Law professor Diarmuid Phelan is on trial for murder because of his “restraint, self-control, patience and quiet hope” that others would have respect for the law and “tragically” a trespasser on his farm is dead because he had no such respect, defence lawyers have told a Central Criminal Court jury.
In his closing address, Mr Sean Guerin SC submitted that a person can use reasonable force to defend themselves and doesn’t have to “take the beating coming”.
“By your verdict you will decide whether that last line of protection and that last vestige of safety remains available to us all as citizens”.
The jury has heard that on the day in question three men – the deceased Keith Conlon, along with Kallum Coleman and Robin Duggan – had trespassed on a wooded area of Mr Phelan’s land while hunting foxes or badgers.
Evidence has been given that Mr Phelan had shouted at two of the unarmed trespassers on his farm to “get back” before he fired three shots from his Smith & Wesson revolver. It is the State’s case that two of the three shots were fired into the air, while the third connected with Mr Conlon.
It is also the prosecution’s case that when the third shot was fired by Mr Phelan, the gun was pointed in the direction of the deceased who was shot in the back of the head when he had turned away to leave. It is in those circumstances, the prosecution say, that the accused intended to kill or cause serious injury to Mr Conlon.
It is the defence’s position that Mr Phelan accidentally hit Mr Conlon while firing three “warning shots”.
Mr Phelan (56) has pleaded not guilty to murdering father-of-four Keith ‘Bono’ Conlon (36) at Hazelgrove Farm, Kiltalown Lane, Tallaght, Dublin 24 on February 24th, 2022. The accused man is a barrister, law lecturer and farmer who owns Hazelgrove, formerly a golf course in Tallaght.
Defence’s second day of closing speech
On the second day of his closing speech today, defence counsel Sean Guerin SC said the incident on February 22nd was very short, with no time for reflection or preparation and had unfolded very quickly.
He said the prosecution had suggested the revolver had been concealed by the accused. “Do you conceal your wallet when you put it in your pocket, do you conceal your phone when you put it in your pocket?”.
Mr Guerin said Mr Conlon knew the accused had a firearm with him – as he had already shot Mr Coleman’s dog Vin with the rifle – before the deceased determinedly marched up the field.
He said Mr Conlon knew he was “closing the gap” on a man with a gun and who was able to use it.
“They [the two trespassers] knew he had a rifle, was willing and able to use it and that didn’t frighten them, that didn’t put them off”.
Counsel said a submission had been made by the prosecution in their closing address that there was some failure on Mr Phelan’s part to make the revolver safe.
He said Ms Roisin Lacey SC, prosecuting, had told the jury in her closing address that the accused had not gone through the safety steps that day such as observing the chamber of the gun and examining the barrel before he discharged it. He submitted that this was “one of the most stupid submissions that has ever been made to a jury in a criminal court”.
Mr Guerin added: “This man who had split seconds to decide what to do and the prosecution is saying he is to be criticised for not making the gun safe. The whole point of the gun was it was dangerous, the whole point of taking it out and firing it was to communicate to Mr Conlon that you are in danger if you don’t stay back”.
He continued: “The point he would take it [the firearm] out and check its safety before using it to defend himself, if you can make any sense of that submission as a criticism of Mr Phelan then there is nothing I can say to win you back. That is just nonsense”.
In her charge to the jury, Ms Justice Siobhan Lankford said any comments counsel say about each other and about the other’s presentation of the evidence should be approached with extreme caution.
She said Ms Lacey was entitled to give her view of the evidence and the same with Mr Guerin. She said neither counsel had intentionally misled the jury or led them astray. “The case is not about counsel or the judge, it’s about the evidence and your assessment”.
Mr Guerin said the firearm in the accused’s pocket was “the last and only line of defence against an attack that was imminent and that is why he used it”.
Counsel said his client was facing an “imminent attack”, being told he was f**ked and they were “going to get him”. In that split second, he said, Mr Phelan had reached for what was at hand; “the less powerful, less dangerous, less lethal and perhaps less accurate of the two firearms he had available to him”.
He said the prosecution case depended on only one explanation for the third shot fired by the accused “going low”, which was “an intentional killing” and that, he submitted, was the only explanation the State “have in all the world” for Mr Phelan being guilty.
Defence experts testimony
He said the defence experts had offered detailed experience as to the reason why the gun would shoot lower than intended “almost without knowing it was happening” and had tried to explain the different ways Mr Conlon could have been killed “without that murderous intent”.
He said there were rational, valid and uncontradicted explanations as to why the gun would shoot lower than intended.
Mr Guerin submitted the accused was an “unremarkable shooter” and “not particularly skilled”. There was no suggestion the accused was “some sort of sharp shooter who could pick off Mr Conlon in such a way”.
