Court of Appeal dismisses appeal where District Court judge refused reasons for rejecting weak submissions without breaching natural justice.

THE COURT OF APPEAL

JUDICIAL REVIEW

Neutral Citation Number: [2017] IECA 196

Birmingham J.

Mahon J.

Hedigan J.

Appeal No. 2016/124

BETWEEN

CHRISTOPHER CONNORS

APPELLANT

-AND-

DISTRICT JUDGE JAMES FAUGHNAN

FIRST RESPONDENT

-AND-

THE DIRECTOR OF PUBLIC PROSECUTIONS

SECOND RESPONDENT

JUDGMENT of Mr. Justice Hedigan delivered on the 30th day of June 2017

1. This is an appeal against the judgment and order of the High Court (O’Regan J.) of 15th February, 2016, refusing an order of

certiorari to quash the appellant’s conviction of 23rd September, 2014, and the two month suspended sentence imposed upon him on

7th October, 2014, for “handling stolen property”. On 24th November, 2014, the appellant was granted leave to seek judicial review

on the basis that the District Court judge had breached fair procedures and natural justice by:

(i) failing to give any or adequate reasons for refusing a direction to acquit;

(ii) acting in a manner tantamount to refusing to give reasons;

(iii) breaching fair procedures by indicating that he did not have to give reasons;

(iv) erred in law and acted in excess of jurisdiction by stating that he was not obliged to give reasons in the

circumstances of the case.

Background

2. On 16th December, 2013, Gardaí entered the appellant’s dwelling in Clanbrassil Street and located therein a stolen blue canvas

holdall bag that had been taken in the course of a burglary in County Monaghan on 23rd November, 2013. The full and zipped up bag

was located in a very small bedroom shared by the appellant with his partner, Bridget Kelly. On the 22nd of September 2014 she

pleaded guilty to handling the stolen bag. On the 23rd of September 2014 the appellant pleaded not guilty to the handling charge but

expressly accepted at the start of the District Court hearing that the bag had been stolen and that it had been found in his bedroom.

Detective Garda Ryan testified that when he called to the appellant’s apartment on 16th December, 2013, to execute the search

warrant, it appeared to him that the appellant, who admitted him into the bedroom, had only very recently got out of bed. His partner

was still in bed. A number of items were seized in the course of the search on the suspicion that they constituted stolen property

taken in the course of various crimes. One of these items was the blue holdall bag the subject of this case. Sergeant Watters seized

the bag because he suspected it had been stolen by the appellant. However, although the appellant was questioned at three

subsequent Garda interviews, nothing probative arose to substantiate such a suspicion. Accordingly, after the injured party identified

the bag as her property and when it was confirmed to be stolen, the appellant was charged with the offense of handling contrary to

s. 17 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (“the 2001 Act”). The appellant’s defence as put to Detective

Garda Ryan in cross examination was that it was his partner, Ms. Kelly, and not himself who had brought the bag into the room.

Sergeant Watters described the dimensions of the bedroom and that the double bed occupied most of the room space. He had

located the holdall bag on the floor of the bedroom between the bottom of the bed and the wall. The zipped up bag was full of China,

cutlery and crystal glasses however no charges had been proffered in relation to the contents. After the two Garda witnesses had

given their evidence and the prosecution had closed its case, the appellant applied for a direction on the basis of two very brief legal

submissions.

3. These submissions were as follows:

“I have two submissions to make very briefly in relation to this matter. The first is that I think it was Detective Garda

Ryan indicated that he suspected that it was Mr Connors who stole these items and as the Court will be aware that

section 17 of the Criminal Justice (Fraud Offences) Act indicated that handling has to occur otherwise than in the course

of stealing. It’s an alternative offence so that it can’t be both. So, if the Garda was suspecting that this gentleman has in

fact stolen the items, my submission is that he can’t have been charged with the alternative charge of handling the items

and on that basis I’m saying that this charge should be dismissed.”

Further and linked with this submission counsel for the appellant continued:

“[C]onsidering that the section itself states that, “a person is only guilty of handling if otherwise in the course of stealing

he or she knowingly or being reckless as to whether it was stolen dishonestly receives…” et cetera et cetera So, it’s I

suppose part of the offence that it’s otherwise than in the course of stealing and considering that the guard has given

evidence that he suspected that it was Mr Connors who stole these items, it would seem to me that it would be a logical

follow-on from that that he can’t then be guilty of the handling of that particular offence or that particular piece of

property.”

