A leading barrister, who is accused of murdering a father-of-four in a fatal shooting after an altercation on farmland in Tallaght, will be "completely and utterly ruined" and his "life's work wiped out" if he is not granted bail, his lawyers have argued at the High Court.
Defence counsel Michael O'Higgins SC submitted to the court on Wedneday that his client Diarmuid Rossa Phelan - who is a senior counsel and law lecturer - is a person who has a greater understanding of having to meet a court order "rather than 99.9 per cent of the population".
“He stands for something, he has achieved something over the decades and that must count for something,” emphasised counsel.
Mr Phelan, who gave evidence for a second day via video-link, told Ms Justice Deirdre Murphy that he has no intention of leaving the jurisdiction, saying: "I want to clear this matter because my entire name, reputation and career is dependent on it".
The High Court has heard that Mr Phelan has assets valued in the millions, while during his evidence to the court on Tuesday, gardaí learned for the first time that the accused is a US citizen and has property in Colorado.
Ms Justice Murphy will deliver a decision on Monday on the accused’s application to be granted bail.
Mr Phelan (53), of Kiltalown Lane, Tallaght, Co Dublin is accused of the murder of Keith Conlon (36) at Hazelgrove Farm, Kiltalown Lane, Tallaght, on February 22nd last.
Mr Conlon, from Kiltalown Park in Tallaght, was severely injured in the shooting incident and died at Tallaght University Hospital two days later.
The High Court heardon Tuesday that a witness told gardaí that Mr Phelan shot Mr Conlon, who was unarmed, in the back of the head as he turned to run away after an altercation on farmland at the foot of the Dublin mountains last month.
The court also heard, however, that the senior lawyer told gardai in interview that he believed he was under threat at the time and was “terrified”.
The High Court also heard on Tuesday it would be alleged that Mr Phelan had first “deliberately shot” Mr Conlon’s dog with a legally held rifle without any forewarning.
A witness told gardaí that the accused then fired three shots from a licensed revolver following a “verbal altercation”, with the final shot hitting the deceased in the back of the head after he had turned to run away, the court also heard.
Mr O’Higgins has told the court that the tenor of Mr Phelan’s statement to gardai was that the shooting was an accident, where he had crossed the gun over from left to right in an arc and was “stunned” by Mr Conlon’s injury.
At Tuesday’s bail hearing, Detective Garda Mick McGrath from Tallaght Garda Station told Jane McGowan BL for the State, that gardai were objecting to bail under the “O’Callaghan principles”, where it was argued the accused is a likely flight risk.
There was also an objection to bail under Section 2 of the Bail Act, which allows the refusal of bail if the court is satisfied such a refusal is necessary to prevent the accused committing a serious offence while on bail.
At the outset of the resumed bail hearing on Wednesday, Ms Justice Murphy said that having reflected on matters overnight she wanted to put a number of questions to Mr Phelan.
The judge began by asking Mr Phelan, who was on a video-link, what size were the farms he owned in Tallaght and Wexford. The accused said the farm in Tallaght is approximately 180 acres and the farm in Wexford is 45 acres.
“And their value?” asked Ms Justice Murphy. “I don’t know judge, certainly I would think the farm in Wexford is €10,000 an acre but the farm in Tallaght is very unclear, it is very mixed land and hard to value,” replied the defendant.
“But what did you pay for it?” pressed the judge. Mr Phelan said it was bought in a series of transactions.
Ms Justice Murphy put it to the accused that she presumed the lands had developmental value. “Unfortunately not at the moment; it would be worth €1.8 [MILLION]at least,” said the accused.
The court heard that the Tallaght farm is held in Northern Ireland with a company called Sagacious Investment Ltd and Mr Phelan said the farm in Wexford is held through "EUSA Ltd".
Mr Phelan was asked by the judge about his residence in Dublin and he said it was held in his name with an approximate value of between €900,000 and one million.
The judge asked the accused if he could sell both farms by selling the companies. Mr Phelan said the farms are held in trust for the benefit of his children. “The land in Tallaght is in various arrangements,” he added.
"Is the company the owner or not?" asked the judge. "Yes, the company is the legal owner but not the beneficial owner of all the lands," he replied.
