From the Rising to the Setting of the Sun
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, Mr 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.
“We will do whatever the f**k we like.”
At Tallaght courthouse, 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.
Mr 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, gardai would come to log 39 incidents on Mr 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. Mr 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.”
Mr 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. Mr Phelan told gardai 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 March 13, 2016 in which extensive damage was done. The jury at Mr 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.
Michael Bowman SC, defending, commented that the clubhouse had been “destroyed effectively; burned to a cinder”.
Three days later criminal damage was carried out on “the golf cottage”, where all the windows were smashed to the cost of €2,000.
There were two further incidents of arson on the clubhouse in May and July 2016, with €10,000 worth of damage done in the third attack. Mr Phelan had been seeking to let out the clubhouse before it was burnt down for an annual rent of €18,000.
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 June 1, 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, Mr 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 gardai, Mr 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 Mr Phelan.
Mr 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 Mr Phelan.
Mr 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 Mr 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.
The defendants were well known to gardai and had convictions of a significant nature including burglary and assault. One of the six initial trespassers was also murdered in January 2017 but no prosecution ever ensued as there was insufficient evidence for a charge.
In a statement, Mr 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.
Mr 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 both Keith Conlon and his fellow trespasser Robin Duggan had lived just “a ten minute walk” from the group who had threatened Mr Phelan.
Bloodsport
As the trespassers advanced, Alexandra Fernandes looked down across the west Dublin farmlands before her and was struck by a curious portent: a rainbow spread across the still-winter sky.
After telling her fellow farmhand Julien Roudaut to make a wish, she said his answer had astonished her.
“I just want to stay alive for today,” Julien had told her.
“Me too,” Alexandra had replied.
The two witnesses in the trial of Diarmuid Phlean were to have their wish, but death did visit another that day. Within minutes of their sighting, Keith Conlon would be lying in an old golf course bunker, his eyes rolling in his head, his mouth foaming pink having been shot in the head.
As well as the myriad instances of criminal damage and trespass at Hazelgrove Farm, in 2020 there had been a dog attack on Mr Phelan’s sheep, with three animals lost and two injured.
On the afternoon of February 24, 2022 the mood on the farm had been “relaxed”, until a dog was heard barking in the distance. Mr Phelan’s sheepdog Tal, who was tied to a leash, became nervous and unsettled.
Diarmuid Phelan told gardai 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 Mr 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, Mr Phelan, 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.
The intruders had no permission to be on Mr Phelan’s land.
Mr Phelan did not give evidence at his trial, as was his right, but the jury heard of his account of what happened next through his garda interviews.
Mr Phelan told gardai 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.
Mr 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.
The last thing he wanted to do, he said, was to kill a “Traveller’s dog”. He disagreed that the dog was not a threat. “I had a different view, I was really concerned about the lambs.”
The instant he shot the animal, Mr 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 meters 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.
Mr 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 gardai.
The accused said he told gardai it was urgent and he “couldn’t handle it”.
Mr Phelan headed for the bunker area where the other farm hands had gathered but was quickly followed by Mr Conlon and Kallum Coleman, who the defendant said were shouting about calling the gardai and having Mr Phelan charged with shooting the dog.
Mr Phelan grabbed Mr Roudaut’s phone and called 999, shouting at the two trespassers that he was on the phone to gardai. Mr 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. Mr Conlon told Mr 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”.
To Fulfil the Threats
On the 999 call made on Mr Roudaut’s phone, which was played to the jury, Mr Phelan told the dispatcher he had “intruders on the farm”.
“They’re Travellers…..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 Mr 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, Mr Phelan could be heard raising his voice as he exclaimed: “We saw three…..” Just over two minutes into the call, Mr Phelan says: “They are coming out here now, they’re coming out here now”.
Mr 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”.
Mr Phelan told detectives that he retreated up a bank but was alerted to the “Travellers” coming towards them.
“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.
Mr 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”.
Mr Conlon led the way up the incline of the bunker as the two trespassers closed in.
As the men were gaining ground, Mr Phelan said he reached for a revolver he had in his pocket and shot in the air. He could not tell gardai 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 Mr Phelan.
The third shot connected with Mr Conlon, who instantly fell face first into the area where the old bunker from the golf course was. Mr Coleman saw what happened and immediately ran away.