He said if the third shot and the revolver were aligned in such a way as to send it three feet over Mr Conlon’s head then the deceased’s movement up the incline could still have brought him into that line of fire.
He said the accused considered himself to be under threat to his life and under serious injury. Counsel said the accused was in particular someone who had “suffered the effects of criminality” in the past, which must have created a real sense of vulnerability and a real sense of being in danger.
He asked the jury to understand that Mr Phelan was someone “with a perfectly rational and justified sense under a sort of low level long running siege on the farm”, where there had been periods of intense and terrifying intrusions. “What was happening on February 22nd was just that: [an] intense and terrifying intrusion onto his farm and in his life”.
Mr Guerin said the prosecution in their closing speech had laid enormous emphasis that the argument between the accused and the trespassers was “all verbal” before Mr Phelan produced his gun.
Counsel quoted a line from ‘Hamlet’, telling the jury: “One may smile and smile and be a villain”. He added: “Talking is the same, you can talk and talk until you get close enough to hit someone”.
He submitted that the trespassers were “never going anywhere” near the gardaí like they had threatened. “It was a ruse to get them closer to Mr Phelan to attack him”.
He said Mr Phelan had asked Mr Conlon and Mr Coleman to stay far enough away from him until he was safe. He said the use of the words” keep your distance” by the accused was key to the case. “He was law abiding, respectful and behaving completely appropriately”.
He submitted the trespassers had spent around an hour that day digging a four foot hole in the wet and heavy February earth. He said the trespassers had their dog Vin waiting “to savage a badger” when it was to be unearthed from the protective sett but then Mr Phelan had shot the dog.
“And suddenly their day’s fun is over and that’s the end of the hunt. There is no other conclusion to draw from the evidence other than these men were angry and willing to act on that anger and to take it out on him physically”.
Mr Guerin said the ultimate question is what Mr Phelan should have done that day. He asked could it seriously be suggested by the prosecution that it would have been safer to fire a shot to the right where the farm hands were standing or into the woods where he feared a third trespasser was.
He said the presence of the rifle did not stop Mr Conlon advancing and the firing of warning shots over his head hadn’t either. “What could possibly be done as a reasonable alternative in those circumstances?”.
The prosecution say, Mr Guerin stated, that the accused was “trigger happy” and too quick to draw his gun.
“The irony of this case is that Mr Conlon in all probability would still be alive if Mr Phelan drew his gun earlier, the problem is he was too slow to draw his gun.” He said the reason Mr Conlon is dead is because the accused didn’t draw his gun until the very last second.
Counsel said it was not that his client was “trigger happy” but was too slow to threaten force and had pleaded with the trespassers to keep their distance.
He said Mr Phelan had trusted in the men’s willingness to respect the law but he left it too late and didn’t realise how intent they were on assaulting him. He said no one who was watching the incident unfold at the farm thought the accused was going to kill Mr Conlon.
“He didn’t intend it, he didn’t even expect it to happen”. He described the fear as real and present.
Mr Guerin said the accused was not responsible in law for Mr Conlon’s death but had taken responsibility for his actions.
The reasonableness of Mr Phelan’s actions, he said, depended on how the jury assessed the alternatives available to him. “Even the prosecution doesn’t suggest he should have just stood there and taken his beating. The law doesn’t expect that, that’s what self defence is, you don’t have to take the beating coming to you and have alternatives”.
He stated the alternative a person has is to use reasonable force and that can be used to defend oneself. “The prosecution says it would have been reasonable to take a gun out and shout you have a gun and are willing to use it. The only issue then is in the direction the gun is taken out and discharged”.
He added: “Detached reflection cannot be demanded in the presence of a serious threat. You can’t expect someone to meet the standard of extraordinary care, accuracy and confidence in their decision making”.
Mr Phelan, he highlighted, had retreated, waited, called for help, waited again and then pleaded with the men to stay away. “The tragedy is not that he withdrew his firearm and fired but that he waited too long”.
The accused, he submitted, is on trial for murder because of his restraint, self control, patience and quiet hope that others would have respect for the law.
“Keith Conlon is tragically dead because he had no such respect and he didn’t believe the most law-abiding of citizens would be prepared to meet his threat of force with force. And because he had the misfortune to learn that tragic lesson on terrain where the prospect of accidental injury with a gun was a very real possibility”.
“By your verdict you will decide whether that last line of protection and that last vestige of safety remains available to us all as citizens”. Mr Guerin concluded his closing speech by asking the jury to return a verdict of not guilty.
The judge will continue her charge to the 12 jurors next Monday.
