THE JURY, DIARMUID Phelan’s defence counsel said, had become as familiar with the day of the killing as a Ulysses reader becomes with Bloomsday.
They knew what time the defendant got up, where he went and the intimate details of his working day “almost down to what he had for breakfast”.
This was necessary, Senior Counsel Sean Guerin said, because in order to understand what had happened and why, the jurors needed to consider the defendant’s history and what led him to act and think in the way he did.
The prosecution case had zeroed in on the act of killing on that Dublin mountainside – the four and a half minutes it took for a law professor to shoot a man dead – but this, Guerin said, did not give the jury the detail nor clarity needed.
To truly get to know Diarmuid Phelan, they needed to follow the example of the city’s greatest writer and, as with Leopold Bloom, to walk each step with the defendant: to put themselves in his “heavy boots and work clothes”, to consider his very thoughts.
At Tallaght courthouse in 2017, there was a banging on the glass of the exit door. Diarmuid Phelan turned to look at the three males, one of whom pointed at him while making a gun symbol with his hands. As the trio aggressively jostled for position, the second drew his finger across his throat, while the third clenched his fist and ground his teeth.
Phelan had just given evidence in the District Court against the three defendants over trespassing at Hazelgrove, his 180-acre sheep farm in West Dublin, which he had purchased in 2015. By 2022, the lands, which encompassed the site of an old nine-hole golf course, were worth at least €1.8 million.
In those seven years, gardaí would come to log 39 incidents on Phelan’s lands and attend the farm on between 20 and 30 occasions.
The jurors at his murder trial would come to learn that Diarmuid Phelan was many things; barrister, academic, farmer, father, murder accused. He had also been the victim of repeated crime at his farm.
Incidents recorded at Hazelgrove included burglaries where the clubhouse was ransacked, vehicle thefts, assault, illegal dumping and well-known local criminals spotted acting suspiciously. Phelan had reported constant, aggressive trespassers on his land, who would not disperse when asked and had told him: “We will do whatever the f**k we like.”
Phelan said he had spent €5,000 over the years clearing dumping, with litter including bottles, tampons, condoms and socks left on the grass ending up crushed into feed meant for animals. Phelan told gardaí he had been attacked several times and that his family were afraid.
The clubhouse was the focus of repeated attacks, having been damaged by fire three times including one blaze on 13 March 2016 in which extensive damage was done. The jury at Phelan’s trial were shown comparator photos of the golf club before and after the fire, which also damaged services linked to the building including electricity, water and sewage supplies as well as CCTV equipment.
The outbuildings on the land had become “almost like a magnet to young people locally”, whom the trial heard were hanging around drinking and lighting fires.
On 1 June 2016 Diarmuid Phelan found drug paraphernalia in one of the outbuildings. When he confronted a group of six trespassers over the find, he was abused, threatened, shouted at and “stoned”.
Fleeing the rocks being thrown at him, Phelan retreated to his jeep and videoed the attack on his phone. One of the trespassers approached the jeep and started shouting and threatening him, while €500 worth of damage was done to the vehicle.
In an email to gardaí, Phelan said he believed if a prosecution was pursued over the incident, it would help prevent further attacks on his farm.
Four of the intruders were identified and summoned to appear before Tallaght District Court in 2017, where three were convicted of trespassing and criminal damage. It was after that court case that the group of three had made the threatening gestures to him.
Phelan had called out to the judge and said he was too afraid to leave the court. The judge reconvened the court, when the group’s legal representatives were told their clients must not interfere with Phelan.
Phelan, the Central Criminal Court would later hear, was “terrified” by the three males, who were 17, 18 and 19 years of age at the time. The case was adjourned to the following week but Phelan told the prosecuting garda he was too afraid to return to court and also feared that the group would come to his farm to attack and shoot him.
In a statement, Phelan said if these men were comfortable enough to threaten him in court in front of a judge and garda “it was not hard to imagine what they were capable of doing outside court”.
The three were later prosecuted for intimidating a witness but pleaded not guilty to the charges, with the case coming on for trial at the Circuit Court on two separate occasions.
However, in the run-up to the third trial date, the prosecution was approached in relation to a plea deal, where the defendants would admit to a lesser public order offence of breaching the peace using threatening abusive or insulting behaviour.
One of the three defendants served a custodial sentence and the two other men received suspended sentences.
Phelan, his trial heard, had agreed to the plea deal as he didn’t want any further acrimony or difficulty in his life.
The trial also heard that the deceased Keith Conlon and his fellow trespasser Robin Duggan had lived “a ten-minute walk” from the group who had threatened Phelan.
On the afternoon of 22 February 2022, a dog was heard barking on Phelan’s land.
Diarmuid Phelan told gardaí he had grown concerned that a dog could be running loose on his land in the direction of his sheep.
