Trouble came “uninvited to the door” of a law professor who fatally shot a trespasser on his farm and none of what occurred was the accused’s creation, his defence counsel has told a Central Criminal Court jury.
In his closing address, Mr Sean Guerin SC told the jurors that the case of Diarmuid Phelan was “all about emotion”, and whether the accused was motivated by anger or fear was “at the very core” of his trial.
Counsel said the killing of trespasser Keith Conlon was “a tragedy and a grievous waste of human life” but it did not happen because of any crime committed by barrister Diarmuid Phelan, his defence team argued today.
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 24 February 2022.
The accused man is a barrister, law lecturer and farmer who owns Hazelgrove, formerly a golf course in Tallaght.
Case about ‘fear and anger’ – defence
In his closing speech today, defence counsel Sean Guerin SC said it was not in dispute that Mr Phelan took out his revolver that day and fired a shot, which proved to be fatal.
He said Mr Phelan had shot Mr Conlon and killed him by shooting a bullet into his head. He said these were proven and admitted facts in the case.
However, the lawyer said what was in dispute was how that had happened, in what circumstances and why.
He said James Joyce’s novel ‘Ulysses’ had told the story of Dublin by following one man about the city over an entire day and walking each step with him, telling as only a novelist can about the history of that man. He submitted that this was what the jury had to do in this case.
Counsel said that every jury had to look inside the minds of the actors in the case and to look inside the mind of an accused to see if there was the necessary intent.
“Every jury has to be able to look inside the minds of the participants and this is particularly important in this case,” he added.
Furthermore, Mr Guerin said he would be critical of many parts of the prosecution’s closing speech but submitted that the greatest error of all was when the State said the case was not about emotion.
“This case is all about emotion, two emotions in particular, it’s about fear and anger,” he stressed.
He said the prosecution case is that Mr Phelan was angry when he shot Mr Conlon but the defence case is that the accused was in fear. “Which of those emotions was the motivating factor for what happened is at the very core of this case,” he said.
Mr Guerin told the jurors that this is why they cannot step back and look at events from a distance without walking every step with Mr Phelan up to 22 February 2022.
He said there was “an enormous double standard” by the prosecution in the case; “They want you to stand on the mountain and take a survey of the scene when it suits them”.
“They will tell you everything you might have heard about Mr Conlon kicking a guard in the head and that you can ignore it. And at the same time, they say you know these two men were unarmed and you must treat Mr Phelan as if he knew that,” he continued.
Prosecution ‘fabricated’ witness’ evidence – defence
Mr Guerin asked the jurors how they knew Mr Conlon was unarmed that day on the farm; “what evidence have you received that allows you to draw that conclusion beyond a reasonable doubt”.
He asked the jury that if they saw three men coming out of the bushes on a farm, with one dressed in camouflage gear, would they at least think there is a risk that they had a knife with them.
Counsel said one of the farmhands working at Hazelgrove had that same fear on the day.
He said the prosecution had “fabricated” the evidence of one of the farmhands Pierre Godreu, who had said the first two shots were fired in the air by the accused and that the third shot was fired in a different direction.
“Mr Godreu was asked in his evidence under cross-examination how he knew the third shot was fired in a different direction and it was because he said the man was hit,’ stated counsel.
He said the prosecution had told the jury in their closing speech that Mr Godreu had observed a change in the angle of the firearm. “He never said he did,” he added.
Mr Guerin acknowledged the fact Mr Conlon was killed that day was “a tragedy and a grievous waste of human life” but said the defence case was that it did not happen because of any crime committed by Mr Phelan.
He said the defence case was that the three shots fired were warning shots and never intended to strike the two trespassers.
Counsel indicated that even if the prosecution satisfied the jury beyond a reasonable doubt of the existence of such an intention, the other question was whether the actions of Mr Phelan were “a legitimate use of force in self defence”.
He said this defeated the existence of intention and that was a central question in the case.
Mr Guerin said the prosecution had suggested the four farmhands were a line of defence to Mr Phelan but he submitted that this was not the case, and they were standing on the back of the bank observing. Counsel said the trespassers were “coming for him and he had to meet that situation on his own”.
Counsel said one of the farmhands Julian Roudaut had made a wish upon seeing a rainbow that he would live for the day. He asked the jurors what this told them about what was unfolding.
He said the prosecution had placed all their eggs in the basket of 19-year-old German farmhand Hannah Felgner, who had not shared the experience of the accused in a ravine when he first came across the intruders.
‘This is not a game of Wordle’
All the evidence suggests, Mr Guerin said, that even after the first two shots were fired the intruders had kept coming and continuing to advance towards Mr Phelan, right up to the last moment.
He said there was some criticism being made by the prosecution that defence counsel had used words like “warning shots” and “accident”, which the accused had not used in his interviews with gardaí.
“This is a case of murder and not a game of ‘Wordle’, he doesn’t have to use a particular word,” remarked the lawyer.
Counsel said this was an unintended killing and what his client had been trying to achieve in discharging the shots was not to strike Mr Conlon.
He said it was only accidental in the sense that there was some movement of Mr Conlon or the gun that brought the bullet into contact with the deceased.
He said it was quite clear Mr Phelan had not intended to hit Mr Conlon and was stunned when it happened.
He said the location of the injury on the deceased could have occurred if Mr Conlon had been standing in front of the accused without turning his body and simply turning his head.
He said the point of impact could have been caused by Mr Conlon turning his head. He said the medical evidence didn’t prove the prosecution’s case beyond a reasonable doubt and therefore the evidence of the eyewitnesses had to be examined.
Mr Guerin said a “striking feature” of the prosecution case was their contention that Mr Conlon had fully turned around and was running or walking away when the third shot was fired, which he said was not supported by evidence from three of the eyewitnesses.
He said the only witness that supports the prosecution’s account was Ms Felgner, who was at the scene but initially thought Mr Conlon was shot in the chest. “How could she think Mr Conlon was shot in the chest and had also turned his back to Mr Phelan”.
‘Trouble came uninvited to his door’
This was, he said, a dynamic moving situation and it was entirely possible that the deceased had walked upwards into a shot intended to clear his head. “Pointed, aimed and aligned in a way that would have cleared his head had he not moved”.
Counsel said there was no suggestion from the prosecution that the first two shots were fired by Mr Phelan with an intention to kill or cause serious injury.
He said this showed the intention the prosecution contended for did not exist when the first two shots were fired. He invited the jury to conclude that the prosecution had not proved beyond reasonable doubt that Mr Conlon had turned before the third shot was fired.
He said Mr Phelan had retreated, stepped back and walked away from the first encounter with the trespassers in woods on his lands. He said his client’s decision to withdraw from the ravine was in itself “a retreat” and an act of withdrawal.
He said even as the two men advanced and approached the accused had told them to keep their distance. He said the trespassers’ approach to him was ‘completely uninvited’ and all his client did was issue a request to ‘keep your distance’. “All he was asking was that these people for which he wanted nothing to do with would stay away from him”.
He said none of this was the accused’s creation and “everything that came to him that day was uninvited” in the literal and legal sense.
He said the prosecution had suggested that Mr Phelan had enough and was at ‘the end of his tether’, which ignored the fact that the accused was entirely reactive.
“Essentially on 22 February trouble came uninvited to his door, he had to react to that but had seconds to figure out what to do,” he continued.
Defence counsel Mr Guerin will continue giving his closing speech to the jury of nine men and three women tomorrow.
