Some have drawn parallels between the fatal shooting by Diarmuid Phelan of trespasser Keith Conlon on his Co Dublin farm and another fatal shooting just more than 20 years ago.
In 2004, Padraig Nally made headlines for shooting dead John “Frog” Ward (43), a Traveller and father of 11, when trespassing on his farm in Co Mayo. Nally, who died last November, pleaded provocation and was convicted of Ward’s manslaughter, but his conviction was overturned on appeal. On retrial in 2006, he was acquitted of manslaughter.
Nally, the trial heard, experienced trespassing and theft on his farm and had become preoccupied with looking after it, keeping a gun in a garage after his home was broken into. The public debate around the case highlighted the isolation and vulnerability of people in rural areas. It also exposed deep-rooted prejudice towards Travellers.
On Friday, Phelan, a senior counsel and a professor of law at Trinity College, walked free from the Central Criminal Court after a jury found him not guilty of murdering Conlon at Hazelgrove Farm, Kiltalown Lane, Tallaght, in February 2022.
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Unlike Nally, Phelan hardly conformed to the general perception of a farmer when he bought Hazelgrove Farm in 2014, though he already had some experience through his mixed organic livestock farm in a rural part of south Co Wexford.
In hindsight, Hazelgrove Farm, a former golf course, was a different kind of investment. Phelan had problems from the outset with intruders coming on to his lands and he had called gardaí over several incidents, including trespassing, arson, theft and criminal damage.
He 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 told gardaí he had been attacked several times, his family were afraid and he spent thousands of euro on crime prevention measures and clearing dumped material.
[ Law professor Diarmuid Phelan found not guilty of murder of Keith ConlonOpens in new window ]
In 2017, Phelan was subject to threatening gestures inside Tallaght district courthouse after giving evidence against three young men convicted of trespassing and criminal damage on his lands. Aged 17, 18 and 19, the trio were later separately charged with intimidating a witness but later agreed to plead guilty to a public order offence.
Garda Pulse records showed Keith Conlon knew one of the three. This emerged during Phelan’s trial on a charge of murdering Conlon, who had a conviction from 2010, when aged 23, for burglary and assaulting a garda, for which he received a probation order.
Pulse records noted his fellow trespasser, Kallum Coleman, in his early 20s, had associated with people suspected of involvement with an organised crime gang. Coleman has no convictions, is not suspected of being involved with an organised crime group and the associates lived in his general vicinity, the trial heard.
That background, Phelan’s lawyers argued, was an important backdrop to the shooting of Conlon by their client at around 1pm on February 22nd, 2022.
On that bright spring day, Phelan was busy clearing bushes on the farm with four farm hands, foreign nationals working in exchange for board and lodging, and intended to travel to the city to lecture in Trinity College Dublin.
Conlon, with Coleman and another man, Robin Duggan, had come on to the lands as trespassers. Conlon was preparing to hunt badgers with the aid of a Jack Russell terrier and Coleman’s lurcher dog, Vin, and the trespassers had dug a large hole in a wooded area.
Having heard a dog barking from that area, Phelan headed there with his dog Tal, and a French student, Julien Roudaut.
Phelan shot Vin with his legally held Winchester rifle. He told gardaí he was concerned about lambing ewes, had called out, there was no response and the dog was apparently alone and loose. The dog was in fact tethered to a tree but the defence argued that would not have been obvious to Phelan from his position in a ravine looking up at the wooded area.
Phelan recalled men “exploding” out of the woods, shouting angrily about the dog and him retreating. As he walked with Roudaut back up a field, they were followed by Conlon and Coleman shouting.
Phelan made a 999 call about 1.05pm asking for gardaí to come urgently, there were “intruders on the farm” and “Travellers up behind the machines”. While some Travellers lived in the vicinity, the trial heard none of the three trespassers were Travellers.
Phelan told the responder: “We did not know they were there”, “we’re sheep farmers”, there was “a loose dog”, “we shot the dog”.
“They are very agitated, they are hiding in the woods, and roaring and shouting. We have a violent situation here; we need assistance,” he said.
Asked how many people, he said: “We thought three, they’re coming out here now, we’re not able to deal with these guys.”
He can then be heard saying: “The guards are coming now, you can talk to them.” Shouting can be heard and Phelan saying: “Go back down, go down.”