It was lambing season, with both ewes and cattle in the process of giving birth. The agricultural workers at Hazelgrove – known as “WWoofers” as they offered their labour in exchange for board and lodging through a “Worldwide Opportunities on Organic Farms” programme – knew to check the lambs every morning to ensure none had been killed overnight by foxes or dogs.
As Phelan was due to lecture in Trinity College that afternoon, he decided to investigate where the barking was coming from as he felt it “couldn’t be left over”. Taking up his camouflaged Winchester hunting rifle, Phelan, sheepdog Tal and WWoofer Julian Roudaut went toward the barking, which had come from a wooded area on the farm.
In the woods, three trespassers had spent an hour that day digging a four-foot hole in the wet and heavy February earth. They were there for badger baiting; an illegal bloodsport where a small electronically tagged dog is sent down into the sett to trap its quarry before a larger dog, such as the lurcher the men had with them, would savage the protected animal when it was unearthed.
Phelan did not give evidence at his trial, as was his right, but the jury heard his account of what happened next through his garda interviews.
He told gardaí that he had called out twice when he got to a river that runs through the woods but there was no reply. He then saw a dog “apparently alone and loose” and shot at it, having failed to see the animal was actually tied by a lead to a tree.
“To me he wasn’t visibly tied up,” he said, adding that he had a “split second” to make up his mind to shoot the dog.
Phelan said the dog had been “going towards the sheep”, adding: “the minute I saw it I shot at it.” Mr Phelan said the dog was partially obscured and he believed it was a risk to his sheep. “If there was no threat, I certainly would not have shot it,” he told detectives.
Phelan told detectives that three men, some in camouflage clothing, “exploded” out of the bushes and began “screaming and roaring” at him from his position around 15 metres away.
“They were effectively threatening about who shot the dog… something about a claim and about getting me,” he continued.
“Someone said it was not my land, which I said it was,” he told officers.
The accused told detectives that when the three men “started talking about getting me, someone started taking a photo of me”.
He said he had tried to get out of there “as fast as possible”. He said he was “very scared”, that his hands were shaking and he couldn’t get back up the bank.
Phelan said he had an impression that the men sensed his fear but that he couldn’t locate his phone in his pocket. He asked his farmhand to call the gardaí.
The accused said he told gardaí it was urgent and he “couldn’t handle it”.
Phelan headed for the bunker area where the other farm hands had gathered but was followed by Conlon and another trespasser Kallum Coleman, who the defendant said were shouting about calling the gardaí and having Phelan charged with shooting the dog.
Phelan grabbed Roudaut’s phone and called 999, shouting at the two trespassers that he was on the phone to gardaí. Conlon had also taken out his phone and said he was also going to call the guards.
Keith Conlon had pointed his phone down the embankment and recorded a short video of the encounter between himself and the accused. Conlon told Phelan: “You’re f**ked now”, adding: “this is not the end of it mate, I’m telling you, you shot the f**king dog for nothing”.
On the 999 call made on Roudaut’s phone, which was played to the jury, Phelan told the dispatcher he had “intruders on the farm”.
“There was a loose dog, we didn’t know they were there, we shot the dog and now they’re very agitated… They’re hiding in the woods and they’re roaring and shouting. We’re sheep farmers,” said Phelan.
The defendant identified himself to the dispatcher and said they had “a violent situation here, we need urgent help”.
Asked how many there were, Phelan could be heard raising his voice as he exclaimed: “We saw three…..” Just over two minutes into the call, Phelan says: “They are coming out here now, they’re coming out here now”.
Phelan could be heard shouting at the two men that “the guards are coming now…. you can talk to them”.
The landowner entreated the men to “just keep your distance please… to get back… go back down”.
Phelan told detectives that he retreated up a bank but was alerted to “the Travellers” coming towards them. (He also referred to Travellers while on the phone to the 999 dispatchers. The deceased and the other trespassers were not Travellers.)
“I shouted at them to stay back, they kept coming… I couldn’t go backwards so I went forward to them to get them back,” he continued.
Phelan said he was “terrified” at this stage and the man had seen it.
“They came up onto the bank so I had to come forward and tried to stop them to get away at a safe distance… They saw me and then came on again,” he said.
He added: “They were coming to fulfil the threats they had made. The lead man had something towards the front of his camouflage jacket. I couldn’t tell you what it was. I want to stress that I was terrified”.
Phelan said he reached for a revolver he had in his pocket and shot in the air. He could not tell gardaí whether he had discharged two or three shots.
“My memory is the arc over their heads from left to right, from what I remember is I shot left in the air towards the right over their heads in this sort of direction,” said Phelan.
The third shot hit Conlon, who instantly fell face first into the area where the old bunker from the golf course was.
The defendant said he was “stunned when one man went down”. “I thought he was up to something, he seemed to go down slowly. The other man then ran.”
