I move amendment No. 9:—
In sub-section (3), paragraph (b), page 4, line 6, to delete the words "the defendant proves that" and insert instead the words "whenever the prosecution shall fail to prove".
Sub-section (1) of Section 3 provides that certain things must be done, such as the printing and publication of the notice, and sub-section (2), as Senator Duffy has pointed out, says that the instrument may be valid even though these things have not been done. Section 3 says that where:—
"(a) a person (in this sub-section referred to as the defendant) is charged with the offence of contravening (whether by act or omission) a provision in a statutory instrument to which this Act primarily applies, and
(b) the defendant proves that, at the date of the alleged contravention, notice of the making of the said statutory instrument had not been published in the Iris Oifigiúil,
the charge shall be dismissed, unless the prosecutor satisfies the court that at the said date reasonable steps had been taken for the purpose of bringing the purport of the said instrument to the notice of the public or of persons likely to be affected by it or of the defendant."
This seems to be a revolutionary method of bringing a prosecution. We all know that, according to the law, every defendant is innocent until he is proved guilty, and he can only be proved guilty by the prosecution making its case properly. If he is prosecuted under a statutory instrument, and if the instrument is published and a copy of Iris Oifigiúil is produced that will be held to be sufficient evidence of the making of the Order. I have no objection to that, but here we say that if it has not been published in Iris Oifigiúil—I do not care what the reason is—and if no notice has been given of where copies of it may be obtained, the position will be that a man may be prosecuted and an unprinted, type-written document may be produced in court. If this section is left as it is, when that unprinted document is produced, instead of the defendant or his advocate having the power to say: “I object to this; it is not a proper document because it does not comply with sub-section (1) of Section 3,” the defendant must go into the box and swear that he has made a search in copies of Iris Oifigiúil from the date of the making of the Order up to that date and could not find that the Order had ever appeared in Iris Oifigiúil.
In other words, you want the defendant to prove a negative before any case is made against him. Under the law, as it is, no defendant need go into the box until all the proofs are complete. Once the prosecutor says that he has completed his case he is not allowed to heel tap, but here, before the prosecution is completed— if the Section is allowed to stand as it is—the defendant must prove a negative—that he has searched for a copy of, the Order in the Iris Oifigiúil. Imagine asking a man from Connemara to say that he has searched copies of the Iris Oifigiúil from 1943 to 1948, and that no such notice has appeared in it. The section is an absurdity. It is for the prosecution to prove something. The sub-section says further that—
"the charge shall be dismissed, unless the prosecutor satisfies the court that at the said date all reasonable steps had been taken for the purpose of bringing the purport of the said instrument to the notice of the public, or of persons likely to be affected by it or of the defendant."
Even if the defendant proves that it did not appear in the Iris Oifigiúil, if the prosecution can prove that it has taken steps to bring this to the notice of the public or to the notice of persons likely to be affected, or to the notice of defendant, that will be held to be sufficient. This certainly loads the dice against the defendant and in favour of the prosecution. It makes the prosecution easy, and I think that is a bad thing.
The Minister says that he put in sub-section (2) for fear that by a mistake the document was not printed. Why should a prosecution take place on an invalid document, and why should it lie on the defendant to prove that the document on which he is prosecuted is invalid? Is it in the hope of getting him into the box so that he may be cross-examined and the case proved out of his own mouth, which is contrary to public policy?
I ask the Minister not to allow the Bill to be passed in this form because it is too revolutionary. What I suggest is reasonable, if the prosecutor fails to prove that the notice was published, the charge shall be dismissed, and I leave in the rest,
"unless the prosecutor satisfy the court that on the date of the offence reasonable steps had been taken to bring the purport of it to the notice of the defendant and persons affected".
If the prosecution can prove, even though they fail to prove that it was printed, that the purport of the Order was brought to the notice of the defendant, there could be a prosecution, and that is going very far. It provides too many alternative methods of convicting a man charged. I have no sympathy with a man charged under these orders, but I think he ought to get fair play, and the law ought not to be radically changed as is being done in this case. It is a dangerous precedent and I have seen cases of orders made by local authorities which have gone very far indeed towards presuming a defendant guilty before he has been proved guilty, and that is contrary to natural justice.