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”.
On the Deck
Mr Phelan told gardai in his interviews that at first he didn’t know what had happened but then he saw the man looked “genuinely injured.” Mr Phelan approached Mr 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 from the farmhouse.
As Mr 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 Mr 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 Mr Phelan driving a red Hilux jeep coming down a laneway at speed against them.
Mr Phelan had a First Aid bag over his shoulder and told Gda Curran that a man had been shot, that he was at the end of a hill and needed help. The garda followed Mr 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.
Gda Curran observed Mr Conlon lying on his back with his eyes rolling and saliva coming from his mouth. He noticed the trespasser was hyperventilating and that he was clutching onto the grass with his hands and pulling clumps out of the ground.
It was not until Gda Curran and Mr 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 Mr Conlon’s head to stop the bleeding.
With blood gushing from the back of the head, the garda asked Mr Phelan who had shot Mr Conlon and the defendant replied: “I did”.
At this point, Gda Curran asked Mr Phelan to step back from the injured man. When asked where the gun was, Mr 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 Mr Conlon in a critical condition, despite the fact 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 meter 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 Mr Conlon had been shot, as three rounds were discharged but paramedics could only see one bullet wound on Mr Conlon.
Mr Phelan told the officer the three spent rounds in the revolver which had been fired at Mr Conlon were “possibly crow-shot” for shooting birds and rats. When Sgt Whelan told the defendant it was unusual to have two different types of ammunition in a gun, he said Mr Phelan went silent and didn’t answer.
By this time, Mr Coleman and Mr Duggan were at the main gate to the farm, where they told gardai the dog had been shot. Mr Coleman said they had confronted the farmer, who told them he hadn’t seen them in the woods.
He said Mr Phelan had shouted at them “to get back” and had “let off shots as he turned”.
‘I shot him’
Mr Phelan was standing alone on the incline when Detective Sergeant Michael McGrath arrived at the scene. When asked what had happened, Mr Phelan replied: “I shot him.”
Det Sgt McGrath immediately cautioned the defendant, observing blood on his hands as he did so. He arrested Mr 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, Mr 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.
Mr Phelan enquired about the wellbeing of Mr Conlon in the patrol car and whether the injured man was a Traveller. None of the three trespassers were members of the Travelling Community and Mr Phelan had never met Mr Conlon before.
The detective didn’t answer Mr Phelan either way and told him Mr Conlon was being treated by paramedics.
In his garda interviews, Mr Phelan would deny that he had overreacted by shooting the dog.
Gardai put it to the accused that Mr 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.
Mr 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.
He said he saw the men coming and what was in their eyes.
It was put to Mr 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 gardai. “The way you putting it, it was an aimed shot, that is nonsense”.
Mr 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.
Gardai put it to Mr 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 Mr Phelan replied: “It certainly is not the case, but you have obviously made up your minds”.
Mr Phelan said one of the last times he had called gardai it took three hours for a squad car to arrive, telling them: “So I’m alone effectively up there.” He said he had an impression that the men sensed his fear.
At one point, the defendant asked how Mr Conlon was and was told he was critical. “Oh Jesus, no,” he replied.
Mr 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 Mr Conlon was “constantly closing the gap”.
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 Mr Phelan was told that Mr Conlon had died, Mr Phelan said it was “tragic” and that he had tried to save his life. “I was beside him in the field, it’s awful news”.
Keith Conlon was confirmed brain dead and declared dead at 3.15pm at Tallaght Hospital on February 24. He had sustained a single gunshot wound to the back of the head, the bullet having gone through the brain but not exited the skull.
Mr Phelan was charged with the murder of Mr Conlon on February 25, 2022, to which he made no reply.
Eight months later in October 2022 Mr 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.
Mr Phelan indicated he was not sure when he had last reloaded the handgun and that he was not 100 percent sure with what he had reloaded it with. He said he had voluntarily given the revolver to gardai so they knew what was in it.
The WWoofers
French national Pierre Godreu, who came to work on Mr Phelan’s farm in January 2022, was the first of the WWoofers to give evidence at the trial, giving evidence via video-link from Brussels through a translator.
The 26-year-old had spent the morning of February 22 cutting the grass with a petrol strimmer, which he said was quite loud. At one point, Mr 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 Mr Phelan as he walked up the field with his colleague Julian Roudaut.