He said “the poor man was in a bad way and really needed urgent help”. “It wasn’t like I aimed at the man and shot him. I told them I was scared sh**less”.
Phelan told gardaí in his interviews that at first he didn’t know what had happened but then he saw the man looked “genuinely injured”. Phelan approached Conlon and said: “Don’t attack me, I’m going to try to help you” before shouting for someone to call an ambulance.
The farmer took a buggy, driving first to the entrance gate where he instructed two repairmen to open it for the ambulance. He then reversed the buggy up the driveway to get some First Aid items from the farmhouse.
As Phelan was doing this, the third trespasser Robin Duggan, who hadn’t accompanied his two friends out of the woods, called 999.
“A farmer has after shooting me friend at point blank,” said Duggan. “He is on the deck in the middle of the field, you have to get an ambulance… I’m at the golf course, Hazelgrove Golf Course”.
Garda Kevin Curran, the first garda at the scene, said that when the patrol car went through the entrance gate of the farm they encountered Phelan driving a red Hilux jeep coming down a laneway at speed against them.
Phelan had a First Aid bag over his shoulder and told Garda Curran that a man had been shot, that he was at the end of a hill and needed help. The garda followed Phelan down the field in the direction of where the injured man was lying. Three of the farmhands were sitting on a bank in a distressed state.
Garda Curran observed Conlon lying on his back with his eyes rolling and saliva coming from his mouth.
It was not until he and Phelan turned the injured man on his side that they observed a gunshot wound to the back of the head. They began to put powder from the First Aid bag onto Conlon’s head to stop the bleeding.
The garda asked Phelan who had shot Conlon and the defendant replied “I did”.
At this point, Garda Curran asked Phelan to step back from the injured man. When asked where the gun was, Phelan replied “I have it here” before pulling a small black revolver from his jacket pocket and throwing it to the side.
First responders found Conlon in a critical condition, but he was still breathing and had a pulse. The paramedics had to cut his clothes off to fit defibrillator pads to his chest and found the patient was unable to answer any of their questions.
When Sergeant Simon Whelan joined his colleagues in the field, he observed the black revolver located about a metre away from the injured man on the ground and made it safe. The gun had an eight-shot cylinder with eight rounds loaded into it. Three of the rounds had strike marks, indicating they had been shot.
Projectiles were still in the other five remaining hollow-point rounds, which were designed for more controlled penetration and cause greater damage than normal pointed ammunition.
The sergeant tried to determine how many times Conlon had been shot, as three rounds were discharged but paramedics could only see one bullet wound. Phelan told the officer the three spent rounds in the revolver which had been fired at Conlon were “possibly crow-shot” for shooting birds and rats.
When Sergeant Whelan told the defendant it was unusual to have two different types of ammunition in a gun, he said Phelan went silent and didn’t answer.
By this time, Coleman and Duggan were at the main gate to the farm, where they told gardaí the dog had been shot. Coleman said they had confronted the farmer, who told them he hadn’t seen them in the woods.
He said Phelan had shouted at them “to get back” and had “let off shots as he turned”.
Phelan was standing alone on the incline when Detective Sergeant Michael McGrath arrived at the scene. When asked what had happened, Phelan replied: “I shot him.”
Detective Sergeant McGrath immediately cautioned the defendant, observing blood on his hands as he did so. He arrested Phelan at 1.45pm for possession of a firearm with intent to endanger others and the defendant was placed in a patrol car, which brought him to Tallaght Garda Station.
As he was being conveyed to the station, Phelan asked the detective whether he could wash his hands. It was explained that he wouldn’t be able to do so until DNA swabs were taken to determine whether any firearm residue was on his hands.
Phelan enquired about the wellbeing of Conlon in the patrol car and whether the injured man was a Traveller. Phelan had never met Conlon before.
The detective didn’t answer Phelan either way and told him Conlon was being treated by paramedics.
In his garda interviews, Phelan would deny that he had overreacted by shooting the dog.
Gardaí put it to the accused that Conlon had done nothing to him.
“That is not the reality of it, they effectively told me to get the f**k out of the wood and chased me up. I was petrified,” the accused replied.
Phelan said he had to react as he was in fear for his life and with good reason.
Asked whether he thought they were going to kill him, the accused said he believed the men were going “to beat me stupid at least”. “At that moment I believed they were going to do whatever they wanted to do,” he continued.
“Listen I’m not going to die up there to prove I was under threat,” he told detectives.
It was put to Phelan that he – and not the men – was out of control by virtue of having shot their dog and that he was the aggressor. The accused replied: “That is completely perverse”.
He said he had shot in the air, he was not thinking about each shot and it was all very fast. “When you fired the first shot were you looking at the two men?” asked the gardaí. “The way you putting it, it was an aimed shot, that is nonsense.”
