A MURDER TRIAL jury must consider whether the State has proven it is not reasonably possible that law professor Diarmuid Phelan unintentionally hit a trespasser on his farm with a third shot from his revolver, the presiding judge has charged.

In her charge today, Ms Justice Siobhan Lankford also told the jury that if they found Mr Phelan did intend to kill or seriously injure the trespasser, they must consider the issue of self defence raised by the defendant. 

She told the nine men and three women of the panel that there were three verdicts they could return in relation to the murder charge against Mr Phelan, namely; guilty of murder, not guilty of murder but guilty of manslaughter or not guilty.

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.

Mr Phelan told gardai in his interviews that he became concerned about a dog running loose on his land towards his sheep. When he got a view of the dog, he shot it with his Winchester rifle, whereupon he said three men immediately “exploded” from the woods and began threatening him.

Mr Phelan said he was shaking with fear and had “scrambled” up a bank to get away but when the two men kept coming he believed they were “coming to fulfil the threats they had made”. 

As they got closer, Mr Phelan shouted at two of the unarmed trespassers on his farm to “get back” before he fired three shots from his Smith & Wesson revolver and said he was “stunned when one man went down”. 

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.

Continuing her charge to the jury today, Ms Justice Siobhan Lankford said it was for them to assess whether Mr Phelan had an honest belief that he was threatened by the two trespassers and had to defend himself. She said the jury could assess the way in which Mr Conlon and Mr Coleman had presented to the accused that day. 

The judge said in some circumstances the defence of self defence operates to excuse or justify what would otherwise be an unlawful killing.

She said Mr Phelan’s case is that he did not intend to kill or cause serious injury to Mr Conlon and that the accused has raised the defence of self defence. 

Ms Justice Lankford said there were three verdicts the jury could return in relation to the murder charge against Mr Phelan, namely; guilty of murder, not guilty of murder but guilty of manslaughter or not guilty. 

In the context of murder, the judge said intention means the defendant had as his purpose the infliction of death or serious injury upon another. She said if the prosecution had not proven that Mr Phelan intended to kill or cause serious injury, then the jury must find him not guilty of murder. 

Ms Justice Lankford said the jury must consider carefully what Mr Phelan’s behaviour and surrounding circumstances revealed about his purpose or intention. “In this case you must decide whether the prosecution had proven beyond a reasonable doubt that intention could have been and was formed between the second and third shots,” she said. 

She said the defence case is that it was “the combined effects” of Mr Conlon’s movement uphill, Mr Phelan’s own movement and an unintended deviation in the alignment of the gun as a result of the repeated firing under stress that was capable of explaining why the deceased was unintentionally hit with the third shot. 

The jury, she said, had to ask themselves whether the prosecution had proved that this was not a reasonable possibility. 

The judge said it is the prosecution’s contention the evidence supports the proposition that at the time of the third shot the gun was pointed at Mr Conlon’s head.

The judge said the jury must consider if the prosecution proved the alignment of the gun at the time of the third shot proved an intention on Mr Phelan’s part to kill or cause serious injury. “If a reasonable doubt remains on the issue, you cannot find him guilty of murder”.

If the jury found Mr Phelan did not intend to kill or seriously injure Mr Conlon, they must find him not guilty of murder. 

The judge said if the jury found Mr Phelan did intend to kill or seriously injure him, murder could be made out but they had to go further as this was not the end of the matter because Mr Phelan had raised the issue of self defence. It was up to the prosecution to disprove this.

She said by Mr Phelan raising self-defence he had effectively created another hurdle for the prosecution to overcome if the State was to satisfy the jury of the accused’s guilt. 

An accused was entitled to use force if they had an honest belief it was necessary to protect themselves from attack, said Ms Justice Lankford, but only such force as was reasonable and proportionate to the circumstances. 

“He’s not obliged to wait until he’s assaulted, if he has an honest apprehension that he’s about to be subject to an assault,” she said.

The judge said the jury must look at the decision to use force from the accused’s perspective.

When looking at the issue of whether the force used was reasonable, the jury must consider it from the view of the reasonable person and what he/she did in the circumstances that he/she honestly believed, she added. 

When considering what is reasonable, she told the jury they must bear in mind that when a person is confronted in threatening circumstances he or she may not have time or the ability to measure the response appropriately. 

If the jury considered a reasonable person would have used the degree of force employed by Mr Phelan in the circumstances in which the accused genuinely believed them to be, Mr Phelan was entitled to an acquittal on the basis of self defence. 

If they find the force used was not reasonable but that Mr Phelan had an honest belief that force was necessary, they should return a verdict of not guilty of murder but guilty of manslaughter.

If they were satisfied Mr Phelan was not acting in self defence, that he intended to cause death or serious injury, then the appropriate verdict was guilty of murder.

She said if the jury took the view that there was a reasonable possibility that this was a tragic accident as the defence had suggested then the appropriate verdict was not guilty of murder but guilty of manslaughter. 

She said if the jury believed that the accused had the honest belief in the necessity to use force and that the force used was reasonably necessary in the circumstances as the accused saw it then the appropriate verdict is not guilty. 

To find Mr Phelan guilty of murder, the jury must find the prosecution had proved beyond a reasonable doubt that the conduct of the accused was “objectively dangerous”, not justified by his claim of self defence and that the striking of Mr Conlon by the bullet was not an accident. 

She said the prosecution’s position was that the pointing of the gun in the direction of Mr Conlon to fire warning shots, in circumstances where the accused was unaware of the precise ammunition in it, would amount to a dangerous act.

The judge will continue her charge to the 12 jurors tomorrow.