The Gazette 1982

g a z e t t e

a p r i l 1982

Footnotes 1. [19351 A.C. 462; [19351 All E.R.I; 25 Cr. App. Rep. 72. 2. Ibid., p. 482. See also Mancini v. Director of Public Prosecutions [19421 A.C.I; [19411 3 All E.R. 272. 3. The People (Attorney-General) Berber and Levy [1944] I.R. 405, 411., The People (Attorney-General) v. Kennedy (1946] I.R. 517, 521., The People (Attorney-General) v. Byrne [ 197-4J I.R. 1,5. In The People (Attorney-General) v. Oglesby f 1966] I.R. 162 Mr. Justice Kenny observed that "the so-called doctrine of recent posses- sion" does not alter the law relating to the onus of proof in criminal cases as it was stated in Woolmington's Case" (at p. 165). See also The People (A.G.) v. McMahon (19461 I.R. 368. 4. Wigmore on Evidence, 3rd edition, vol. 9, at p. 271. 5. See Julius Stone, Burden of Proof and the Judicial Process: A Commentary on Joseph Constantine Steamship, Ltd. v. Imperial Smelting Corporation, Ltd. 60 L.Q.R. 262 (1944) where the author uses the expression legal burden of proof. Denning, Presumptions and Burdens 61 L.Q.R. 379 (1945) also employs the concept of legal burden of proof. See also Denning's judgments in Emmanuel v. Emmanuel (1945) 61 T.L.R. 5 38, and Dunn v. Dunn 11948| 2 All E.R. 822. 6. Nigel Bridge, in 12 M.L.R. 273 (1949), opts for the expression Tixed burden of proof (at. p. 274). 7. See Thaver's, Preliminary Treatise on Evidence at Common Law, p. 355. 8. This description was used by Lord Denning in his article in 61 L.Q.R. 379. 9. See Bridge, supra, n.6 at p. 277. 10. A good example of this is to be found in section 24(1) of the Firearms Act, 1964. This subsection provides: "where, in a prosecution for an offence under the Principal Act, the existence or non-existence of a firearms certificate, a licence under section 2 of the Principal Act, a permit under section 3 of this Act or an authorisation under section 13 of this Act is material, it shall not be necessary to prove that the certificate, licence, authorisation or permit does not exist." Subsection 2 of the same section states: "where, in a prosecution for an offence under the Principal Act, possession, use or carriage of a firearm or ammunition by a person is proved, it shall not be necessary to prove that the person was not entitled to have in his possession, use or carry a firearm or ammunition." Included among those statutes which cast the legal burden of proof on the defendant are: Intoxication Liquor (Licensing) Act, 1872, (Section 51(4))., Customs Laws Consolidation Act, 1876, (Section 259)., Prevention of Crime Act, 1871, (Section 17). Gaming and Lotteries Act 1956, (Sections 42 and 43)., Wildlife Act, 1976, (Sections 23 (9) and 71)., Misuse of Drugs Act, 1977, (section 22). 11. For example, section 3(2) of the Offences Against the State (Amd.) Act, 1972. 12. 11907] 2 I.R. 5. 13. Ibid., p. 11. Zuckerman, specifically referred to this test of Mr. Justice Gibson's and similar tests propounded by other judges. He argued that it is not possible to distinguish between the definition of an offence and exceptions to it. Where such-a distinction is made it is one of form. In making a distinction between the definition of an offence and an exception to it judges are, according to Zuckerman, imposing, for policy reasons, a particular construction on a statute. See Adrian Zuckerman, The Third Exception to the Woolmington Rule, 92 L.Q.R. 402, at pp. 413-418. 14. Larkin v. Be fast Harbour Commissioners [19081 2 I.R. 214. Per Wright J. at p. 229. 15. [19411 I.R. 406. 16. Ibid., p. 413. In The People (Attorney-General) v. Shribman and Samuels [1946] I.R. 431 Maguire P. observed: "It is well settled that where an offence consists of doing something which persons are not permitted to do unless duly qualified and under special circumstances the onus of disproving the qualification does not rest on the prosecution." at pp. 442-3. The court accepted the test laid down by Gibson J. in Sheahan. 17. |19001 2 I.R. 273. 18. Ibid., p.280. Palles C.B. based this statement of the law on Taylor. The latter stated "that where the subject-matter of the allegation lies peculiarly within the knowledge of one of the parties, that party must prove it, whether it be of an affirmative or a negative character, and even though there be a presumption in his favour." See Taylor on Evidence 9th edition, 1895 at p.266. However in a subsequent edition of Taylor its editors put forward the view that the exception could not be relied upon to its full extent. The principle, they