Phelan told gardai it was “racist and disgraceful” to suggest that he saw himself “as a cut above people that come onto the land with dogs” and that he had tried to teach them a lesson.
Gardaí put it to Phelan that he didn’t have a scratch on him but Keith Conlon is dead.
“Is it a case of ‘shoot first, ask questions later’?” asked gardai, to which Phelan replied: “It certainly is not the case, but you have obviously made up your minds”.
Phelan said one of the last times he had called gardaí it took three hours for a squad car to arrive, telling them: “So I’m alone effectively up there.”
At one point, the defendant asked how Conlon was and was told he was critical. “Oh Jesus, no,” he replied.
Phelan called what had happened “a nightmare”. “There was no other option or I would have gone down. I could see in his eyes he saw he was in.”
He said he hadn’t aimed the revolver and had just shot it in the air “to get them back”.
I must have shot three times. I just can’t believe the man went down.
When Phelan was told that Conlon had died, he said it was “tragic” and that he had tried to save his life.
I was beside him in the field, it’s awful news.
Conlon was declared dead at 3.15pm at Tallaght Hospital on 24 February. He had sustained a single gunshot wound to the back of the head – the bullet went through the brain but did not exit the skull.
Phelan was charged with the murder of Conlon on 25 February 2022, to which he made no reply.
Eight months later in October 2022, Phelan presented himself at a garda station, where he handed in a voluntary and prepared statement. In it he said there had been attempted burglary at his farm, that his sheds had been used as “drug dens”, that there had been masked and armed men near his farmhouse at night and that buildings had been burnt down. He also said that threats were made “within the courtroom” to kill and injure him.
Phelan indicated he was not sure when he had last reloaded the handgun and that he was not 100% sure with what he had reloaded it with. He said he had voluntarily given the revolver to gardaí so they knew what was in it.
French national Pierre Godreu, who came to work on Phelan’s farm in January 2022, was the first of the WWoofers to give evidence at the trial – via video-link from Brussels through a translator.
The 26-year-old had spent the morning of 22 February cutting the grass with a petrol strimmer, which he said was quite loud. At one point, Godreu saw two of the female agricultural workers looking panicked so he took off his ear protectors and heard two people fighting.
In his evidence to the court, he said “two strangers” wearing hunting clothes were “orally fighting” with Phelan as he walked up the field with his colleague Julian Roudaut.
He said Phelan had looked anything “from edgy to annoyed” when he was walking away from the wooded area on his lands.
Phelan, he said, was telling the two men “go, go, get out, get out” but he said the two strangers were “really angry” and refused to leave the farm, following the defendant up the bank.
He said the two men refused to stay away from Phelan or keep their distance.
Godreu said Phelan had taken a pistol from his pocket as the men kept advancing and shot it twice in the air before discharging the third shot “towards” one of the strangers, who fell on the ground.
Godreu thought the intruder had “mimicked” falling down. He said the three shots were fired immediately after each other and the second trespasser had ran away.
He said the farmhands were shocked and didn’t move but Phelan had immediately gone over to the injured man to see whether he was hurt.
Godreu had told gardaí that Phelan was very protective of his property, that he had put CCTV and barbed wire on the lands and hadn’t wanted his employees talking about the farm to other people.
Under cross-examination, the farmhand was interpreted as having told defence counsel, Michael Bowman SC, that Phelan looked “really pissed off” when he was walking away from a wooded area on his lands, followed by two angry men who were arguing with him.
The trial was subsequently delayed after defence counsel raised an issue with this translation.
Ms Justice Siobhan Lankford told the jurors the word “énervé” had been used by Godreu to describe Mr Phelan’s countenance or expression when he came out of the woods, which the interpreter had translated as “pissed off”.
The judge said that the translation was “a slang” or a “somewhat vulgar translation” and the word “énervé” did not carry that connotation. “The tone being used did not convey something in slang,” she added.
Ms Justice Lankford also pointed out that when the word “énervé” was used by Godreu there was “no intensifier”. “There was no ‘very’ or ‘really’; it was simply the word “énervé”,” she explained.
Lastly, the judge said the word “énervé” has a range of meanings from “edgy to annoyed”.
Farmhand Hannah Felgner gave evidence that Phelan had acted in a “kind of threatening” manner, in what she characterised as an initially “purely verbal conflict”.
Felgner, a young German medical student who came to Ireland to learn English, had arrived at Phelan’s farm just two days prior to the fatal shooting.
On the morning of 22 February, she saw Phelan and her co-worker Roudaut walk in the direction of the barking.
Suddenly, Felgner said she heard a gunshot and then loud voices; “men kind of screaming and yelling, sounding very angry and upset”.
She said Phelan and Roudaut emerged from the bushes followed shortly afterwards by two men, who were threatening to call the police and saying they would get the defendant “charged” for killing their dog and wanted to know why he had done this.
