Court of Appeal dismisses appeal against refusal of leave for judicial review regarding retained CCTV evidence.

THE COURT OF APPEAL

Record Number: 2016/49

Birmingham J.

Sheehan J.

Edwards J.

BETWEEN

DARREN NULTY

APPELLANT

AND

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Birmingham delivered on the 12th day of May 2016

1. This is an appeal from the judgment and order of the High Court (Humphreys J.) of 27th November 2015, refusing an application for

leave to seek judicial review by way of an order of prohibition.

2. The background to this appeal is that in very early March 2014, a sum of €3,623 disappeared from the safe of the Dark Horse public

house in Blackrock, Dublin, a premises where Mr. Nulty was an employee. The fact that this had occurred was reported by the

manager of the public house, Mr. Alan Fitzpatrick, to the gardaí and the matter was then investigated with Garda Robert McNicholas

taking charge of the investigation.

3. Garda McNicholas, along with Mr. Fitzpatrick viewed CCTV footage from the area where the safe was located covering the period

from the 28th February/1st March to the 4th March. There is some slight uncertainty about the full extent of the period viewed. The

footage showed Mr. Nulty opening the safe of the public house in the office area at 2.10 pm on Sunday the 2nd March, 2014.

According to Garda McNicholas, Mr. Nulty is seen on CCTV opening the safe and taking a blue cash bag out. It is said that it is clear

from the CCTV footage that this cash bag is full when it is taken from the safe, Mr. Nulty is then seen going into a back office with

the blue cash bag and closing the door of the office. At that stage he is out of view of the CCTV cameras. Approximately 30 seconds

later Mr. Nulty leaves the back office with the blue money bag having been opened and some of its contents having been removed.

Mr. Nulty then placed the blue money bag into the safe and locked it.

4. In the course of witness statements furnished as part of the disclosure process both Garda McNicholas and Mr. Fitzpatrick deal

with what they viewed. In that regard Garda McNicholas comments:-

“On viewing the CCTV footage of the area covering the Dark Horse pub safe I observed a man I now know to be Darren

Nulty enter the office area of the Dark Horse pub at 2.11 pm on Sunday the 2nd June, 2014. Mr. Nulty is seen on CCTV

opening the pub safe and taking a blue cash bag from the safe. It is clear from the CCTV footage that this cash bag is full

when Mr. Nulty takes it out of the pub safe. Mr. Nulty is then seen going into the back office of the Dark Horse pub with

this blue cash bag and closing the door of the back office then taking himself out of view of CCTV footage. Approximately

30 seconds later Darren Nulty is seen exiting the back office with the blue money bag having been opened and some of its

contents having been removed. I then observed Darren Nulty place this blue money bag into the Dark Horse pub safe and

lock the safe.”

5. Mr. Fitzpatrick deals with the issue as follows:-

“Only three people have access to this safe. These people were Cathal Lostley, Darren Nulty and myself. On viewing back

the CCTV from Friday the 28th February, 2014, to Tuesday the 4th March, 2014. This CCTV covers the pub safe. On

Sunday the 2nd March, 2014, the CCTV records Darren Nulty coming into the office four hours before he was due to start

working. This was at 2.11 pm. Darren Nulty is seen opening the safe and opening the cash box with the entire week’s

takings inside and entering the back office and closing the door. He then comes out a minute later. The bag containing

Saturday night’s takings is clearly seen being tampered with.”

6. Mr. Nulty was questioned and detained as part of the investigation. He accepted that he had come to the licensed premises on the

afternoon of Sunday the 2nd March, 2014, at a time when he was not on duty as an employee, his shift was due to start at 6.00 pm,

but denied that the had stolen money from the safe. The relevant section of the interview is as follows:-

“Q. Can you elaborate on why you were there that weekend? When were you scheduled to work?

A. I was due to work at 6.00 pm. I came in around 3.00 pm. The reason why was to fix over registers. Mistakes on the till

roll. The till receipts are kept in the office.

