Mooney v an Post

 
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1997 WJSC-SC 3360

THE SUPREME COURT

Hamilton, C.J.

O'Flaherty, J.

Barrington, J.

132/94
MOONEY v. AN POST
Between/-
CHARLES MOONEY
Plaintiff/Appellant

and

AN POST
Defendant/Respondent

Citations:

POSTAL & TELECOMMUNICATIONS ACT 1983 S9(1)

COMPANIES ACTS 1963 – 1991

CIVIL SERVICE REGULATION ACT 1956

MCGRATH V COMMISSIONER OF AN GARDA SIOCHANA 1991 1 IR 69

LARCENY ACT 1916 S17(2)(b)

GUNN V BORD AN CHOLAISTE NAISIUNTA IS DEARTHA 1990 2 IR 168

RIDGE V BALDWIN 1964 AC 40

GLOVER V BLN LTD 1973 IR 388

Synopsis:

Judicial Review

Appeal; postman dismissed for allegedly tampering with post; acquitted of criminal charge; whether acquittal served to defeat civil complaint; demands of natural / constitutional justice; whether entitled to an oral hearing before an independent chairperson Held: Appeal dismissed; principles of natural justice had been sufficiently observed (Supreme Court: Hamilton CJ, O'Flaherty, Barrington JJ 20/03/1997) - [1998] 4 IR 288

Mooney v. An Post

1

Mr. Justice Barrington delivered the 20th day of March, 1997. [NEM DISS]

THE FACTS.
2

As appears from the Judgment of the learned High Court Judge in the present case the Plaintiff was employed as a postman by the Defendants and had been so employed for a period of fifteen years at the time of the events giving rise to these proceedings. Until the enactment of the Postal and Telecommunications Act, 1983his status was that of a Civil Servant who could be dismissed at will by the Government. Under that Act, the control and operation of the National Postal Service was transferred from the Minister for Posts and Telegraphs to the Defendants who were incorporated as a Company under the Companies Acts, 1963– 1991, pursuant to Section 9.1 of the Act. The Act also provided that his terms and conditions of employment should continue to be regulated by the provisions of the Civil Service Regulation Act, 1956.

3

On the 27th March, 1984 a complaint was received from an employee of a haulage firm, Groupage Ltd., at Coolock Industrial Estate, that a postman had been seen acting suspiciously on waste ground at that Company's property that morning. An Investigation Branch Officer and a Detective Garda from Coolock Garda Station visited the premises. A number of badly mutilated postal packets as well as fragments of cheques and postal orders (made payable to the Irish Messenger) had been found earlier. At least eighty postal packets were involved.

4

On the 30th March, 1984, the haulage firm employee positively identified Mr. Mooney, after seeing approximately a hundred postmen, as being the person whom she had seen acting suspiciously on the 27th March, 1984. She later made a signed statement to that effect. Part of the Defendants problem in this case was that this lady, Mrs. Gaughan, did not, initially, wish to get involved in any proceedings which might be brought against the Plaintiff and gave her co-operation in return for an undertaking that she would not be called upon to give evidence.

5

On the 4th April, 1984, the Defendants, in order to check on suspicions which they now entertained concerning the Plaintiff, prepared three test postal packets and had them placed among items due to be dealt with by the Plaintiff. Two of these items were due for delivery by him and were delivered. The third item, containing two United States five dollar bills and addressed to the "Apostleship of Prayer"should have been rejected by the Plaintiff. The Plaintiff did not, however, reject it and this test item was never delivered and was never subsequently found.

6

The Plaintiff was then interviewed by the Defendants Investigating Officer who described his attitude as "both aggressive and obstructive". This description has been criticised by Counsel for the Plaintiff on the grounds that the Plaintiff clearly submitted to a search of his person and consented to a search of his home. It would appear however that the Investigating Officer was referring to the fact that the Plaintiff denied all knowledge of the missing test packet and of the mistreated postal packets recovered from waste ground at Coolock on 27th March, 1984 and when asked if he had been at the said waste ground on the day and time referred to replied that he could not "remember back to yesterday week".

