Nulty v DPP

JurisdictionIreland
JudgeMr. Justice Richard Humphreys
Judgment Date27 November 2015
Neutral Citation[2015] IEHC 758
Docket Number[2015 No. 615 J.R.]
CourtHigh Court
Date27 November 2015

[2015] IEHC 758

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2015 No. 615 J.R.]

BETWEEN
DARREN NULTY
APPLICANT
AND
DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

Constitution – Crime & Sentencing – Prohibition of trial – Preservation of evidence – Leave to seek judicial review – Fair procedures – Risk of fair trial

Facts: The solicitor of the applicant sought leave ex parte for orders of prohibition for restraining the respondent from further prosecution of the applicant for the offence of burglary and theft. The solicitor of the applicant contended that there was a risk of unfair trial of the applicant due to the failure of the respondent to preserve the entire evidence containing the potential exculpatory evidence.

Mr. Justice Richard Humphreys dismissed the application for leave to seek judicial review. The Court, in consonance with the decision of the Supreme Court in Byrne v DPP [2011] 1 I.R. 346, held that before granting leave in relation to the missing evidence cases, the Court must be satisfied that the evidence alleged to be missing was relevant and that the primary forum for ensuring that the accused had a right to fair trial was the Court of trial. The Court found that in the present case, the claim of the applicant of not preserving the relevant CCTV footage for the time period during which the money was stolen, could be contested at trial amply by affording the applicant to cross-examine the key witnesses and even the concerned Garda. The Court held that the trial Court was vested with ample powers to deal with any potential unfairness. The Court held that the remedy of prohibition of trial should be used sparingly and in exceptional circumstances.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 27th day of November, 2015
1

In Irwin v. DPP [2010] IEHC 232 Kearns P. expressed the view that applications for leave to seek judicial review involving prohibition of a criminal trial on the grounds of failure to preserve evidence represented a ‘ cottage industry’ and, when engaged in as a matter of routine, were ‘ a grave abuse of the legal process’ in the light of their effect on the rights and interests of victims. He was of the view that in future such applications should be brought on notice to the Director of Public Prosecutions.

2

I would respectfully agree with Kearns P. in this regard. Indeed, in the light of such considerations and the effect of the grant of leave on the rights and interests of third parties, there is much to be said for putting the Director on notice of broader categories of applications for prohibition of criminal trials (going beyond failure to preserve evidence). Such a procedure can often assist (whether by the making of formal submissions or simply by having the court's attention drawn to additional materials) in differentiating the meritorious applications from the unmeritorious at an early stage and thereby preventing undue delays in the criminal process. However in the absence of any general rule having been introduced since the Irwin decision requiring such notice as a matter of course, the court in any event has discretion under O. 84 r. 24(1) (as amended) for good and sufficient reason to put the respondent on notice of an application on a case by case basis.

3

In the present case Mr. Colman Fitzgerald S.C. on behalf of the applicant sought leave ex parte to apply for orders of prohibition restraining the Director 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 theft pursuant to s. 4 of that Act. I directed that notice be given to the respondent, following which Mr. James Dwyer B.L. appeared for the Director of Public Prosecutions. Mr. Dwyer did not seek to make any formal submission but drew my attention to some relevant authorities.

Facts
4

The complaint made in this leave application relates to failure to preserve evidence. The underlying criminal matter is still before the District Court and therefore, in the absence of any return for trial or election as to mode of trial as yet, no time issue arises such as would engage the decision in Coton v. DPP [2015] IEHC 302.

5

The issue arises from the disappearance of a sum of money from a safe in a public house in Blackrock, County Dublin in March, 2014. It is said that the applicant was one of ‘a number of’ people who were able to access the safe at the material time, although in fact it would appear from the papers that there were only two other such persons, one of whom was the person who made the complaint to An Garda Siochána. The complaint made was that a sum of about €3,623 disappeared from that safe sometime between the early hours of Saturday 1st March, 2014 and Tuesday 4th March, 2014.

