A Traveller man from Kilrush, who claimed he was falsely accused of stealing a toasted sandwich from a busy Killarney shop and petrol station, has been awarded €2,500 plus costs at Killarney Circuit Court.
By David Byrne
Michael Kelly, of Crawford Street, Kilrush, had sued Donal Hegarty, John Hegarty and Elsie Hegarty, trading as Hegarty Bros Service Station and Hegarty’s Spar, for defamation.
Judge Helen Boyle told defence barrister Richard Liston she believed Michael Kelly’s version of what had happened outside Hegarty’s Spar on the Muckross Road, Killarney, in an incident concerning the payment or non-payment of food from the store’s deli counter on July 2, 2018.
After hearing the evidence, Judge Boyle said it was clear Mr Kelly felt he was wrongly accused, in front of his family and bystanders, of stealing the food items.
Evidence was heard from Mr Kelly, his wife Teresa Purcell, and Spar employees Ross Fleming and Nicola Murphy.
Michael Kelly told Judge Boyle that Spar shop assistant Ross Fleming had accused him of not having paid for food he had purchased. The Kilrush man, who was visiting Killarney at the time with his family, said he stopped at the shop on his way to Torc Waterfall and ordered a hot chicken breast and a toasted sandwich from the deli.
He said after he ordered the food he was told he could pay for the items while waiting for the toasted sandwich to be made. Mr Kelly told Judge Boyle that the shop assistant behind the deli had put two barcode stickers onto the bag of chicken, allowing him to pay for the two items.
He then proceeded to get a bottle of water, a bottle of club orange, and a packet of 20 cigarettes, and ate the chicken while he was queuing up, the court heard. The court also heard that after Ross Fleming served Mr Kelly, the bag was thrown into the bin, as requested by Mr Kelly.
After paying for the items, Mr Kelly said he went back to the deli counter and collected the sandwich before leaving the shop. He said he was followed out of the shop and then stopped by Ross Fleming, who, he said, accused him of ‘not paying for the sandwich’.
Mr Kelly told the court he felt he was ‘being singled out’ as he was a Traveller.
In cross-examination, defence barrister Richard Liston said Mr Fleming denied he ever accused Mr Kelly of not paying for the sandwich and claimed that he (Mr Fleming) said: “Sorry, I don’t think I took for that sandwich.”
Michael Kelly replied: “No, he said ‘you never paid for it’. He said it two or three times.”
The court heard that Mr Kelly then returned to the shop and showed Ross Fleming the bag in the bin in a bid to prove he had paid for the items.
Mr Kelly said: “I felt degraded. I felt low.”
After leaving the store for the second time, Mr Kelly later returned and took the discarded food bag with him as he wanted to prove to his wife and son that he had paid for the items.
He said: “I got tormented after a few minutes and turned around and went back to the shop. The main reason I took it was to prove to them that I didn’t steal it.”
In her evidence, Mr Kelly’s wife, Teresa Purcell said ‘a boy’ followed her husband out of the shop and said ‘you didn’t pay for that stuff’.
She said: “The boy got louder. It was like he was getting angry or something”. Ms Purcell said that as Mr Fleming was accusing her husband of stealing, an elderly lady, and others outside the shop, started listening in.
Spar store manager Nicola Murphy said she believed the incident was an ‘honest mistake’ but it shouldn’t have occurred and she ‘understood the distress’ caused to Mr Kelly.
Judge Boyle said that while there was a disagreement over what Mr Fleming said to Mr Kelly, she was confident the words spoken ‘were certainly taken by the plaintiff that he had taken the goods’
Judge Boyle said that while there was ‘not enough evidence’ to show that the events were malicious, Mr Kelly was ‘unfortunately’ followed out to the forecourt and felt he was being accused of stealing.
A separate claim of false imprisonment by Mr Kelly against Hegarty’s Spar was ‘unfounded’, according to Judge Boyle. She said there were no threats to call Gardaí, no physical touching, therefore there was no evidence of false imprisonment.