4. The second submission made by counsel for the appellant was as follows:

“The second submission I have is in relation to Detective Garda Ryan’s evidence where he indicated that Mr Connor’s

partner, Ms Kelly, has already entered a guilty plea to those matters. Obviously if the Court were to find both parties

guilty, there would have to be some evidence of a joint enterprise or common design. The State have made – have led no

evidence whatsoever in relation to that. So, on that basis if some other party has already entered a guilty plea to this

matter, I would submit that outside of the State running a case on joint enterprise or common design that Mr Connors

can’t also be convicted of the same offence and that evidence certainly wasn’t before the Court. So, on that basis I’m

submitting that Mr Connors should not be also convicted of an offence that his partner has already admitted to.”

5. In relation to the first submission the judge indicated that he was not accepting the submission. He gave no reason. There followed

a brief exchange in which the District Court judge suggested that counsel for the appellant should have pursued with the Garda the

question of his suspicion of theft on the part of the appellant if that was the case that he wished to make. In relation to the second

submission the District Court judge simply responded that he believed that the appellant had a case to answer. The District Court

judge indicated to counsel for the appellant that he was not entitled to reasons for acceptance or rejection of the submissions.

Following a brief exchange the District Court judge recited the last two lines of the charge:

“… knowing that the property was stolen or were reckless as to whether it was stolen…”

He then stated that he was not accepting counsel’s submission.

6. On 15th February, 2016, O’Regan J. delivered a short ex tempore judgment in the application as follows:

“This is an application for an order quashing a decision of the District Court following a trial which occurred on 23rd of

September 2014. And that in turn followed the finding of a blue holdall bag at the bedside of the accused’s bedroom,

which he shared with his girlfriend on 16th of December 2013. The offence the accused was charged with is under section

17 of the 2001 Act. Only one charge was preferred against the defendant and this was confirmed by Mr Clarke in the

transcript at page 7, and the handling of the bag was the offence. During the course of evidence, a garda gave his view

that he suspected the accused of having stolen the items. Following this, there was a submission on behalf of the

accused, one, that because of the reference to the stealing he could not be charged with handling and two, because of

the involvement of his girlfriend, she having pleaded guilty on the previous day to 23rd of September, 2014 a common

design had to be established. The submission in relation to the charge of handling as opposed to stealing was made at

page 9 of the transcript and the submission in relation to the involvement of the girlfriend and the subsequent necessity

to establish a common design was made at page 11 of the transcript. After both submissions, the judge quoted from the

charge and this appears at page 12 of the transcript.

The relief is sought on grounds relating to the manner in which the District Court addressed the arguments raised on

behalf of the accused as opposed to any of the possible scenarios arising under section 17 of which the defendant was

later convicted. There are two relevant decisions of the Supreme Court, namely Kenny of 2014 and O’Malley v. Ballagh of

2002. In the 2014 judgment of the Chief Justice, she reviewed prior cases including European Court cases. And in the

course of the case of Ruiz v. Spain of 2001, it was held that: “reasons for a decision cannot be understood as requiring a

detailed answer to every argument”. And the Chief Justice refers to this at paragraph 21 and 22 of her judgment. In this

judgment of the Supreme Court, at paragraph 15, it is stated that: “The fact that the nature and ingredients of the

offence are straightforward is an important factor”. She also held that the onus rests on the applicant. In this matter,

there was an admission which appears at the earlier part of the transcript that the items were indeed found in the

accused’s premises and that the owner of the property was allowed to go. There was reference to the stolen – or the

allegedly stolen property. At paragraph 24 of the Chief Justice’s judgment, she says there is no requirement on a trial

judge to elaborate on the obvious. I think this judgment is consistent with the prior Supreme Court judgment of O’Malley

v. Ballagh. And in that case the judicial review was successful on the basis that the defendant did not know which of the

arguments the Court was rejecting. In this matter, I believe that the defendant did know of the charge, he knew of the

fact that both of his arguments were being rejected and the basis of that rejection was the content of section 17. And

having regard, therefore, to the necessity of giving reasons in the case of a straightforward matter, I believe that the

application must be refused as both submissions were dealt with by the judge in his recitation of section 17.”