He said Mr Phelan had looked anything “from edgy to annoyed” when he was walking away from the wooded area on his lands.
Mr 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 Mr Phelan or keep their distance.
Mr Godreu said Mr 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.
Mr 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 Mr Phelan had immediately gone over to the injured man to see whether he was hurt.
Mr Godreu had told gardai that Mr 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 Mr 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 Mr 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 Mr 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”.
Hannah
Farmhand Hannah Felgner was the only one of the farmhands to give evidence that Mr Phelan had acted in a “kind of threatening” manner, in what she characterised as an initially “purely verbal conflict”.
Ms Felgner, a young German medical student who came to Ireland to learn English, had arrived at Mr Phelan’s farm just two days prior to the fatal shooting.
On the morning of February 22, she saw Mr Phelan and her co-worker Mr Roudaut walk in the direction of the barking.
Suddenly, Ms Felgner said she heard a gunshot and then loud voices; “men kind of screaming and yelling, sounding very angry and upset.”
She said Mr Phelan and Mr 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.
Ms Felgner said she heard Mr 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.
Ms 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” Mr Phelan pulled out a small gun and shot into the air, screaming very loudly, “keep your distance”.
Ms Felgner said Mr 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 Mr 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 Mr 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.
Ms 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 Ms 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, Ms Felgner said she doubted she would “ever find the words to describe the terror” she felt when she saw Mr 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” Mr 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.
Ms Felgner said Diarmuid 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.
Alexandra
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 Mr 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 Mr Phelan and Mr Roudaut enter the woods a few minutes prior to this, Ms 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. Mr Phelan seemed normal but Mr 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 Mr Phelan, who was saying: “Go, Go”.
Ms Fernandes kept looking at the first man’s hands as she was afraid he was going to “take something to avenge on Tal”.
Ms Fernandes then heard a noise and saw Mr 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 Mr 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.
Ms 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.
Julian
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. Mr 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 Mr Phelan through the website Wwoof.ie.
Mr Roudaut said he was cutting bushes around midday when he heard a dog barking in the wooded area of the farm. He, Mr 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 Mr 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 Mr Phelan had shot and a “quite rough” argument ensued between the pair.
Mr 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 Mr Roudaut and Mr Phelan came out of the woods, the men followed in their direction. The witness recalled Mr Phelan asking the men to keep their distance but said the two men kept on walking towards the defendant.
Mr Roudaut said there were gunshots and he saw the first man fall. He said the man had turned his back to Mr Phelan after the first or second gunshot.
He said Mr 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 Mr 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 Mr Phelan after the first or second shot.
He said Mr 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 Mr Phelan had put white powder on it.
Mr Roudaut agreed in cross examination that it looked to him like Mr 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 Mr 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, Mr Roudaut said a gun.
However, when re-examined by prosecution counsel, Mr Roudaut said his first impression was that the object was a gun but he now thought the man had a a phone in his hand.
He agreed with the defence that Mr Phelan looked both shocked and surprised that the man had been hit. Mr 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.
“Smile and smile and be a villain”
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 Mr 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 Mr 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 Mr 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, Ms Felgner relied: “They were approaching..the farmer shout at them to get back. He said keep their distance but they didn’t”.
Ms 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 Mr Conlon can be heard coming on the call, saying: “I’m 35, I got shot at”.
As the recording was played, some members of Mr Conlon’s family left the courtroom in tears.
During the call, which lasts more than nine minutes, the operator can be heard giving Ms Felgner advice on how to administer first aid.
The operator asked “whereabouts is he shot”, to which Ms Felgner replied “not in head, in chest”. When asked whether there is more than one wound, Ms 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”. Ms Felgner can be heard shouting “keep him lying down”.
When told to “apply firm pressure”, Ms 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 gun shot 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 Mr Phelan’s 999 call and that of Ms Felgner’s.
‘Extremely Violent’
The jury were also given considerable background evidence on Mr Conlon.
On January 26 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, Mr Conlon became “extremely violent”, kicked Gda McDonnell in the head and had to be restrained. He later tried to jump from the back of a patrol car.
Mr 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 Mr Conlon was 23 years old at the time.