Conlon and Coleman, according to Roudaut and three other farm hands, continued walking towards Phelan, shouting about the dog. As they came closer, Phelan, who still had his rifle slung over his shoulder, produced his licensed Smith & Wesson revolver from his jacket pocket and fired three shots. The third hit Conlon, who fell to the ground.
At 1.09pm, a 999 call for an ambulance was made by Hannah Felgner, a 19-year-old German medical student who had arrived two days earlier to work on the farm. At the request of the responder, she put Conlon on the phone.
Asked his age, Conlon replied: “Thirty-five – I got shot at.” The sound of his voice prompted sobbing from family members and friends in court.
In a third 999 call, at 1.12pm, Duggan told a responder: “A farmer is after shooting me friend ... he’s after shooting my friend, point blank range.”
In the meantime, Phelan had obtained a first aid kit and was treating the critically injured Conlon with a powder stemming, blood loss, when gardaí and paramedics arrived.
When a garda asked who shot Conlon, Phelan said he did, stood aside and threw the revolver on the ground before being taken to Tallaght Garda station and interviewed in the presence of his solicitor.
Conlon was taken to Tallaght University Hospital, where he was pronounced brain-dead two days later.
In interviews with gardaí, Phelan said he fired shots in an arc from left to right above the heads of the intruders and was “stunned” Conlon fell. He denied having any intent to hit him.
The prosecution case was that two shots were fired into the air and the third hit Conlon. Prosecutors argued that Conlon was unarmed and was shot in the back of the head as he had turned away from Phelan and the accused thus had the necessary intent for murder.
The farm hands were important eye witnesses and the prosecution particularly relied on Felgner’s testimony. Giving evidence in English, she described Conlon and Coleman as very upset when they came out of the woods, screaming things like: “we’re going to call the police” and “why would you do that?”
Phelan spoke “rather calmly”, saying: “All right, go ahead, call the police, just keep your distance,” she said. “They kept on walking towards him, yelling, there was a verbal argument, they were just very upset.”
When they were about 2m from Phelan, he “out of nowhere” pulled out a small gun and shot into the air, screaming very loudly: “Keep your distance.” The two men started turning around and, a few seconds after, Phelan shot one “into the back” and he fell to the ground.
It was put to her in cross-examination that, when the first shot was fired, the men were physically close enough to hit Phelan “a split second later”. She “would not necessarily agree”, adding: “If they would have kept walking towards him, that is possible.”
She agreed the shots were fired in quick succession and it was possible Conlon may have been turning and falling at the same time after being shot. Her recollection of the two men were turning around to run away was something she felt “very sure of”.
Pierre Godreu, giving evidence in French via a video link from Brussels, described Conlon and Coleman as “really angry” and Phelan as “énervé”. The court interpreter’s translation of énervé as “really pissed off” was disputed, in the absence of the jury by the defence, who had their own interpreter. That resulted in Ms Justice Siobhán Lankford telling the jury énervé has meanings ranging “from edgy to annoyed”.
Godreu said Phelan told the trespassers to “go, go, get out, get out” and took out his pistol “when the men keep coming”. The three shots were fired “in quick succession”, the first two in the air and the third in the direction of Conlon. He only realised the third shot had hit Conlon when he fell to the ground.
Alexandra Fernandes (48), from France, gave evidence in court via an interpreter. She described Conlon and Coleman arguing and shouting loudly at Phelan who was telling them to: “Go, go.”
Conlon appeared to be crying and both men were walking towards Phelan between the second and the third shot.
“Everything happened quickly,” she said.
Conlon started to turn around, she could see his face, he made one, possibly two, steps forward, stiffened and fell.
In evidence via video link, Roudaut, through an interpreter, said he was behind Phelan when they went to investigate the barking dog, saw him fire one shot from his rifle but did not see if he shot anything.
A man appeared at the top of a steep bank and he and Phelan were arguing in “quite rough” tones.
Conlon and Coleman came out of the woods walking after him and Phelan, who asked them to keep their distance but they kept walking, he said. There were gunshots and Roudaut saw one man fall.
After the first or second shots, the first man turned his back to Phelan, Roudaut said. He could not say if there were further shots. When he said every shot “was meant towards the sky”, he was asked was he sure.
“It was towards the sky, it is very confusing, I don’t have a lot of memory of the direction of the shots.” He saw Phelan “shooting towards the man but in the air”.