7. The grounds of appeal herein are as follows:

(i) The learned trial judge erred in law by failing to apply the law as set out in Kenny v. Judge Coughlan and the DPP

[2014] IESC 15 and O’Mahony v. Ballagh [2002] 2 I.R. 410; reaffirmed by the Supreme Court subsequent to the hearing

before O’Regan J., in the case of Oates v. Judge Browne and the DPP [2016] IESC 7;

(ii) The learned trial judge erred in fact and in law by holding that the District Court judge had given any or any sufficient

reasons for his decisions;

(iii) The learned trial judge erred in law by holding that the appellant’s case was of similar simplicity to that in Kenny v.

Judge Coughlan and the DPP [2014] IESC 15 and accordingly, the reasons given were sufficient;

(iv) The learned trial judge erred in fact and law by holding that as the District Court judge had read out s. 17 of the 2001

Act this was sufficient to satisfy the obligation to give a reason for his decision in circumstances where the District Court

judge had not in fact done so, but counsel for the DPP in the hearing in the High Court had;

(v) The learned trial judge erred in law in holding that following a summary trial the only entitlement of a convicted person

was to leave the court knowing what they have been convicted of and why they have been convicted, such however not

including the reasons for such;

(vi) The learned trial judge erred in law by failing to address, in any way, the fact that any comments of the District Court

judge were in the context of the District Court judge believing and having specifically indicated he did not have to give

reasons and that there was superior court authority affirming his position;

(vii) The learned trial judge erred in law by failing to address the District Court judge’s incorrect reference to the decision

in O’Brien v. District Judge John Coughlan & Anor. [2014] IEHC 425 and the decision of the Court of Appeal in that case at

[2015] IECA 245.

The submissions of the appellant

8. The appellant submitted that the following principles can be extracted from the case law:

(i) It is an essential and fundamental element of a fair trial that a person is aware of the reason(s) as to why he is

convicted and the same should be provided accordingly. This includes an indication of which arguments made on behalf of

an accused are being accepted and which are being rejected;

(ii) This right has its origins in the Constitution;

(iii) Reasons should be given to allow an accused person and his/her advisors make a decision as to how they wish to

proceed with the case – be it giving evidence, requesting a case stated or contemplating judicial review proceedings;

(iv) Public confidence in the judicial process is heightened when rational reasons are explained and furnished;

(v) Reasons given should be expressed with clarity;

(vi) The extent and detail that the reasons to be given will depend on the nature of the offence before the court, the

venue of the hearing and the length of the court list on the day;

(vii) Where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced

on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the

other;

(viii) A failure or refusal by a decision maker to explain or give sufficient reasons for a decision may amount to a ground

for quashing it.

9. In this case it is submitted that the District Court judge not only failed to engage with the arguments made by counsel but he

specifically stated that he was not obliged to “enlighten” counsel as to the reasons for the rejecting the submissions made. The

appellant further submits that in her ex tempore judgment, the learned High Court judge appears to have based her decision on two

factors:

(i) the judgments of the Supreme Court in O’Mahony v. Ballagh and Kenny v. Coughlan, and

(ii) an erroneous assumption that District Judge Faughnan read out the content of s. 17 of the 2001 Act to support his

rejection of the submissions made. The appellant submits that the learned High Court judge was incorrect in her reliance

on both of these factors.

The appellant further submits that the learned High Court judge erroneously interpreted and applied the ratio in O’Mahony and Kenny.

The appellant further submits that the learned High Court judge in her ruling did not deal with the fact that the District Court judge

informed counsel that he did not have to give reasons for his decision. Nor, it is submitted, did she deal with the erroneous reference

by the District Court judge to O’Brien. The appellant also submits that at the hearing before the High Court, counsel for the DPP

consistently referred to aspects of the underlying facts of the case and the nature of the alleged offence. This, he submits, is a

practice deprecated by Hardiman J. in O’Keeffe v. Connellan [2009] 3 I.R. 643 at p. 653. Finally it is submitted that the primary basis

for the learned High Court judge’s ruling was influenced by her erroneous belief that the District Court judge had gone further than he

did in terms of giving a reason in that she thought he had recited the whole of s. 17 of the 2001 Act.