6

Garda Robert McNicholas was tasked with viewing CCTV footage obtained from a camera covering the safe from which the money was taken. He did so in the company of, and with the assistance of, the bar manager of the pub, Mr. Alan Fitzpatrick, being the person who made the initial complaint.

7

Garda McNicholas and Mr. Fitzpatrick viewed footage covering a period of several days. The precise period is variously described as from 1st to 3rd March, 2014, or from 28th February to 3rd March, or 28th February to 2nd March, depending on the various statements of the times involved in a witness statement, a précis of evidence and a letter from Garda McNicholas.

8

Having watched the CCTV footage, whatever period it covered, it is said that Garda McNicholas ‘ consciously and deliberately’ decided to download and save only approximately 30 seconds of footage which records a particular incident which it is not necessary to refer to in detail for the purposes of this judgment. It is said that Garda McNicholas chose not to obtain and preserve the footage showing the safe for the remainder of the period during which the money disappeared.

9

It is said in the statement of grounds that Garda McNicholas ‘ chose to disregard the potential exculpatory relevance of the remainder of the CCTV footage’ and that ‘ [t]he remainder of the CCTV has been destroyed or is, in any event, no longer available to the Gardaí’.

10

Garda McNicholas' explanation as stated in correspondence was that ‘From viewing the footage of the dates in question, this incident was by (sic) the only suspicious activity that occurred in the course of this investigation … Due to the very large period of time involved it was not possible or feasible to copy all footage from Friday the 28th of February 2014 to Monday the 2nd of March 2014 inclusive.’

11

Following the charging of the applicant there then followed considerable correspondence in relation to disclosure of CCTV by the prosecution. This was accompanied by applications to the District Court to strike out and regarding disclosure. On 27th July, 2015 the applicant's solicitor again applied to have the case struck out on the basis of a contention that the court's order on disclosure had not been complied with. Judge Watkin refused the application and remanded the case to 14th September, 2015 marking disclosure as peremptory against the prosecution. She also remarked presciently that undisclosed evidence could be dealt with at the trial. There then followed further correspondence and a further unsuccessful strike out application.

The test for a leave application on notice
12

The general threshold for the establishment of legal grounds for a leave application is of course that of arguability ( G. v D.P.P. [1994] 1 I.R. 374). In Damache v. D.P.P. [2014] IEHC 139 Edwards J. reviewed recent caselaw and stated that even in a leave application on notice, the appropriate test remains that of a showing of an arguable case, which I would apply as being the current position (although from time to time, the question has been posed as to whether there is any case for the adoption of a higher threshold, a question I referred to in Gallagher v. D.P.P. [2015] IEHC 644).

13

In G. v. D.P.P., at p. 377, Finlay P. listed the matters which an applicant had to show. One of those was arguability as to the grounds of the application. A separate one was that an applicant must show ‘ if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure’.

14

The test that judicial review be the appropriate remedy is not, on the basis of that formulation, subject to the threshold of arguability. The court considering leave must be of the view that judicial review is the appropriate mode of proceeding, not that it is merely arguable that this is the case.

15

A proposition might itself be arguable but the court might take the view that another forum is the appropriate place to make that argument.

Key requirements to obtain relief in relation to failure to preserve evidence
16

In the present case, the Director drew to my attention a number of relevant authorities, particularly the Supreme Court decision in Byrne v. DPP [2011] 1 I.R. 346 and the recent decision of the Court of Appeal in Sirbu v. DPP [2015] IECA 238.

17

The two consequences of Byrne that are particularly relevant for present purposes, and that, it seems logical to conclude, need to be satisfied even at the leave stage, are:

(i). that an applicant must engage with the facts in order to demonstrate the relevance and significance of the evidence alleged to be missing, and

(ii). that regard must be had to the consideration that the primary onus of ensuring the right to a fair...

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