The defence played a video recording from Conlon’s phone featuring woods and male voices saying words including: “We’re calling the guards now.”
“This is not the end of it, mate, you shot the f**king dog for nothing,” he also said, and: “You’re f**ked, watch, this is not the end of it, I’m telling you.”
Roudaut said he could not hear those words at the time and was “very stressed and somewhat afraid”.
Another potentially important eyewitness was Coleman, who had provided a statement to gardaí and said he would give evidence. When he failed to turn up on the appointed day, the trial was delayed after the judge, in the absence of the jury, issued a warrant to have him arrested and brought to court.
Gardaí tracked him to Spain where they had no jurisdiction to enforce the warrant, but thought they had persuaded him to return with them. However, he left their car when they stopped for a rest break en route to the airport. On Friday, just hours before the jury gave its verdict, the judge was told Coleman had been arrested here on January 2nd but was “unlawfully at large”. The prosecution indicated it was not seeking any order and was just updating the court.
Duggan had declined to provide a statement, or his phone, to gardaí and the trial heard he had “numerous concerns”, including that he would be viewed as “a rat”. Coleman had similar concerns, the jury heard.
As in all murder cases, the onus was on the prosecution to prove its case beyond reasonable doubt. Phelan was entitled to opt not to go into evidence and did not do so, but memos of his interviews with gardaí were used in evidence.
His defence was he was entitled to discharge his revolver as he did, it was a legitimate act of self-defence, and he did not intend to hit Conlon.
Two firearms experts from the US were called in support of defence arguments that Conlon being hit was an unintended result due to several factors, including uneven terrain. They also assessed Conlon’s movement up a slope and the inaccuracy of the revolver for reasons including its light weight, heavy trigger pull and some deviation in its alignment due to repeated firing, movement and Phelan’s combined fear and stress.
In his interviews with gardaí, Phelan referred to the background of criminal and trespassing incidents on his lands. He said he was “terrified” when three men “exploded” out of bushes “screaming and roaring” at him and “effectively threatening” him after he shot the lurcher. He shouted at them to stay back, told them he had called gardaí but they kept coming and he believed they were coming to fulfil the “threats” they had made.
He reached for the revolver, which he kept for controlling vermin on the farm, shot in the air and was “stunned” when Conlon went down.
State Pathologist Dr Heidi Okkers said the bullet’s entry point, 3cm behind and 5cm above Conlon’s right ear, indicated a distance of more than 1m between Conlon and Phelan when the shot was fired.
The wound’s location was consistent with Conlon having fully turned his back to the shooter and was also consistent with Conlon facing towards Phelan when, or shortly after, the shot was fired, and either turning his head or body to leave or turning to look back.
The jury heard much other evidence, including from gardaí, and were shown Phelan’s revolver and Winchester rifle. They were not shown two rifles for shooting game that were taken from Phelan’s bedroom after the judge ruled those were irrelevant to the case.
They heard it is not uncommon for farmers to have guns and the Irish Farmers Association runs firearms training courses for farmers. There was evidence that farmers are entitled to shoot loose dogs if they are worrying sheep and that badgers are a protected species.
The jury saw videos taken from Conlon’s phone, including of the dog Vin mauling a badger. One video, featuring caged dogs being encouraged to maul a live kitten, was deemed by the judge as too grotesque to be shown but the jury was told of its content.
The core conflict was whether the shooting of Conlon was intentional and, if so, was Phelan acting in legitimate self-defence and was the force used proportionate to the threat.
The trial, as defence counsel Seán Guerin, with Michael Bowman SC, instructed by Arthur McLean LLP Solicitors, put it, was “all about emotions”, particularly of anger and fear.
Prosecuting counsel Róisín Lacey suggested the background of trespassing and criminality on the farm meant Phelan was angry and perhaps “at the end of his tether” that day. Men were repairing the farm entrance gate that very day after the latest intrusion, she noted.
The jury should be satisfied Phelan intentionally pointed the gun in Conlon’s direction and shot him in the back of the head when Conlon had turned to leave, she said.
The focus, the defence argued, must be on fear.
Phelan was facing “imminent attack”, “outnumbered by men who had told him he’s f**ked”, they were going to get him, they were within a split second of doing just that”, Guerin said.
The gun in his pocket “was his last and only line of defence and that was why he used it”.
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