Asked whether he knew Mr Conlon, Garda Sergeant Simon Whelan agreed he had known the deceased for some time and had met him on and off.
On the first occasion he met Mr Conlon, who was also known by the name Keith Green, Sgt Whelan said he observed him driving a red Ford Transit van, leaving the Hazel Hill Halting site with two other men on July 1, 2018.
Sgt Whelan agreed that he and his colleagues had also met Mr Conlon and others travelling in a car on the Blessington Road in Tallaght on August 26, 2018. On that occasion Mr Conlon and Robin Duggan were passengers in a vehicle driven by another man. The men had told gardai they were on their way to “the horses in the field behind Hazel Hill Halting site”.
Mr Guerin put it to the witness that Hazel Hill Halting site is immediately below Hazelgrove Farm. Sgt Whelan said there was a field between them.
It perhaps would have been more fitting to draw an analogy between the opening scene of Hamlet and the absence of Keith Conlon’s fellow trespassers, whom the jury were essentially told were gone and would not answer.
An entire week was lost in the trial when key prosecution witness Kallum Coleman, who had been due to give evidence on October 30, instead booked himself a one-way ticket to Spain.
A bench warrant was issued by the trial judge for Mr Coleman’s arrest. When it came to light that Mr Coleman was “holing up” in a hotel in Spain, gardai flew to Marbella and explained the consequences of the bench warrant to him.
Mr 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 November 5.
Evidence was given during the trial that Mr Coleman had been stopped and searched by gardai on multiple occasions. On more than 20 occasions, it was recorded by gardai that Mr Coleman had associated with people that are connected to organised crime.
However, it was also said that Mr 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 gardai as he was concerned he would be viewed as “a rat”.
The court heard that garda records are entered into a system known as ‘Pulse’, which contains a section known as ‘Core Details’. A subheading called ‘Modus Operandi’ within the ‘Core Details’ section records the way entrants go about alleged crime and can sometimes be used for statistical data.
Garda records for Mr Duggan under Modus Operandi stated: “Burglar, drug dealer, drug user, receiver/handles [stolen] property, shoplifter, snatcher, UT merchant [unlawful taking of motor vehicles or stolen cars]”.
However, Mr Duggan has no convictions in relation to these matters and the entrants on the Pulse System are not indicative that he was convicted, arrested or suspected of any of these alleged offences.
The trial heard Mr Duggan has previous convictions for the misuse of drugs, public order, criminal damage and 35 for road traffic matters ranging from dangerous driving to licensing matters.
‘Socially Deprived’
Detective Sergeant Mary Fitzpatrick also gave evidence to the trial, commenting on the results of a defence compilation of 89 crimes in the Tallaght area, which were documented in the local press over a 22-year period. These included shootings, murders, robberies, drug dealing, burglaries, vehicle arson and sheep attacks by dogs on others farms.
One newspaper extract from ‘The Echo Newspaper’ in Tallaght was shown to the jury on a screen in the courtroom and was headlined as “Dogs killing young lambs during savage attack” in Corbally in Saggart.
Mr Bowman said the population of Tallaght in 2022 was between 180,000 and 200,000 people and he described it as a “socially deprived” area. He said the vast majority of people in Tallaght are hard-working and decent but that there is also a cohort within the community who seem to interfere with the lives and peace of mind of the residents.
PATHOLOGY
State Pathologist Dr Heidi Okkers told the trial that Mr Conlon had died from a single gunshot wound to the head and that she had retrieved the deformed lead projectile during a post-mortem examination. Her report showed the fatal wound was 6cm below the top of the deceased’s head.
The jury also heard from the expert witness that the absence of soot and powder tattooing around the bullet’s entry hole indicated there was a distance of greater than a meter between the victim and the shooter when the gun was fired.
She said the position of Mr Conlon with respect to Mr Phelan could not be determined solely by the track of the bullet through the deceased’s head.
‘Extremely Dangerous’
During the trial, there was much focus on the type of ammunition Mr Phelan had loaded into his Smith & Wesson revolver.
Asked by gardai 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 percent”. 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 Mr 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.
Det Gda 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 Det Gda 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.
Mr Guerin put it to Det Gda 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 detective said the pathologist informed him that Mr Conlon was 1.7 meters in height and that the wound to the back of his head was 1.64 metres in height, if the deceased had no shoes on.
