The Gazette 1982

a p r i l 1982

g a z e t t e

about the application of any principle as to the onus of proof other than the presumption of innocence. Some of the cases in the reports and some statements in text books long accepted as authoritative can no longer be so considered since the decision in Woolmington's Case. . . . I find it very hard to regard resorts to the "peculiar knowledge principle" even in its modified form or to any similar principle, as other than attempts to whittle down the presumption of innocence." 38 The remarks of Davitt P. clearly demonstrate an earnest and robust commitment to the principle that it is the prosecution who must prove an accused's guilt. The attitude adopted by the learned judge to the peculiar knowledge principle is one, it is submitted, which seeks to prevent it from subverting the presumption of innocence. Given this negative judicial approach to the peculiar knowledge principle, in the context of criminal cases, a particular claim that the principle operates to shift the legal burden of proof would be difficult to sustain. When the very application of the principle to criminal cases is subject to such deep-seated judicial criticism a complainant, who argues that the onus of proof is cast on a defendant, because of peculiar knowledge, will have a difficult task in overcoming judicial opposition to such a proposition. It must be noted though that the judgment of Davitt P. falls short of stating that peculiar knowledge is incapable of shifting the legal burden of proof. Mr. Justice Davitt went on to dispose of the case in light of the rules which affect the burden of proof in cases involving the possession of recently stolen goods. His lordship referred to cases in this area of the law because he was of opinion that the fact situation in the case before him was similar to the fact situations of cases pertaining to the possession of recently stolen goods. One can, however, question the basis for the analogy drawn by Davitt P. and ask wherein lay the similarity between the facts of Shorten and the facts in cases involving recently stolen goods. In the latter the prosecution usually establish, (a) that the goods were found in possession of the defendant, and (b) that such goods were recently stolen. In Shorten it was established, (a) that the car in question was owned by the defendant, and, (b) that it was seen being driven during a particular period. However the identity of the driver was unknown. Nor was it known whether the car had been used with the defendant's consent. The only basis for the comparison would seem to be that, in the absence of any explanation by a defendant, in these situations, an adverse inference may be drawn. In relying on a number of authorities 39 dealing with the subject of recently stolen goods Davitt P. was able to take advantage of the rules governing the burden of proof in those cases. The most important rule in this regard is that the onus remains throughout the trial on the prosecution to prove its case beyond all reasonable doubt. Thus the legal burden of proof does not shift. 40 Simply because an accused does not give evidence to suport his contention that his possession of the goods was innocent in no way operates so as to impose the task of discharging the legal burden of proof. The issue at the end of the day is whether the jury believe beyond all reasonable doubt that the possession was not innocent. When a jury reaches this conclusion it necessarily implies that the facts established do "not admit of any reasonable construction which is consistent with the innocence of the accused." 41

Applying these principles Davitt P. concluded that a reasonable tribunal could not honestly and truthfully say that the facts admitted of no other rational construction than that the defendant knew his declaration to be false at the time when he made it. Thus by relying on the rules governing the burden of proof in cases involving the possession of recently stolen goods Davitt P. was able to circumvent the peculiar knowledge principle, and thereby, to insist that the prosecution prove its case beyond all reasonable doubt. Before passing on to consider developments in England some observations may be made with respect to the case of Bridgett v. Dowd. 42 Here the defendants were charged with carrying merchandise in the course of a merchandise and transport business without a merchandise licence contrary to section 9 of the Road Transport Act, 1933. The section provided for an exemption to the effect that it would not be an offence to carry merchandise exclusively within an exempted area or areas. It was established that the defendant's lorry carried merchandise and further that they did not possess a merchandise licence. However at the time the lorry was observed being driven it was in an exempted area. The issue in the case was whether the onus of proof rested on the defendants to show that the lorry had been driven exclusively within an exempted area. These facts made the case one which was fit for the application of section 78 of the County Officers and Courts (Ireland) Act, 1877. Thus, on the basis ofthe reasoningof Gibson J. in The King (Sheahan) v. Justices of Cork 43 it was deemed incumbent on the defendant to demonstrate that he came within the particular exemption specified in section 9 of the 1933 Act. In addition to holding that section 78 of the 1877 Act was applicable, Davitt P. considered the legal issue in Bridgett in light of the decision in McGowan. The result of so doing was as follows. Once the prosecution were able to establish that the defendant had no merchandise licence, and that merchandise was in fact transported, then the onus rested on the defendant to show that the case came within one of the exceptions. 44 Developments in England The leading modem English authority on the peculiar knowledge principle is R v. Edwards. 45 In that case the Court of Appeal reviewed the appellant's conviction for selling liquor without a justice's licence contrary to Section 160 1(a) of the Licensing Act, 1964. The point of law to be considered was the following: is there an obligation on the prosecution to call evidence to prove the the defendant did not hold a justice's licence? The prosecution had failed during the defendant's trial to come forward and prove that he did not hold a justice's licence. Lawton C. J., after reviewing the relevant authorities, 46 held that they had established an exception to the requirement that the prosecution must prove its case beyond all reasonable doubt. His lordship wrote: "In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in 57