was no evidence produced by the complainant as to whether the defendant did in fact subsequently produce his licence the onus of proof had not shifted and remained with him. The case went to the Supreme Court where it was held by the majority (Lavery, Kingsmill-Moore, O'Daly, Maguire JJ. with Maguire C. J. dissenting) that the High Court was correct in its decision. Lavery J. accepted the interpretation of the peculiar knowledge principle put forward in the Steele case. His lordship emphasised that it was not for the prosecutor to prove that the person charged is not the holder of a licence but that it is incumbent upon him to give such evidence as would be sufficient, if unrebutted, to justify a finding that the defendant had no licence. 32 Maguire C.J.'s opinion differed from the majority. He insisted, apart altogether from the Road Traffic Act, 1933, that the onus of proving that there is an effective licence is cast upon the defendant because such a matter lies peculiarly within his knowledge. Furthermore, according to Maguire C.J., in order for the burden of proof to be cast on the defendant it is not even necessary for the prosecution to establish a prima facie case. 33 Support for these views was found in the English authority of John v. Humphreys . 34 This case established that the onus of proving possession of a licence rests on the defendant. It was accepted in that case that where it is established that the defendant was driving a motor vehicle then, without the prosecution having to adduce any further evidence, the onus of proof rests on the defendant to prove that he is the holder of a driving licence. Lavery J. regarded such a position as extraordinary. Among the most notable features of the McGowan case was the marked reluctance shown, particularly in the High Court, to any extension of the categories of exception to the Woolmington rule. It would seem that it is only in the situation where the administration of justice would be frustrated that exceptions to the rule are permissible. Apart altogether from the issue of peculiar knowledge Mumaghan J. lamented what he regarded as a "growing tendency on the part of the executive to promote legislation putting the onus of proving the having of lawful authority, in the shape of a licence, certificate or otherwise, on the person charged." 35 Davitt P put forward as one of the reasons for refusing to give any but the most restricted meaning to the peculiar knowledge principle that it would otherwise constitute a dangerous weapon in the wrong hands. He observed that "if dangerous weapons are left available they are apt to fall into the wrong liands." 36 Davitt P. seems to have con- templated — as an example of an unrestricted peculiar knowledge principle constituting a dangerous weapon in the wrong hands — a situation where a policeman, without stopping and asking a motorist to produce his licence, would, nonetheless, proceed to prosecute the motorist thus obliging him to prove in court that he had a valid driving licence. The fact that a policeman would be

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