The submissions of the second respondent

10. The learned High Court judge had no difficulty in rejecting the appellant’s claim. The case was a straightforward one and was

determined by the judge in the context of the reliefs sought, the submissions made and by specific reference to the District Court

transcript. The learned High Court judge determined that the appellant knew the charge that he faced and that he was aware that

both of his arguments had been rejected and the basis therefore. The judge it is submitted correctly concluded that it was a

straightforward matter and the District Court judge had adequately dealt with the case before him. The appellant made further

submissions in relation to the two matters upon which a direction was sought although it would appear that those two matters were

not in fact pursued before the High Court in judicial review. The challenge in judicial review was solely based upon the proposition that

the judge in the District Court failed to give reasons. The respondent’s submissions in this regard are directed towards demonstrating

that in fact the grounds for the application for a direction were very weak ones. As to the obligation to give reasons, the respondent

submits that there is in fact no real difference between the parties herein and the disagreement between them is on the basis of how

the case law should be applied to the facts of this particular case. The respondent submits that the District Court judge entertained

and engaged with the appellant’s two brief submissions before he rejected them. Thus they submit this is an entirely different type of

a case to Oates. It’s closest comparator is Kenny. Extensive reasons were not required. The transcript records that, when pressed for

reasons, the judge explained his position. There was no evidence that the appellant had perpetrated the theft and an historic Garda

suspicion was not sufficient. The District Court judge pointed out that the appellant had the opportunity to further explore that

suspicion with the Garda if he had so wished but he had not done so. The prosecution solicitor responded to the appellant’s

submissions and highlighted the fact that the appellant and his partner shared the same bedroom and thus they both had control of

the stolen property. The District Court judge then offered the appellant’s counsel another opportunity to respond but he declined. The

District Court judge was not initially inclined to give reasons but when pressed by counsel to do so he did. In this regard he quoted

from the charge and he specifically referenced the last two lines of the charge … “knowing that the property was stolen or were

reckless as to whether it was stolen.” That, it is submitted, represented an engagement with and a response to both of the

appellant’s submissions. The District Court judge indicated that he was not accepting either of the appellant’s submissions. The

District Court judge concluded that a prima facie case had been established. In the context of the detection of the full stolen holdall

in the appellant’s small bedroom it was open to the judge to find a nexus between the appellant’s state of knowledge and the

commission of the offence. He specifically cited the alternatives of “knowledge” and “recklessness” by reference to the charge sheet

that contained the specific terminology used by the legislature in section 17. It is submitted that it is difficult to see how his partner’s

guilty plea could somehow change that dynamic. The appellant knew the case he had to meet, was aware of the statutory

presumptions that he could seek to rebut, yet, he declined to give evidence. The District Court judge was then entitled to convict on

the evidence and he acted within jurisdiction in so doing. The appellant could have been in no doubt of the outcome of the trial

and/or why he was convicted. The respondent submits that the learned High Court judge expressly noted and cited the parts of the

transcript that were relevant to her rulings including the relevant portion of the charge sheet containing the elements of s. 17 that

the District Court judge had quoted. The learned High Court judge expressly noted that the District Court judge quoted from the

charge. She did not suggest that it had been recited chapter and verse.

Decision

11. This application for judicial review is brought on the basis of a failure by the District Court judge to give reasons as to why he

rejected the two submissions made by counsel for the appellant in the District Court. The learned High Court judge correctly identified

this as the substance of the appeal. She considered the judgment of the Chief Justice in Kenny. She particularly noted that there was

no requirement on a trial judge to elaborate on the obvious. She went on to hold that the appellant did know the charge against him,

did know that both of his submissions were being rejected and that the basis of that rejection was the content of section 17. She

held that the District Court judge’s reference to the section and his recitation thereof, in the context of such a straightforward

matter was sufficient.

12. What is the extent of a District Court judge’s obligation to give reasons? The fundamental principle is that outlined by Murphy J. in

O’Mahony v. Ballagh [2002] 2 I.R. 410 where he stated at page 416:

“… every trial judge hearing a case at first instance must give a ruling in such a fashion as to indicate which of the

arguments he is accepting and which he is rejecting and, as far as is practicable in the time available, his reasons for so

doing.”

This principle was elaborated by Charleton J. in Lyndon v. Judge Collins [2007] IEHC 487 where he stated at paragraph 7:

“7. Now, I am satisfied as a matter of law that judicial bodies are required to give reasons for their decisions, but the

extent of which judicial bodies are required to give reasons for their decisions depends upon the nature of the case that

they are dealing with and the nature of the remedies that flow from such a decision.”

