The High Court dismissed Darren Nulty’s application for leave to seek judicial review aimed at stopping his prosecution for burglary and theft. Mr Justice Richard Humphreys ruled on 27 November 2015 that the application had not shown an arguable case and that judicial review was not the appropriate way to raise the complaint.
The underlying criminal case remained before the District Court. The application concerned money reported missing from a safe at a public house in Blackrock, County Dublin, in March 2014. The complaint was that about €3,623 had disappeared between the early hours of 1 March and 4 March.
Garda Robert McNicholas viewed several days of CCTV footage with the pub’s bar manager, Alan Fitzpatrick, who had made the initial complaint. The judgment said the period covered was described inconsistently in the papers. McNicholas retained about 30 seconds showing a particular incident, while the remaining footage showing the safe was not preserved and was no longer available to gardaí.
In correspondence, McNicholas said the retained footage showed the only suspicious activity identified during the investigation and that copying all the footage was not feasible given the period involved. Nulty’s solicitor argued that the missing footage might have helped the defence by showing who else accessed the safe or acted suspiciously. The Director of Public Prosecutions, after being put on notice, made no formal submissions but drew the court’s attention to relevant cases.
The judge said an applicant seeking to stop a criminal trial over missing evidence had to explain the evidence’s significance and how its loss affected the actual defence. The material before him included no affidavit from Nulty setting out his defence theory. The solicitor’s statements about possible assistance from the footage were speculative, the judge said, and did not establish an arguable case.
The court also held that the complaint should be left to the trial judge. That judge could decide whether any CCTV evidence should be admitted and could address potential unfairness through rulings; the defence could also cross-examine McNicholas and Fitzpatrick about the footage they had viewed. Humphreys stressed that he was not deciding whether the CCTV excerpt would be admissible or whether the prosecution would ultimately be fair. He found no inevitable unfairness established on the material before him.
The application for leave was dismissed. There was no order as to costs because the Director had not substantively participated.