The Gazette 1982

g a z e t t e

a p r i l 1982

the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts subject to provisoes, exceptions and the like, then the prosecution can rely on the exception." 47 This rule constitutes a third exception to the Woolmington rule. The others it will be recalled comprise the following situations: (i) where the defence must establish insanity and (ii) where statutes expressly impose the legal burden of proof. Referring to the statement of Bayly J. in R v. Turner A8 Lawton L. J. was of opinion that it did not establish a general rule to the effect that the mere fact that matter lies peculiarly within a party's knowledge is sufficient to cast the onus of proof on that party. 49 If there were such a rule then, in the words of Lawton L.J.: " . . . anyone charged with doing an unlawful act with a specified intent would find himself having to prove his innocence because if there ever was a matter which could be said to be peculiarly within a person's knowledge it is the state of his own mind." 50 With respect to this third exception to the Woolmington rule Lawton L.J. stressed that its application does not depend on whether the defendant has peculiar knowledge which enables him to prove the positive of any negative averment. 51 The holding in the Edwards case may be summarised as follows. The exception described by Lawton L.J. is one which is not confined to cases where a party possesses peculiar knowledge but rather is confined to certain enactments which prohibit the doing of an act in those situations which his lordship enumerated. Where such rule is applicable it casts the legal burden of proof on the defendant. This finding by Lawton L.J. that there is a third exception to the Woolmington rule has not gone unchallenged. Zuckerman, writing in the Law Quarterly Review, expressed the view that the rule formulated by Lawton L. J. is historically dubious. 52 Referring to the dictum of Bayly J. in R v. Turner the writer observed that it did not lay down a general rule which shifted the burden of proof on to the defendant. Rather, the dictum "was used as a consideration in statutory interpretation and in weighing evidence." 53 Apart altogether from historical considerations the rule in Edwards has/been criticised because it casts the legal burden of proof on the defendant. In this regard it has been stated: "The effect of casting the legal burden upon the defendant is that a judge must so direct aj u r y , .. . that if their minds are evenly balanced as to whether or not the defendant is guilty it is their duty to convict. This seems a far cry from Woolmington v. D.P.P. 5 *

Zuckerman was equally critical of the rule. He pointed out that the cases in which the burden of persuasion (i.e. the legal burden) was placed on the defendant were concerned with minor offences which involved the doing of an act without a licence or without similar qualifications. In such situations it is of little consequence whether it is the defendant or the prosecution who have to satisfy the legal burden.of proof. This is because very little evidence is required in order to discharge this burden of proof. For example, it would, according to Zuckerman, be sufficient for the prosecution to show that the defendant failed to produce a licence when asked to do so. 55 This prompted the writer to state: "It is, therefore, paradoxical that this type of situation, which presents so little difficulty from the prosecution's point of view, should have been seized upon as an opportunity to make a fundamental departure from the rule that the burden of proof in criminal cases lies on the prosecution." 56 It emerges from a consideration of the Irish cases which deal with the peculiar knowledge principle that such principle is, despite some judicial reluctance, applicable to criminal cases. The crucial consideration which has to be taken into account in determining whether the legal burden of proof is to be shifted pertains to the requirements of the administration ofjustice. It is submitted that the obligation imposed on the prosecution to prove its case beyond all reasonable doubt is so fundamental to our system of criminal justice that it should only be departed from for the weightiest of reasons. The requirements of the administration of justice may indeed furnish a basis upon which to formulate an exception to the Woolmington rule. However it is difficult to envisage how the possession of peculiar knowledge by a party can in any context, and no matter how qualified, justify the placing of the onus of proof on that party. Irish case law has to date established that the possession of peculiar knowledge does not relieve the prosecution from establishing a prima facie case. It is submitted that, in addition, such knowledge should not relieve the prosecution from the task of discharging the legal burden of proof. There would seem to be an absence of any compelling reason as to why the situation should be other than this. The proper function of the peculiar knowledge principle is, it is submitted, this. Once it is established that a defendant does possess such knowledge then, upon the prosecution establishing a prima facie case, the evidential burden should shift to the defendant. Failure to discharge this evidential burden should be sufficient to enable the prosecution to claim that it has satisfied the legal burden of proof. The adoption of this view would not militate against the requirements ofjustice. In addition the Woolmington rule would not only be respected but its central importance in our criminal justice system would be further emphasised and entrenched. • Summary and Conclusion

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