Q. Where are they kept?

A. In a small room in the office.

Q. Did you do them the night before?

A. Yes, but there was mistakes from the night before which had to be rectified to balance the till report.

Q. Why? Does it happen often?

A. yes occasionally.

Q. What type of mistakes?

A. Maybe €100 up or down.

Q. Why did you do it when you were going into work anyway?

A. It was playing on my mind.

Q. How long did the process take?

A. Approximately 5 minutes.

Q. What did it entail?

A. Attending the previous night’s cash sheets.”

At a later stage of the interview Mr. Nulty was shown footage from the Dark Horse pub on the 2nd March, 2014, from 14.09.58 to

14.11.26:-

“Q. Have you seen the footage?

A. Yes.

Q. Why did he access the safe? You didn’t mention this previously.

A. I accessed the safe to retrieve receipts. I think they were O.R. receipts. Receipts that there was a mistake made on.

Q. Is this normal procedure?

A. It would be normal for me.

Q. Did you do this before? (in the Dark Horse)

A. No.

Q. The receipts in the safe? Can you describe who they were stored?

A. In a cotton bank bag.

Q. What else was in the bag?

A. Money wrapped in elastic.

Q. The takings from the previous Saturday?

A. Yes.

Q. How much approximately?

A. Approximately €1,500 to €2,000.

Q. Did you count it the night before?

A. Yes at two different intervals.

Q. What colour was the bag?

A. I don’t know.

Q. Did you take the money from the bag?

A. No.

7. The position is that the footage of the period lasting some 30 seconds which showed Mr. Nulty opening the safe, taking a bag from

it and bringing it to another location which was off camera before returning the bag to the safe was downloaded. However, that was

the entirety of the footage which was downloaded and footage covering the rest of the period of several days which was viewed was

not retained.

8. The application for judicial review arose from a complaint that the gardaí preserved only a small part of the available footage and

that the entirety of the footage should have been downloaded.

9. An application was made, initially, as is usual, on an ex parte basis seeking leave to apply for orders of prohibition restraining the

DPP from further prosecuting the applicant for an offence of burglary contrary to s. 12(1)(b) of the Criminal Justice (Theft and Fraud

Offences) Act 2001 and an offence of theft pursuant to s. 4 of the same Act. The position is that Mr. Nulty was originally charged

with burglary, but it has been indicated that it is intended to change or substitute the charge to one of theft simplicitor. However, in

the context of the application for judicial review the change or substitution of the charge is not of any significance. Humphreys J.

directed that notice be given to the respondent and in those circumstances counsel appeared but did not seek to make any formal

submissions but drew the judge’s attention to some relevant authorities.

10. In essence the High Court was dealing with a leave application relating to alleged failure to preserve evidence. The High Court

judge began his judgment by quoting with evident approval from Irwin v. DPP [2010] IEHC 232, where Kearns P. had expressed the

view that applications for leave to seek judicial review involving prohibition of a criminal trial on grounds of failure to preserve

evidence were becoming a “cottage industry” and further remarked that when engaged in as a matter of routine, such applications

were a “grave abuse of the legal process”.

11. Humphreys J. refused leave on two bases. The judge took the view that the applicant had made no clear case let alone provided

evidence as to how the additional hours of CCTV footage which were not retained might have assisted his case and he took the view

that the application had failed to cross the threshold of arguability and therefore the applicant had failed in the first hurdle. In doing

so he was heavily influenced by a decision of the Supreme Court in Whelton v. O’Leary [2011] 4 I.R. 544, the facts of which he

described as strikingly similar.

12. The judge also addressed the question of whether this was a matter that was appropriate for judicial review or one where it was

a matter more properly left to the court at trial. He was of the view that the trial judge would have ample power to deal with any

potential unfairness and expressed confidence that if the court of trial was of the view that it would be unfair to admit the CCTV

evidence, such as it was, that it would be excluded. Moreover, even if the downloaded CCTV footage was available to be adduced

the applicant would have an opportunity to cross examine Garda Robert McNicholas and Mr. Fitzpatrick in relation to the unretained

portion of the footage.