Felgner said she heard Phelan calmly repeating: “Go ahead, call the police, just keep your distance.”
She said the men kept walking towards the defendant and were yelling at him.
Felgner said she didn’t feel threatened. She characterised the argument as “a purely verbal conflict” and said the men were “yelling at Diarmuid”.
She said the men kept walking towards the defendant and, when they were about two meters away, “out of nowhere” Phelan pulled out a small gun and shot into the air, screaming very loudly, “keep your distance”.
Felgner said Phelan’s tone had changed suddenly, that he had screamed very aggressively and loudly as he shot into the air, describing him as “kind of threatening”.
She said when Phelan fired a shot in the air, the two men “immediately, in that very second, turned around and started running away”.
The witness said a few seconds after that Phelan “shot one of the guys into the back”, while the other man kept running away. The injured man fell “straight forward, face first” into the bunker.
Felgner thought it wasn’t real, that the gun was a fake and that the man was “faking” when he fell.
She and her co-workers got on the ground as they were fearful of more shots being fired.
It was only when Felgner walked into the bunker a few seconds later that she realised it was a real gun as she saw blood coming from the back of the man’s head.
In her evidence, Felgner said she doubted she would “ever find the words to describe the terror” she felt when she saw Phelan shoot the man.
“There was a lot of fear, it’s not an everyday situation.
I was fearful and probably stressed and very overwhelmed.”
The witness told defence counsel under cross-examination that the two intruders didn’t seem a danger to any people there and didn’t seem any danger to her.
However, she agreed with defence counsel that the two men were “determined to get to” Phelan and, after he fired the first shot, the intruders were within two metres of him yet still “advancing” in a “determined way towards” the accused man.
Felgner said Phelan had fired the gunshots “out of nowhere” and it came as a “complete surprise to her”. She described the discharging of the three shots as “unexpected and unpredictable”.
The witness denied being mistaken in her recollection of seeing the two men running away when the third, fatal shot was fired.
At 48 years old Alexandra Fernandes, another French national, was the oldest of the farm workers to give evidence. She had come to work on Phelan’s farm in early February 2022 in exchange for food and board, with her duties including feeding the animals and cutting bushes.
She told the trial she was also using a strimmer that day when she removed her headphones to hear men’s voices shouting and arguing behind her.
Having seen Phelan and Roudaut enter the woods a few minutes prior to this, Fernandes was curious to see what was happening and went down the field.
She encountered the defendant coming out of the bushes and he told her to take Tal the sheepdog, who was on a lead. Phelan seemed normal but Roudaut looked preoccupied, she said.
A few minutes later she saw two men who were arguing with the defendant come towards them. She saw “wet” around the first man’s eyes and thought he was crying.
The first man, she said, knew where he wanted to go and was speaking loudly at Phelan, who was saying: “Go, Go”.
Fernandes kept looking at the first man’s hands as she was afraid he was going to “take something to avenge on Tal”.
Fernandes then heard a noise and saw Phelan with his arm in the air holding a gun. She said the first man was maybe five or six meters from the defendant when she heard the first bang.
The witness heard a second bang but didn’t turn her head towards Phelan “because I knew what it was”.
She said the defendant fired a third gunshot from his revolver “at the same time” as the two trespassers were “turning to go”.
She saw blood on the back of the first man’s head when he went past her and fell face first into the bunker.
Fernandes told defence counsel she was “frozen to the spot” and “afraid” when she saw the two intruders “determinedly” walking up the field in the direction of her employer.
24-year-old French agricultural worker Julien Roudaut was the fourth and final farmhand to give evidence. He told the trial that he came to Ireland in 2021 to learn English and travel. Roudaut said he slept in his car for a week when he initially came to Ireland but needed to find shelter so he made contact with Phelan through the website Wwoof.ie.
Roudaut said he was cutting bushes around midday when he heard a dog barking in the wooded area of the farm. He, Phelan and the sheepdog Tal then went into the wooded area to investigate where the noise was coming from and had crossed a river.
The eye witness was behind Phelan when he heard him fire one shot from his rifle but he didn’t see what the defendant was shooting at.
The witness said a man appeared from the direction in which Phelan had shot and a “quite rough” argument ensued between the pair.
Roudaut told the trial that he felt stressed and under pressure. He believed the man who had appeared had something black in his hand but that he hadn’t done anything with it.
When Roudaut and Phelan came out of the woods, the men followed in their direction. The witness recalled Phelan asking the men to keep their distance but said the two men kept on walking towards the defendant.
Roudaut said there were gunshots and he saw the first man fall. He said the man had turned his back to Phelan after the first or second gunshot.
He said Phelan had a little black gun in his hand and the shots were fired towards the sky. He added: “It’s really confusing, I don’t have a lot of memory of the direction of the shots”.
