The Court of Appeal has dismissed Darren Nulty’s appeal against a High Court refusal to let him seek judicial review over CCTV footage that gardaí viewed but did not retain. The appeal concerned whether the missing footage created an arguable risk that he could not receive a fair trial. The court did not decide the criminal charge or whether prohibition would have been the appropriate remedy if leave had been granted.
The case arose after €3,623 went missing from the safe at the Dark Horse public house in Blackrock, Dublin, in early March 2014. Nulty worked at the pub. Garda Robert McNicholas and the manager, Alan Fitzpatrick, viewed footage covering several days. A roughly 30-second segment showing Nulty opening the safe, taking out a cash bag, entering a room outside the cameras’ view and returning the bag was downloaded and preserved. The remainder of the footage viewed was not kept.
According to the judgment, Nulty accepted that he came to the pub on Sunday, 2 March, before his scheduled 6pm shift. He told gardaí he had come to correct till records, and said he accessed the safe to retrieve receipts. He denied taking money. The prosecution was initially for burglary, but the DPP had indicated an intention to substitute a theft charge. The Court of Appeal said that proposed change did not affect the judicial review application.
Nulty argued that footage of other safe access could have allowed comparison with his actions and supported cross-examination about whether his conduct appeared more suspicious than anyone else’s. The court noted that neither Nulty nor his solicitor had asked whether the footage showed other occasions when the safe was accessed. It also considered that evidence of other authorised access would establish an opportunity for theft, something that could be addressed at trial without the missing footage.
The High Court had refused leave, finding that Nulty had not shown how the additional footage might assist his case and that the trial court could address any unfairness, including by excluding CCTV evidence if necessary. On appeal, Justice Birmingham said the low threshold for leave was not “non existent” and agreed that the Supreme Court’s decision in Whelton v. O’Leary was relevant. He said requiring retention of footage to support questioning about “relative suspiciousness” went too far on the circumstances presented.
The Court of Appeal agreed that the arguability threshold had not been crossed and dismissed the appeal. It did not address whether prohibition would have been the appropriate remedy in a case where a fair trial risk had been established.