13. The issue in the High Court and the issue now on this appeal is whether Mr. Nulty has established an arguable case, that in the

particular circumstances of this case, there is a real risk that, by reason of the investigating garda’s decision to download and

preserve only a portion of the entirety of the footage that was available to be viewed, the applicant cannot obtain a fair trial. Then,

if that is established there is the further question of whether the appellant has established a prima facie case that judicial review in

the form of an order of prohibition is the most appropriate remedy.

14. In relation to the argument that there is a real risk that a fair trial cannot take place the appellant says that what was left unsaid

in the garda statements is as significant as what was actually said. The appellant asserts that it has never been said by Garda

McNicholas or Mr. Fitzpatrick that the safe was only opened on one occasion during the period in respect of which the footage was

viewed. Mr. Nulty comments that if that was the case that it is likely, indeed very likely that that would have been stated.

15. However, it must also be said that neither the appellant nor his solicitor ever asked in correspondence whether the footage

recorded other occasions when the safe was accessed and objects were removed from it.

16. One might think that in a cash business such as a public house, that a safe would likely be accessed from time to time perhaps at

opening time and again at closing time. However the suggested significance of the Sunday afternoon footage is not that Mr. Nulty

accessed the safe, he was an employee authorised to do so, but that he did so at a time when he was off duty, and that in doing so

that he removed a cash bag, went to another location off camera and returned therefrom shortly afterwards at which stage the bag’s

appearance had altered.

17. The appellant says that if the safe was accessed on other occasions and if a cash bag was taken out that the trier of fact is

denied the opportunity to make a comparison between what occurred and there will be no evidentiary basis for cross examining Garda

McNicholas or Mr. Fitzpatrick on the “relative suspiciousness of what Mr. Nulty did as compared to anyone else”.

18. As has already been mentioned the trial judge placed significant emphasis on the Supreme Court decision in Whelton v. Judge

O’Leary, a case which he described as bearing a striking similarity. Notwithstanding that the appellant says that the case can be

distinguished on a number of grounds, it is appropriate to look at the Supreme Court decision in some detail.

19. The facts of that case were that the applicant for judicial review had been employed as a cashier in an amusement arcade in

Cork. His employer suspected that a theft had occurred as a result of a shortfall in takings and reported the matter to the gardaí. An

investigation commenced. The investigating garda, in company with the employer, viewed the CCTV footage relevant to the night in

question. Certain extracts were downloaded and retained for use as evidence but the gardaí did not take possession of the hard drive

of the system. Fennelly J. summarised what the gardaí did as being that:-

“They selected only those parts which were incriminating, insofar as the applicant was concerned. These amounted to

some 3 minutes and 36 seconds of footage composed of seven individual clips. These clips showed the applicant in his

cashier's kiosk on three separate occasions taking currency notes from the till and placing these notes in his left trouser

pocket.”

20. Fennelly J. summarised the applicant’s complaint as being that he was thus unfairly depicted as simply taking money from the till,

whereas he advanced an innocent explanation. That was that staff followed a practice whereby from time to time, when the cash

float in the till was insufficient to meet a payout to a winning customer, employees would lend to the cash float on a temporary basis

or would exchange small denominations for large denomination notes and the staff members would then repay themselves at a later

stage.

21. I had been the trial judge in Whelton. At para. 45 of his judgment Fennelly J. addressed certain observations that I made. He did

so as follows:-

“As I have already recalled, Birmingham J. thought that requiring the retention of footage where no crime is being

committed ‘would be a radical and unwarranted extension of the obligations imposed on the gardaí’. There is great force in

that remark.”

22. O’Donnell J. agreed with the judgment of Fennelly J. McKechnie J. on the CCTV footage point, there was another issue about the

time at which the applicant had been charged following arrest, indicated that he had read the judgment of Fennelly J. and agreed

with the entirety of his judgment and had nothing to add.