The eye witness said Phelan fired the first or second shot from his revolver “towards the man but in the air”. He repeated that he remembered the man turning his back to Phelan after the first or second shot.
He said Phelan was “panicked” after the shooting and had said “oh s**t” when he went to assist the injured man on the ground. The witness said the man who fell had blood on the back of his head and Phelan had put white powder on it.
Roudaut agreed in cross examination that it looked to him like Phelan was firing warning shots and it was “difficult to believe the man was shot”.
He had also agreed he had heard the dog barking for some time before he and Phelan went into a wooded area to investigate, and that the decision was not an immediate reaction.
When asked under cross-examination what the black object he believed the man had in his hand was, Roudaut said a gun.
However, when re-examined by prosecution counsel, Roudaut said his first impression was that the object was a gun but he now thought the man had a phone in his hand.
He agreed with the defence that Phelan looked both shocked and surprised that the man had been hit. Roudaut said he was equally surprised that the man had been hit by the shot as it looked like the defendant was firing warning shots.
At trial, it was the State’s case that when the third shot was fired by Diarmuid Phelan, the gun was pointed in the direction of Keith Conlon, who was shot in the back of the head when he had turned away to leave.
It was in those circumstances, the prosecution argued, that the accused intended to kill or cause serious injury to Conlon.
It was the defence’s position that the three shots fired were warning shots and never intended to strike the trespassers. They argued 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 Phelan were “a legitimate use of force in self defence”, which defeated the existence of intention.
When addressing the jury on the demeanour of the trespassers as they advanced on Diarmuid Phelan, defence counsel Sean Guerin contended that the prosecution had laid enormous emphasis on the argument between the accused and the trespassers being “all verbal” before Phelan produced his gun.
However he asked the jurors to remember their Hamlet, and to accept that “one may smile, and smile, and be a villain”.
“Talking is the same: you can talk and talk until you get close enough to hit someone,” he told the panel.
The jury may also have been reminded that, like the ghost of Hamlet’s father, the deceased was not totally silent on the matters which led to his death.
The trial heard that after he had been shot, Keith Conlon turned over onto his back. While his eyes were still open and he was still conscious, he did not speak initially but held out his phone in what witness Hannah Felgner presumed was a plea to call an ambulance.
She told the jury that she took out her own phone and dialled 999, telling the dispatcher: “I’m sorry, someone shot a man, the farmer of the farm”.
The jury listened to the audio of the dramatic telephone call, hearing how when asked what had happened by the operator, Felgner relied: “They were approaching… the farmer shout at them to get back. He said keep their distance but they didn’t”.
Felgner said she was living with the farmer and didn’t know he would do that.
The medical student was told by the dispatcher to “get beside the patient” and an injured Conlon can be heard coming on the call, saying: “I’m 35, I got shot at”.
As the recording was played, some members of Conlon’s family left the courtroom in tears.
During the call, which lasts more than nine minutes, the operator can be heard giving Felgner advice on how to administer first aid.
The operator asked “whereabouts is he shot”, to which Felgner replied “not in head, in chest”. When asked whether there is more than one wound, Felgner said “no”.
The operator told her: “Make sure he is lying down and what I need you to do is get a clean, dry towel and press firmly on the gunshot wound”. Felgner can be heard shouting “keep him lying down”.
When told to “apply firm pressure”, Felgner replies: “We’re trying to.”
She tells the operator that the injured man is awake and the witness be heard saying “keep still OK, don’t move, it’s bad for you”.
Another man comes on the phone and says: “He is lying on the ground here, it looks like he is having a fit”.
Asked by the operator whether there is any obvious gunshot wound to the man, the other man says: “There is blood on him but I can’t see where he was shot.”
There was less than a minute between the end of Phelan’s 999 call and that of Felgner’s.
The jury was also given considerable background evidence on Conlon.
On 26 January 2010, three garda vehicles were dispatched to Sandyford in south County Dublin in response to a suspected burglary. Following a chase through the back gardens of a housing estate, Garda Ken McDonnell arrested Keith Conlon.
The trial heard that during the arrest, Conlon became “extremely violent”, kicked Garda McDonnell in the head and had to be restrained. He later tried to jump from the back of a patrol car.
Conlon subsequently pleaded guilty to burglary and assault at the lower level Dun Laoghaire District Court, where he received a 12-month probation order.
The jury were also told that the offence was some 12 years before the fatal shooting on the farm and that Conlon was 23 years old at the time.
Key prosecution witness Kallum Coleman, who had been due to give evidence on October 30, booked himself a one-way ticket to Spain instead.
A bench warrant was issued by the trial judge for Coleman’s arrest. When it came to light that he was “holing up” in a hotel in Spain, gardai flew to Marbella and explained the consequences of the bench warrant to him.