thought, could be more accurately stated as follows: "That where the facts lie peculiarly within the knowledge of one of the parties very slight evidence may be sufficient to discharge the burden resting on the opposite partv." (Tavloron Evidence, 11 th edition at p.285.). In Elkin v. Janson (1845) 13 M. & W. 655, Alderson B. thought that the exception was too strongly stated and that the rule referred only to the weight of the evidence. See also Abrath v. North Eastern Railway Co. (1883) 1 Q.B.D. 440 at p. 457. Mr Justice Barton observed mPowell\.McGlynnandBradlaw\ 190212 I.R. 154thatit was a mistake to hold that it is a rule of nisiprius that the possession of peculiar knowledge by a party shifts the onus of proof to him (at p. 169). In an earlier case Curran v. Midland and Great Western Railway [ 1896] 2 I.R. 183 counsel argued that the onus of proving intentional and wilful misconduct lay on the company's servants because the subject matter of the allegation lay peculiarly within the knowledge of the company. Palles C. B., who gave judgment in the case, did not refer to the peculiar knowledge principle. 19. (1816) 5 M. & S. 206. 20. Ibid., p. 211. Cross, in referring to this dictum, stated that it does not amount to a general rule. It is he says "a rule of statutory interpretation confined to cases in which the affirmative of negative averments is peculiarly within the knowledge of the accused" (Cross on Evidence, fifth edition at p. 102.). 21. See, for example, R v. Oliver (1944] K.B. 68, John v. Humphreys (1955] 1 W.L.R. 325.,/? v.fwenil 1967] 1Q.B.322(C.C.A.). Both Humphreys and Oliver were referred to in McGowan v. Carville [1960] I.R. 330. 22. Supra, n. 15. 23. (1952] I.R. 304. 24. (1923] 2 K.B. 793; [ 1923] All E.R. 191. Judgment of the court was read by Sankey J. 25. Ibid., p. 795. 26. |1960] I.R. 330. 31. In Buchanan v. Moore |1963( N.I. 194 Lord McDermott L.C.J, left open the question, in cases involving peculiar knowledge, of whether the burden of proof rests on the defendant ab initio or whether it shifts to him upon the prosecution establishing a prima facie case (at p. 196). 32. McGowan v. Carville, supra, at p.356. 33. Ibid., pp.351-2. 34. |1955) 1 W.L.R. 325. See also R\.Oliver[ 1944] K.B. 68. Glan- ville Williams was critical of the finding in Oliver. In that case the appellant was convicted on indictment with supplying sugar without a licence contrary to a specific regulation. The prosecution gave no evidence that the appellant did not possess a licence. It was held that the onus of proof rested on the defendant and, further, that the prosecution were under no obligation to establish a prima facie case that the licence did not exist, (per Viscount Caldecote C.J. at p.75). Williams suggested that the situation prior to Oliver was one where the presence of peculiar knowledge did not shift the burden of proof (i.e. the legal burden). See Williams, Criminal La w, The General Part, second edition, at pp. 902-3. 35. McGowan v. Carville, supra, p. 346. 36. Ibid., p.344. 201., R v. Schama and Abramovitch 11 Cr. App. R. 45., The People (Attor- ney-General) v. Berber and Levey (1944) I.R. 405. 40. See The People(A ttorney-General)\. Oglesby 11966] I.R. 162 at p 167. 41 . The Attorney-General (Comer) v. Shorten; supra, at p.311. 45. (1975] Q.B. 27., 11974] 2 All E.R. 1085., (1974] 3 W.L.R. 285. 46. R v. Turner 5 M. & S. 206. ,R v. Scott 86 J. P. 69., R v. Oliver[ 1944] K.B. 68., Nimmo v. Alexander Cowen and Sons Ltd. (1968] A.C. 107., R v. Rutland and Sorrell [ 1946] 1 All E.R. %S.,John v. Humphreys |1955| 1 W.L.R. 325., McGowan v. Carville | 1960] I.R. 330 and Buchanan v. Moore (1963] N.I. 194. 47. R v. Edwards (1975 ] Q.B. 27, at pp. 39-40. 59 27. Ibid., p.345. 28. Ibid., p.336. 29. Ibid., p.346. 30. Supra, n.15. 37. (1961] I.R. 304. 38. Ibid., pp. 309-10. 39. R v. Crowhurst 1 C. St K. 370., R v. Smith 2C.&.K. 42. (1961] I.R. 313. 43. (1907] 2 I.R. 5. 44. Bridgett v. Dowd 11961 ] I.R. 313 at pp. 321-2