23. The appellant submits that in placing the emphasis that he did on the Whelton decision that Humphreys J. erred in a number of

respects. Firstly, he failed to take cognisance of the fact that the Whelton decision was not a leave application and the question of

arguability did not arise in that decision. It is submitted that the trial judge erred in conflating the ratio of the decision in Whelton with

the issue that he had to decide which was one of arguability. Secondly, it is submitted that he erred in failing to take account of the

fact that in Whelton the primary relief sought was certiorari after a conviction and not prohibition. Thirdly, he erred in failing to

distinguish the facts in that case from the facts of the instant case. In the Whelton case, it was submitted as in the present case an

employee was charged with theft from his employer and in both cases the evidence was, in effect exclusively CCTV evidence.

However in the Whelton case the retained CCTV footage showed the applicant taking currency notes from the till and placing them in

his pocket. This was not disputed by the applicant but an innocent explanation was advanced. The appellant says that furthermore in

the Whelton case the investigating garda had sworn an affidavit in which he deposed to being satisfied that “No portion of the

footage which could conceivably be considered material to the guilt or innocence of the applicant was omitted” and “the remainder of

the CCTV footage for the night in question did not provide evidence which tended to exculpate the applicant because the remainder

of the footage [he] viewed showed [the applicant] going about his normal work and contained nothing material to the case”.

24. In my view, Humphreys J. was entitled to attach considerable significance to the Whelton case. It was clearly relevant. The

question of arguability has to be considered at the time the application was made and on the basis of the law and with regard to

decided cases as of the time the application for judicial review was made. The fact that there might have been a time in the past

when a proposition was arguable is neither here nor there. What was once an open question and an arguable point may be decided

when an authoritative decision becomes available.

25. I entirely accept that the threshold to be crossed before leave is granted is a low one. However, while low, it is not non existent.

In Whelton I had made an observation which was approved by the Supreme Court that what was sought there would be a radical and

unwarranted extension of the obligations imposed on the gardaí. In my view precisely the same observation can be made and I do

make it in this case. In my view seeking the retention of material in order to facilitate a cross examination on “relative suspiciousness”

is to push the boundaries too far.

26. It goes without saying that the situation would be utterly and entirely different if the footage had shown an unauthorised person

opening the safe or if the footage had shown an authorised person engaged in opening the safe at a time when it ought not to have

been opened. However, there is no evidence whatever to suggest that anything of the sort was ever viewed or had ever occurred.

27. Assuming in favour of the appellant that the footage, if retained, would have shown Mr. Fitzpatrick or Mr. Lostley accessing the

safe at a time when they would have been expected to do so and indeed required to do so, how would that have assisted Mr. Nulty?

Yes, it would have established that there was a physical opportunity for the theft to occur, but that is something that can be

established before or at trial without any difficulty whatever. In my view there is an unreality in suggesting, and to that extent I find

myself in agreement with the approach of the trial judge, that there is a real risk that a fair trial cannot be achieved because footage

which might have shown that in fact nobody else accessed the safe or might have shown that the safe was accessed as a matter of

routine by those who were authorised and required to do so had not been retained. One must bear in mind that as an employee Mr.

Nulty would be fully aware of the practices that were usually followed and would know for example whether it was the situation that

employees when opening the licensed premises would go to the safe to take out the float for the day and whether at the end of the

trading period they would go to the safe and deposit the contents of the tills.

28. I am afraid that I find that the arguments that have been advanced without merit and ones which failed to engage with the

reality of the situation.

29. I agree with the view of the judge in the High Court that the arguability threshold has not been crossed and that this is not a

case where leave to seek judicial review should have been granted and so I would dismiss the appeal.

30. In those circumstances I do not find it necessary to address the second issue. Situations in which there is a failure to seek out or

preserve evidence may vary greatly, the nature of the evidence in question may vary and the significance of the unretained evidence

for any trial that might take place may also vary greatly. In circumstances where I do not believe there is any remote basis for

suggesting that what occurred here rendered a fair trial impossible, I do not consider it necessary or helpful to address the question

of what my view might have been as to what would have been the appropriate remedy had a different conclusion been reached.