Coleman initially agreed to return to Ireland to give evidence but a garda told the trial that the witness had “a change of heart” and “legged it” whilst gardai stopped to get refreshments en route to a Spanish airport on 5 November.
Evidence was given during the trial that Coleman had been stopped and searched by gardai on multiple occasions. On more than 20 occasions, it was recorded by gardaí that Coleman had associated with people that are connected to organised crime.
However, it was also said that Coleman is not a member of an organised crime group, has no convictions for being a member of an organised crime group and that a lot of his connections are with people he grew up with in Drimnagh, to the southwest of Dublin city.
The jury were told that the third trespasser, Robin Duggan, declined to provide a statement to gardaí as he was concerned he would be viewed as “a rat”.
During the trial, there was much focus on the type of ammunition Phelan had loaded into his Smith & Wesson revolver.
Asked by gardaí in interview what had been in the revolver, the accused said it was loaded with “shot shell or birdshell” and also bullets. “Tragically it looks like two birdshot and one bullet,” he added.
He said the revolver would normally be loaded with three birdshot rounds for pest control around the farmyard and five bullets for other purposes.
Asked how he knew what ammunition would come out of the barrel if there is a combination of different ammunition, the accused said it revolves in sequence.
He said he thought the first three bullets were birdshot. “I must be wrong in that I can’t be 100%”. He said he had a mixture of ammunition in the barrel on purpose.
In his evidence, ballistics expert Detective Garda Seamus O’Donnell said the revolver used by Phelan had eight chambers in its cylinder and the bullets recovered from it were five “live” rounds and three discharged cartridge cases. He could not say whether two of the discharged cartridges within the revolver were hollow pointed or pest shot bullets as they had the same cartridge cases.
Detective Garda O’Donnell said he examined the scene and found no other cartridges or evidence of bullet strikes. “It’s very difficult to locate bullets in open ground,” he added.
He said the practice of mixing different types of ammunition in a revolver is “extremely dangerous” and “is never considered a good idea for the simple reason you might make mistakes with types of ammunition, it is never recommended”.
The witness also said there are “inherent dangers” when firing a warning shot from a firearm, as there is always a danger the bullet will travel and hit someone.
He said it was stated in the Smith & Wesson safety instructional manual not to mix ammunition.
However, under cross-examination Detective Garda O’Donnell said he was unaware that Smith & Wesson published in their manual an image showing people putting both shot shells and bullets in the revolver.
Guerin put it to Detective Garda O’Donnell that the jury may think it’s a “remarkable thing” for a farmer to have a handgun, but this isn’t necessarily the case. The detective said there are thousands of long-arm licence holders across the country, with the majority having rifles and shotguns, while some have handguns.
The expert also agreed that factors on the day of the shooting, such as the farm terrain, the movement of the trespasser and the accused’s state of mind, would negatively affect the ability to aim and control a firearm.
During Detective Garda O’Donnell’s testimony, the jurors were allowed to hold and pull the trigger of the revolver with which Phelan fatally shot Conlon in the back of the head.
The prosecution invited the 12 individual members of the jury to hold the Smith & Wesson handgun within the jury box and pull the trigger to get a sense of the five kilos of pressure required.
The presiding judge declined to pull the trigger of the revolver, saying: “I think I’ll pass on that”.
The exercise was not mandatory but the prosecution said it would give the jurors an idea of the pull pressure required. Eight of the 12 jurors opted to pull the trigger of the revolver.
The trial also heard that Phelan had taken part in pistol competitions between 2011 and 2013, winning bronze in three as well as a gold medal in rifle discipline.
However, Nigel Barrett, secretary of the National Association of Sporting Rifle and Pistol Clubs (NASRPC) agreed under cross-examination that the defendant was in the beginners category of competitors and had achieved “a somewhat pedestrian score”, when he came third in a five-shot or small bore pistol competition.
Curtis Marshall, a firearms expert and former special agent with the US Department of Justice, was the first defence expert called to give evidence about the Smith & Wesson revolver used in the fatal shooting at Phelan’s farm.
Marshall said the speed of shooting had consequences for accuracy when multiple rounds were discharged, telling the jury that three shots could be fired in the space of half a second.
Marshall said in stress situations, the heart rate goes up and a shooter loses some fine motor skills and cognitive abilities. People under stress tended to “jerk the trigger” and the ability to hold the grip consistently was affected, he said.
He said Phelan could have fired all three shots as quickly as Conlon turned, adding that people “shoot faster than they can observe changes in their environment and make decisions”.
Marshall agreed it is a “cardinal rule” that you never point a gun at anyone or anything unless you are prepared to shoot it.
Asked by the prosecution why law enforcement officers would not fire warning shots, the witness said there was always a risk that if you were firing a shot to warn one person, the bullet could land somewhere else and cause “additional harm”.
