Nulty v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 12 May 2016 |
| Neutral Citation | [2016] IECA 144 |
| Docket Number | Record Number: 2016/49 |
| Court | Court of Appeal (Ireland) |
| Date | 12 May 2016 |
Birmingham J.
Sheehan J.
Edwards J.
[2016] IECA 144
Record Number: 2016/49
THE COURT OF APPEAL
Prohibition – Burglary – Arguability – Appellant seeking orders of prohibition – Whether appellant established an arguable case
Facts: The appellant, Mr Nulty, was an employee of Dark Horse public house in Blackrock, Dublin. In March 2014, a sum of ?3,623 disappeared from the safe of the public house. This was reported by the manager, Mr Fitzpatrick, to the Gardaí and the matter was then investigated. Garda McNicholas viewed CCTV footage from the area where the safe was located covering the period from the 28th February/1st March to the 4th March. The footage showed Mr Nulty opening the safe in the office area at 2.10 pm on the 2nd March and taking a full blue cash bag out. Mr Nulty was then seen going into a back office with the cash bag and closing the door of the office. At that stage he was out of view of the CCTV cameras. Approximately 30 seconds later Mr Nulty left the back office with the bag having been opened and some of its contents having been removed. Mr Nulty then placed the bag into the safe and locked it. 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 the 2nd March at a time when he was not on duty as an employee, but denied that he had stolen money from the safe. An 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. The appellant sought leave to apply for orders of prohibition restraining the respondent, the DPP, from further prosecuting him 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. On the 27th November 2015 the High Court (Humphreys J) refused leave on the basis that the appellant 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. Humphreys J took the view that the application had failed to cross the threshold of arguability, relying upon?Whelton v O?Leary?[2011] 4 IR 544. The appellant appealed to the Court of Appeal from that judgment, submitting that in placing emphasis on?Whelton, Humphreys J 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. Secondly, it was 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, it was submitted that he erred in failing to distinguish the facts in that case from the facts of the instant case.
Held by Birmingham J that Humphreys J was entitled to attach considerable significance to the?Whelton?case as it was clearly relevant. Birmingham J found that the arguments advanced by the appellant were without merit and failed to engage with the reality of the situation. Birmingham J agreed with the view of the judge in the High Court that the arguability threshold had not been crossed and that this was not a case where leave to seek judicial review should have been granted.
Birmingham J held that the appeal should be dismissed.
Appeal dismissed.
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.
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.
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.
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.?
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.?
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.
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...
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