“The fatal gunshot if standing straight and not wearing any shoes was 60mm below the top of the head?” prosecution counsel John Byrne had asked. The witness agreed.
Mr Byrne put it to Det Gda O’Donnell that, having conducted a test, the witness had come to the view that the revolver struck the target marginally low at the given range. “For me, that’s how I struck the target,” he replied.
“If you were to discharge the firearm one handed at an upright and 1.7m static target from a distance of five meters away and if you were to strike 6cm’s below the top of the target then that means you would have to aim at a point of 18mm or 1.8cm below the top of the target?” asked Mr Byrne, to which the witness agreed.
“If you were standing at a distance of five meters away where you placed a mannequin 1.7 metres tall in order to cause the bullet to strike that individual 60mm below the top point of the head, you would have to aim at the head and 1.8cm below the top of the head?” asked counsel. The detective said this was correct.
Defence counsel, however reminded the witness he had said movement was a key feature but when he tested the accuracy of the Smith & Wesson revolver at a target range, he had been aiming at a target that wasn’t moving.
The witness agreed the target range was a familiar work environment and that he was not moving between discharging rounds, had discharged them in his own time and that the ground under his feet was even and smooth.
The detective said he had been discharging shots under controlled circumstances, agreeing with counsel that what happened on Hazelgrove Farm was very different from range and competitive shooting.
The witness also agreed the movement of Mr Conlon towards the accused was completely different to aiming at a fixed target. He also agreed that the accused’s state of mind of being terrified at what was happening bore no resemblance to the witness’ state of mind when test firing the revolver.
The expert 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 Det Gda O’Donnell’s testimony, the jurors were allowed to hold and pull the trigger of the revolver with which Mr Phelan fatally shot Mr 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 Mr 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.
The Cardinal Rule
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 Mr Phelan’s farm.
Mr 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.
Mr 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 Mr Phelan could have fired all three shots as quickly as Mr Conlon turned, adding that people “shoot faster than they can observe changes in their environment and make decisions”.
Mr 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 Mr 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.
ANIMAL ATTACK VIDEOS
During the trial, the jury viewed “upsetting and difficult” animal attack videos taken from Mr 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 Mr 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 Mr Conlon’s phone and it showed trespasser Mr Coleman holding up a dead fox in his right hand and his dog Vin on a lead in his left.
Another video taken on Mr 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, Mr 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”.
Mr 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.
Mr 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.
A dog warden also testified for the defence that farmers are “perfectly within their rights” to shoot loose dogs on farms when they are “worrying sheep” and that it is not “an inappropriate response”.
Phillip Behan said once the dog is worrying sheep, the farmer has a right to shoot the dog if there is no other option and they see the dog is “free”. He said the instant of discharging the firearm must be reported to gardai.
In cross-examination, prosecution counsel Mr Byrne put it to the witness that there is IFA protocol for farmers to shoot dogs who are worrying sheep and there is a requirement under legislation. Mr Behan said legislation gives the option to do it but the first option is to catch or seize the dog. He said the dog only has to be in the vicinity of where the sheep are. He agreed that in order for the dog to be worrying sheep, the dog had to be loose.
A badger expert – Dr Paddy Sleeman – described the active badger sett found on Mr Phelan’s farm and said the crowning down hole for it had been dug in February 2022.
Badgers, the court heard, are fully protected from hunting or interference on both sides of the border but are still “persecuted.” He said people are still prosecuted for killing badgers.
That Last Line of Protection
In her closing speech, prosecution counsel Roisin Lacey asked the jury to consider whether Mr Phelan had lost his temper and overreacted when he pulled a revolver from his pocket and fired it at Mr Conlon, having “reached the end of his tether” due to repeated criminal acts on his property.
The prosecutor told the jury that Mr 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 Mr 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 Mr 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 Mr 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 Mr Phelan’s claim that he was afraid of being “beaten to a pulp” and reminded the jury that neither Mr Conlon nor his companions had any weapons.
The defence, however, asked the jury to acquit Mr 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 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.
Counsel said the killing of trespasser Mr Conlon was “a tragedy and a grievous waste of human life” but it did not happen because of any crime committed by Mr 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 Mr 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.