The judge also put it to the accused it would appear there were “ongoing difficulties” since he bought the lands in Tallaght as he had made 22 complaints to gardai. Mr Phelan agreed with this statement.
Ms Justice Murphy further put it to the accused that he had made reference to being “terrified” on February 22nd and asked him if he was “terrified” of any potential repercussions arising out of these events. “Yes, there have been threats made and my family is very concerned as am I,’’ he replied.
The judge asked the accused whether it might be more attractive for him to leave the jurisdiction. “No judge, I have no intention of leaving the jurisdiction for many reasons. I want to clear this matter because my entire name, reputation and career is dependent on it. I can’t leave the jurisdiction as my young family are based here,” he replied.
The judge suggested to Mr Phelan that his children could leave the jurisdiction with him as he is an American citizen and asked if his children had American citizenship. “Yes, they do,” he replied.
Following this, defence counsel Michael O’Higgins SC said there were one or two discrete issues that his client wanted to give evidence on. The barrister asked the accused about his bank commitments and mortgages. Mr Phelan said he had a seven-figure mortgage commitment but told the court that it was “hard to make ends meet at the moment”.
He added: “There is no prospect of being able to cover the current outgoing through the sale of assets as it would take far too long. I’ve no intention of disposing of assets, I would not be able to make the payments for my mother in the event my Trinity salary goes by the wayside. If I can’t generate money I will have difficulty making mortgage repayments as it is.”
Mr O'Higgins asked his client if he was a member of a gun club presently. "No, I told the gardaí that in interview. I haven't been a member in Wicklow for many years. I was a member of a target club," he said.
Mr O'Higgins then called the accused's sister, Emer Phelan, to take the stand. Ms Phelan agreed with counsel that she had assisted gardai with the searches carried out at Kiltalown Lane and in terms of accessing the safes.
The lawyer asked the witness if gardai had spread out the contents from the safe onto a bed at the end of the process and told her what they did and did not have an interest in. “They had no interest in anything but ammunition and guns at the time and said they weren’t there for anything else,” she replied.
Ms Phelan agreed she had brought her brother’s two passports to court and given them to his solicitor.
Ms Justice Murphy asked Ms Phelan if she or her siblings were able to pay for the care of their mother. “No, I couldn’t afford it. It is over €100,000 a year,” she said.
The judge asked the witness if their mother had any assets. “None whatsoever,” she replied.
Ms Phelan told the court that her mother lives with her uncle, that he assists her but that he is not present in the house all of the time.
Ms Justice Murphy interjected and said she did not realise their mother was at home. Ms Phelan said their mother was very dependent on home care.
The judge asked Ms Phelan why she was not in a position to help regarding payment towards her mother’s care. “I’m a housewife, I help in whatever way I can on a daily basis but not financially,” she said.
The accused told the judge yesterday that the entirety of his Trinity salary goes towards independent homecare for his mother in her home.
In her submissions as to why Mr Phelan should not receive bail, Ms McGowan, for the State, said it was their position that Mr Phelan was a likely flight risk and was likely to commit further offences.
The judge asked Ms McGowan what her section 2 evidence [likely to commit further offences] was as she had given no evidence of that to date. Counsel said that the detective did not have “to pitch his colours” to any offence and the court had already heard that the accused had access to guns, an ability to shoot firearms, had previous disputes in relation to land and trespass matters and “that a similar type of offending could occur”.
Ms McGowan said the court had evidence of eye-witnesses who said the accused first shot the dog with his rifle before there was a verbal altercation of no more than two minutes between Mr Phelan and the deceased. “He shot two shots in the air or wide of the deceased and when he [MR CONLON]sought to walk away a third shot was discharged in close range in the back of the deceased’s head,” she continued.
She said the applicant had every incentive to flee the jurisdiction and it was the State’s submission that the accused had been caught “red-handed”.
Ms McGowan submitted that the State was not on notice that the accused had property in Colorado and that only arose in his cross-examination yesterday. “The gardai were not aware he was a US citizen until he gave that evidence,” she argued.
In respect of assets and finance, the barrister said what Mr Phelan has available to him was unknown and submitted it was “a stab in the dark”. “We know his assets are valued in millions and there are huge amounts of wealth and money available to him,” she added.