Charleton J. continued at paragraphs 9 to 13:

“9. The third ruling was in essence a ruling to the effect that, and I take it, and I think any reasonable person would take

it, to the following effect, that the defence case had been rejected in its entirety and that the evidence given on behalf

of the prosecution by the prosecuting Garda was accepted by the learned judge.

10. It seems to me that there is a difference in relation to this case compared to many of the cases helpfully opened to

me by Mr. McCarthy. This is not a case where, consequent upon the reasons, one would have a right to appeal for

instance in relation to a pension, and so need detailed reasons as to why you were not so entitled under an administrative

scheme. I am satisfied as well that it is different to O'Mahony v. District Judge Ballagh [2001] IESC 99 for the simple

reason that this is not a case where it was essential to know going into the witness box whether or not one's main legal

point had been accepted or rejected. I fundamentally take the view in this case that although the reasoning was short,

that there was reasoning and the reasoning was to the effect that I do not accept the case made in testimony, on sworn

testimony by the accused, whereas I do accept the case in entirety beyond a reasonable doubt made by the garda

officer.

11. Now, I do not think that it is necessary, as was said by Mr. Justice Murphy in his Supreme Court judgment in

O'Mahony v. Ballagh that it is not essential that district judges give reserved decisions or in every case to give reasons to

a high standard of academic excellence. What is essential, however, is that people know going out of any district criminal

court what they have been convicted for and why they have been convicted, and in this instance I think it is clearly

implied in what the learned district judge said that she was convicting the accused because of the fact that she

completely rejected his testimony and accepted instead the testimony of the prosecution.

12. On the point of discretion in judicial review, I would add that I feel in this case, and it would be a rare case indeed

where an applicant has won a case on a matter of law in judicial review that one would apply the principle enunciated by

Henchy J. in State (Abenglen Properties Ltd) v Dublin Corporation [1984] IR 381, but I feel that if indeed there was a

problem in giving reasons for a decision, which I have ruled did not happen, that the learned district judge did not fall into

unconstitutionality thereby, as Mr. McCarthy has argued, depriving the applicant of his right to a trial in the District Court

under the Constitution, followed by a rehearing under the statutory scheme in the Circuit Court, an appeal in this case

would meet every alleged defect, if there was a defect, in the ruling that Judge Collins gave; see Stefan v Minister for

Justice [2001] 4 IR 203.

13. Lastly, I am completely satisfied having read the papers and, as I have said, I am grateful for the way they have been set out by

the applicant, that there is no injustice in this case which cannot be met by an appeal. It is obvious in my judgment what happened.

In consequence of that, even if it were to be the case that I was satisfied in some way that there was a defect, I would refuse the

remedy of certiorari because I simply do not believe it is in the interests of justice. I believe it is apparent what actually happened.”

13. In this case, the learned High Court judge, as noted above, relied upon Kenny. It is indeed a very good comparator for this case.

In Kenny the District Court judge upon application for a direction simply stated that he was satisfied with the evidence presented and

saw no reason to dismiss the prosecution. In the High Court on the hearing of the application for judicial review, O’Neill J. described

the applications made as being on grounds weak or unstateable. He was of opinion that the terse response of the District Court judge

was readily understandable to the parties and unequivocally showed that the District Court judge accepted the evidence of the

prosecution. On appeal in the Supreme Court Denham C.J. stated at paragraph 24:

“24. As the case-law of the European Court of Human Rights indicates, and as also stated earlier in this judgment, the

degree and extent to which a decision of the District Court must be explained by giving reasons will depend in turn on the

nature and circumstances of the case. In some cases, it may be necessary to succinctly but fully explain the reasons for

the decision so that the parties have a proper understanding of the reasons upon which it was based. In this case the

offence was simply that of speeding and the mode of trial was summary. This was one of hundreds of such cases that

come before the District Court routinely every day of the week. There had been a clear presentation of the issues by the

parties, in adversarial proceedings. The District Court Judge indicated that he preferred the evidence given on behalf of

the prosecution. The District Court Judge said that he was accepting the evidence of the prosecution. In the

circumstances that was sufficient reason. There was no requirement for the trial judge in such a situation to elaborate on

the obvious.”

