Brian Lenihan Jnr (Dublin West, Fianna Fail)

The provision contained in subsection (3) represents a legislative device to which we often have recourse in legislation where we seek to vary the incidence of proof in accordance with the means of knowledge of the parties to a particular proceeding. It is found in some criminal statutes, mainly statutes relating to summary criminal matters, for example, where the possession of a licence is essential to the commission of a lawful activity and the burden of proving the existence of the licence is cast upon the accused person rather than on the prosecuting authority.

In the context of civil proceedings, as these would be envisaged under the legislation, it is open to the Oireachtas to provide for it, as we have done in carefully guarded terms, because the defendant must be in a position to benefit others in the exercise of his or her official functions and another person must have benefited from the exercise. Not alone must one have the official but one must have also the person who has benefited. The third element is that the defendant in this statutory in personam action does not account satisfactorily for his or her property or for the resources, income or sources of income from which it was acquired. That third element has to be established and then, and only then, it shall be presumed until the contrary is shown. It is still open to the defendant to prove the contrary, that the defendant has engaged in corrupt conduct.

We are laying down a rule about when a court can draw an inference about corrupt conduct and no more than that. That technique is available in criminal statutes but it has to be worded with great care and indicating the precise circumstance which allow us to draw the inference. It has been done in criminal legislation. The courts have been empowered to draw inferences from various matters, for example, in relation to the presence of forensic signs on bodies and so on. Such legislation is in existence and we have simply applied that general principle in specific terms to this particular context to allow the court draw an inference of corruption, which ultimately is an essential inference in the commission of this statutory tort.