Counsel asked the judge to refuse bail on both the grounds of the O’Callaghan principles and Section 2 of the Bail Act.
At the beginning of his submissions to the High Court, Mr O’Higgins said the presumption of innocence was of paramount importance and that gave rise to the presumption of bail.
The barrister stressed that if his client does not get bail in this case then he is “ruined”. “He is completely and utterly ruined and his life’s work will be wiped out,” he submitted.
Mr Phelan, counsel said, had “laid bare the intricacies and privacies of his life and soul” and did not have to convince anyone of anything. “If you walked in here off the street, you would be under the impression that this man had to go to the ends of the earth to prove a negative, he has to do no such thing,” he emphasised.
Mr O’Higgins said it was the State’s “premise” that this was an “impromptu event” and that because something unpredicted had arisen in life that somehow this unpredictability might occur in the future. “The man is 53 years of age and he doesn’t have a parking ticket to his name apparently,” he added.
He described the submissions made by the State as “untenable and unstateable” and pointed out that it was essential to bear in mind that the primary ingredient for an offence of murder is the state of the accused’s mind.
“The tenor of the [ACCUSED’S]statement is that the shooting of the unfortunate deceased was an accident, that he crossed the gun over from left to right in an arc and to quote ‘was stunned’ and initially sceptical that he [MR CONLON]was injured at all,” said counsel.
Mr O’Higgins said he was “genuinely struggling” to ascertain how the making of complaints against persons that one alleges are trespassing and damaging property on one’s land, in circumstances where it demonstrates a dependence on gardai, is “being spun” as “counts against you” and maybe committing a serious offence. “As a citizen of this country when you feel aggrieved you contact authorities, make a complaint and authorities investigate in the ordinary way and that is being advanced as a reason to stop you getting bail,” he submitted.
The court heard yesterday that on 22 occasions a series of written complaints were made to gardai involving Mr Phelan and a Travellers halting site which adjoined his land.
The judge told counsel that it was Mr Phelan being a flight risk that she was concerned about.
Mr O’Higgins said his client was a law abiding citizen and it would be unfair through a “misguided purpose” for Mr Phelan to be deprived of his liberty.
There was no difficulty whatsoever, he said, with Mr Phelan giving an undertaking not to contact any prosecution witnesses in the case and that his client’s capacity for interference was non-existent.
The accused, he stressed, had no history of fleeing from justice and indeed had no history of fleeing from anything.
Addressing Mr O’Higgins, the judge said that in reality one can get into their car and be in another jurisdiction in an hour and a half.
In reply, the lawyer said: “You can judge but you have to look at what went before. He is in his 50s, has got roots in his family, an obligation to his family, has got assets and they are tied up together in a fairly complicated way. He has had a job and been a member of the bar since 1994 and a member of the inner bar since 2008. He is a person who owes duties to a court and a person who has a greater understanding of having to meet a court order rather than 99.9 per cent of the population. He stands for something, he has achieved something over the decades and that must count for something.”
Counsel submitted that Mr Phelan immediately went and got assistance for Mr Conlon, that he engaged with gardai at the scene and said ‘I am the person who shot him’.
He said that his client paid for homecare for his mother “in accordance with his late father’s wishes”. “That is a debt of honour and needs to be taken into account,” he added.
Furthermore, Mr Phelan had given an unconditional undertaking “not to set foot” on either farm and he would put gardai on notice and seek the permission of the court if an emergency arose, he said.
The accused, he said, comes with a lot of assets that other people attempting to get bail before the High Court don’t have. “He has a clean record, is a person of substance, has worked all his life, worked in responsible positions and now finds himself charged with almost the most serious offence,” submitted counsel.
Ms Justice Murphy said that in the court’s view this is the most serious offence.
Mr O’Higgins said his client intends to “clear his name” and will be waiting for “anything from 18 months to three years” for his trial to get on as the number of cases building up since Covid have grown exponentially.
“If he doesn’t get bail he could be in custody for two to three years before he ever gets before a jury. He will be ruined long before that and everything he worked for will be set at nought on the basis of the allegations now against him,” he said.
In summary, Mr O’Higgins said his client should be given bail between now and his trial date.
Ms Justice Murphy said she wanted to think about the matter and put the case in for judgment on Monday at 10.30am.