It is to be noted that the Chief Justice cited and did not demur from O’Neill J.’s observation that where submissions were so weak or

unstateable the District Court judge’s simple refusal to accept them was sufficient to meet the obligation to give reasons.

14. In the light of the above case law, the extent of a District Court judge’s obligation to give reasons may be summarised as follows:

(a) District Court judges must give their rulings in such a fashion as to indicate which of the arguments are accepted and

which are rejected.

(b) So far as is practicable in the time available, District Court judges should give their reasons for rejecting or accepting

those arguments.

(c) The extent to which District Court judges are required to give reasons for their decisions depends upon the nature and

circumstances of the case and the nature of the remedies that flow from such a decision. The simpler the case, the less

the reasoning that is required.

(d) There may be cases so straightforward that merely indicating that the evidence is sufficient to satisfy the District

Court judge that there is a case to answer or to convict will be adequate reasoning. A clear statement of rejection of one

side’s evidence and acceptance of the other may suffice. There is no need to elaborate on the obvious.

(e) Those convicted must know of what they have been convicted and why. Legal submissions considered by the District

Court judge to be weak or unstateable, particularly when assessed in the light of the evidence, may be answered

adequately by a simple statement that they are rejected.

15. Applying these principles to this case; the appellant has referred the Court to the District Court judge’s comments that appear on

the transcript at p. 12 where, having rejected the application for a direction, he stated that he did not have to enlighten counsel for

the appellant as to his reasons for acceptance or rejection of his submissions. He went further to indicate that counsel for the

appellant was not entitled to reasons as to why his submissions were rejected. However when pressed further the District Court judge

read out the last two lines of the charge:

“… knowing that the property was stolen or were reckless as to whether it was stolen…”

16. The District Court judge appears to have been referring to the decision of Kearns P. in O’Brien v. Judge Coughlan [2014] IEHC 425

when he stated that he did not have to enlighten counsel in respect of the acceptance or rejection of submissions and that counsel

was not entitled to reasons. He also indicated that he believed there were other High Court decisions supporting this proposition. As

can be seen from the above cases and the principles derived therefrom, this is too broad a statement. Kearns P. in the above

judgment actually states in the first sentence of the decision part of his judgment at paragraph 15:

“It goes without saying that judges must provide reasons for their decisions and this obligation has been emphasised

repeatedly by the superior courts.”

He then went on to find that the fact the District Court judge in that case had not explicitly stated in his ruling that he had

considered the option of community service and given reasons for not imposing such service where the same was neither sought nor

consented to, was not a requirement.

17. As stated above, it is only where the nature of the case is so straightforward or obvious or the submissions are so weak or

unstateable that the need for a District Court judge to give reasons is met by simply stating that the application for a direction is

refused.

18. In this case the submissions made were very weak. The first was that as the Garda had suspected the appellant of stealing the

bag, he could not be charged with handling it. It might well be that the appellant was suspected of theft but he was charged only

with handling. There can be no bar on charging for the handling where the Garda did not have the evidence to prefer a case of

stealing. Joined with this submission was another linked one that the handling had to be otherwise than in the course of stealing. In

this case the handling could not be in the course of stealing since there was a three week gap between one action and the other.

The second submission was to the effect that since the appellant’s girlfriend had pleaded guilty to handling the bag, the appellant

could not be convicted because two people cannot be convicted of the same offence. This is patently not so. Any number of people

may be convicted of handling the same property. In Kenny, the Chief Justice cited without demurring, the finding of O’Neill J. in the

High Court where he found no breach of the appellant’s rights where weak or unstateable points raised in submissions were rejected

without giving reasons. The submissions made herein fall into that category and the judge’s dismissal of them without giving reasons

for doing so was permissible and did not breach the appellant’s constitutional right to fair procedures and natural justice.

19. Although this disposes of the appeal, it is fair to observe that when challenged by counsel on his refusal to give reasons, the

District Court judge did in fact engage with the arguments raised. He questioned whether counsel for the appellant should have

pursued with the prosecuting Garda the question of his suspicions of theft on the part of the appellant. He ended up reciting that part

of s. 17 which referred to knowledge that the property was stolen or being reckless as to whether it was stolen. It may have been a

rather inconclusive exchange but it was clearly removed from a refusal to engage at all.

20. For the above reasons the appeal is dismissed.