The second expert witness for the defence, behavioural scientist Dr William Lewinski, told the trial that Phelan’s decision to fire warning shots at a trespasser on his farm was a reasonable response “given the perception of an imminent threat and the short time available for decision making”.
The psychologist also said the “dynamics of firearm use” supported the proposition that the intentional firing by the defendant of his revolver over the heads of the intruders who were “perceived as a threat” had caused an “unintentional strike” on one of them.
During the trial, the jury viewed “upsetting and difficult” animal attack videos taken from Conlon’s phone, which they also heard had stored footage of dogs being “trained” to attack a live kitten.
In the video clips, the lurcher dog shot by Phelan is seen fighting over a live squirrel, mauling a badger and shaking a dead fox between its teeth.
A garda detective said “the activity” in the videos was conducted “with considerable good humour, laughter and there is enjoyment to be had” by those present.
One of the videos had appeared in two WhatsApp chats on Conlon’s phone and it showed Coleman holding up a dead fox in his right hand and his dog Vin on a lead in his left.
Another video taken on Conlon’s phone depicted a male with four dogs including Vin, two of whom are attacking a squirrel which is squealing. “I suggest that Vin and the other dog are in a sense fighting over the squirrel and both have their teeth sunk into the squirrel and trying to pull away from the other dog,” said defence counsel.
Describing a video which was not shown to the jury, Guerin said a cage was placed in the cargo hold of the back of a van and the video is viewed through the rear open door of the vehicle.
He said when the video begins the cage contains a kitten and a small dog, which is a pup. A number of male voices can be heard encouraging the pup to attack the kitten and the pup makes a number of efforts to do this. “But it is repelled by the kitten and the pup appears to lose interest”.
Guerin said when the pup is released from the cage by one of the men, a bull terrier dog is introduced to the cage. The second dog enters the cage and is again encouraged to attack the kitten by numerous male voices.
“The older and bigger dog attacks the kitten and as it is doing so it is encouraged by male voices to continue the attack. As that is happening the pup is reintroduced to the cage and the pup is encouraged to participate in the attack by the bigger dog and it does that,” he continued.
Guerin said the larger dog seized the kitten with his jaws and mauled it. He said the pup appears to be encouraged enough in the attack to join the older dog.
In her closing speech, prosecution counsel Roisin Lacey asked the jury to consider whether Phelan had lost his temper and overreacted when he pulled a revolver from his pocket and fired it at Conlon, having “reached the end of his tether” due to repeated criminal acts on his property.
The prosecutor told the jury that Conlon was not on trial for his criminal behaviour for badger baiting or for the morality of bolting foxes or blooding dogs.
She said the evidence was that Phelan knew “full well” neither of the trespassers had weapons and there was nothing in his 999 call to indicate that he thought they did.
The jury could ask themselves, she said, if Phelan was someone who “jumps to conclusions”, has “knee jerk reactions” and responds to take lethal action “very quickly; perhaps too quickly”.
Ms Lacey asked in her closing address how Phelan had “made the leap” from what the State argued was a “purely verbal” conflict to a position where he felt the only option was to produce a lethal weapon and point it in the direction of a trespasser on his farm.
“At the very least the action was a disproportionate and excessive response in relation to what was facing him,” she added.
Ms Lacey said the pathologist had testified that the gunshot wound was to the back of Keith Conlon’s head and that farmhand Hannah Felgner was emphatic that the turn by the two trespassers had happened before the third, fatal shot.
Prosecution counsel said the evidence did not support Phelan’s claim that he was afraid of being “beaten to a pulp” and reminded the jury that neither Conlon nor his companions had any weapons.
The defence, however, asked the jury to acquit Phelan, submitting in their closing address that trouble came “uninvited” to his door and that none of what occurred was his creation.
In his closing speech, defence counsel Mr Sean Guerin SC told the jurors: “This case is all about emotion, two emotions in particular, it’s about fear and anger.”
He said the prosecution case is that Phelan was angry when he shot 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.
Counsel said the killing of trespasser Conlon was “a tragedy and a grievous waste of human life” but it did not happen because of any crime committed by Phelan.
Mr Guerin said his client 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.
The lawyer submitted that a person can use reasonable force to defend themselves and doesn’t have to “take the beating coming”. Mr Guerin told the jury: “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”.
After hearing 10 weeks of evidence and spending just under seven hours over two days considering their verdict, the jury unanimously rejected the prosecution case and instead agreed with defence counsel that Phelan was entitled to defend himself when he came under threat on his own land.
On a dark New Year’s evening, almost three years after the death of Keith Conlon, Diarmuid Phelan walked from the Criminal Courts of Justice a free man.
Members of Keith Conlon’s family quickly left the courtroom as soon as the not guilty verdict was announced. In a statement issued afterwards, they asked for privacy and said they were hurt and disappointed by the verdict.
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