7

The Plaintiff did however agree to take part in an identification parade and on the 4th April, 1984 he was identified at an identification parade by another employee of the haulage company, Groupage Ltd., as being the person he had seen on the 27th March, 1984 in the vicinity of the waste ground where the mistreated postal packets were discovered. This employee however refused to place his hand on the Plaintiff's shoulder at the identification parade because of the fact that both men lived in the same area.

8

Later on the 26th October, 1984 and the 8th November, 1984 statements were obtained by an Investigation Officer from two further employees of Groupage Ltd. who had initially refused to co-operate in the investigation but who said that they had observed a postman on the waste ground in question on the 27th March, 1984. One of these employees stated that he saw a postman acting in a suspicious manner at the waste ground and that he had a bunch of envelopes in his hand and that he had moved away when the witness approached. Another of these employees said he had seen a postman tearing up papers on the date in question.

9

On the 18th December, 1985 the Plaintiff was acquitted by a jury of all charges arising out of the complaints in these proceedings.

10

A protracted correspondence took place between the Plaintiff and his Solicitors on the one part and the Defendants and their Solicitors on the other part. This correspondence is set out in considerable detail in the Judgment of the learned trial Judge. In the course of the correspondence the Defendants made perfectly clear to the Plaintiff the nature of the allegations against him and the general nature of the evidence on which it was based. They furnished him with copies of written statements which they had received from witnesses but with the names of the witnesses deleted. The Plaintiff also had the Book of Evidence prepared for his trial. The Defendants offered him an opportunity to make a statement or representations and warned him that, in the absence of any explanation from him, they might draw adverse inferences from the evidence already in their possession. The Plaintiff and his Solicitor, on the other hand, while denying the charges, concerned themselves with procedural matters and demanded an inquiry presided over by an independent chairman and an oral hearing at which the Plaintiff would be entitled to cross-examine through Counsel any person prepared to give evidence against him. The Defendants refused to grant such an oral hearing but did offer to meet the Plaintiff and his Solicitor in the presence of the investigating officer and to discuss the evidence against the Plaintiff and to hear any reply or any representations that he might wish to make. The Plaintiff did not take up this offer.

11

As already stated the correspondence between the parties was protracted and was analysed by the learned trial Judge. Nevertheless one should refer to some salient letters. On the 13th January, 1986 the Defendants wrote to the Plaintiff in the following terms:

"Dear Mr. Mooney,

It is proposed to recommend to the Board of this Company that you be dismissed from your post as postman.

As a result of detailed investigations, we are of the opinion that you wilfully mistreated postal packets on the 27th March, 1984 at Coolock Industrial Estate. This opinion is based on the statements of four people who worked on the estate. We are also of the opinion that you were responsible for the disappearance of a postal packet addressed to the Apostleship of Prayer, 37 Leeson Street, St. Stephen's Green, containing two American five dollars bills on the 3rd April, 1984. This opinion is based on statements made by members of the staff of this company.

In order to afford you an opportunity of furnishing any further explanation or making any representations you wish to offer or make, no further action will be taken by us for a period of fourteen days.

Yours faithfully."

12

On the 17th September, 1986 the Defendants wrote to the Plaintiff's Solicitors, a letter headed:-

"Re: Charles Mooney, 148 Marigold Court, Darndale, Dublin 3.
13

Dear Sir,

14

Please refer to your letter of the 8th July, 1986 about the above.

15

Before proceeding further with this matter we are prepared to give Mr. Mooney and his legal representatives an opportunity of meeting Company Management concerned in the case so that he can seek clarification of any points of which he may be in doubt and to respond in any way he may wish to the points put to him in my letter of the 13th January, 1986. I should mention that we will arrange to have Mr. J. Cosgrave present at any meeting which might take place. Mr. Cosgrave is the officer who carried out the investigations into the case and is fully familiar with all aspects of it.

16

If you wish such a meeting to take place perhaps you would ring me at 735251 to arrange a mutually...

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