Prominent barrister on murder charge appeals High Court decision to refuse bail

Diarmuid Rossa Phelan (53), of Kiltalown Lane, Tallaght, Co Dublin is accused of the murder of Keith Conlon (36).

A PROMINENT BARRISTER who was remanded in custody when he was charged with the murder of a father of four in a fatal shooting on farmland last month is appealing a decision by the High Court not to grant him bail.

Diarmuid Rossa Phelan (53), of Kiltalown Lane, Tallaght, Co Dublin is accused of the murder of Keith Conlon (36) at Hazelgrove Farm, Kiltalown Lane, Tallaght, on 22 February last.

Mr Conlon, from Kiltalown Park in Tallaght, was severely injured in the shooting incident and died at Tallaght University Hospital two days later.

During a High Court bail application, lawyers for Mr Phelan – who is a senior counsel and an associate law professor at the School of law, Trinity College Dublin – claimed their client would be “completely and utterly ruined” and his “life’s work wiped out” if the application was turned down.

Ms Justice Deirdre Murphy refused the application, however, saying last Monday, 21 March, that Mr Phelan posed a serious flight risk if admitted on bail.

The judge explained that Mr Phelan has a “powerful incentive to evade justice” based on the seriousness of the charge, the strength of the evidence, the likely sentence and the ongoing threats to the accused.

Today, the Court of Appeal was told Mr Phelan has informed the Director of Public Prosecutions (DPP) of his intention to appeal Ms Justice Murphy’s decision.

Jane McGowan BL, for the DPP, said the prosecutor had received notice of Mr Phelan’s appeal yesterday afternoon.

Michael O’Higgins SC, for Mr Phelan, told Court President Mr George Birmingham that he expected any such hearing to last “about an hour”.

Ms McGowan said she agreed with Mr O’Higgins’s estimation.

Setting a date of 5 April for the appeal hearing, Mr Justice Birmingham told the defence and prosecution teams that they “must work to that deadline”.

“The onus is on both sides to work to that date,” he added.

Mr O’Higgins had submitted to the court that his client is a person who has a greater understanding of having to meet a court order “rather than 99.9 per cent of the population”.

But Ms Justice Murphy said the court disagreed with this assessment, saying: People who find themselves in desperate situations will be tempted to evade the consequences.”

The accused, she said, was not entitled to any “greater consideration” than any other accused who came before the High Court seeking bail.

Ms Justice Murphy also said the full extent of Mr Phelan’s assets was not known and the court noted that three different addresses in south Dublin had been submitted by the accused.

After Ms Justice Murphy refused Mr Phelan’s bail application, Mr O’Higgins asked the court if its concerns would be allayed should his client transfer his assets into a “third party name”.

The judge told counsel that the court’s concerns would be “abated” if the accused didn’t have “the means” to flee the jurisdiction.

Before delivering her decision, Ms Justice Murphy said that while reflecting on matters, she had looked at public documents available from Sagacious Investment Ltd and saw that Mr Phelan had been appointed as a sole director last September.

The court has heard that the farm in Tallaght 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”.

The judge then put it to Mr Phelan, who appeared on video-link from prison, that in filing his notice of appointment he had stated that he usually resided in Northern Ireland. She asked the accused if he was usually resident in Northern Ireland. “No, I was under various threats in the farm and used that address where the company is registered to avoid threats being delivered to me at home,” he replied.

“So it’s wrong?” asked the judge. Mr Phelan agreed that it was saying: “I’m resident in the address that has been handed up to you”.

“This is a public document and it says that you are usually resident in Northern Ireland and that’s wrong?” asked the judge. The accused replied that it was.

Mr O’Higgins told the judge his client would do “whatever was required” to get bail.

The evidence of criminal conduct in this case, the judge said, was extremely strong and it was not disputed that the accused held a legally held rifle and loaded revolver when carrying out work on the farm.

It was also not disputed, she continued, that Mr Phelan had shot a dog using his rifle.

It was further not disputed, she said, that when the dog owner and his companions remonstrated with Mr Phelan, the accused had taken the revolver out of his pocket and fired three shots in the direction of the men.

“It is not disputed that Mr Conlon was hit in the back of the head with one of those shots and died at the scene,” she stated.

Mr Phelan, she said, had told Detective Garda Mick McGrath from Tallaght Garda Station that he shot Mr Conlon and the applicant later signed a statement confirming this.

These events, she said, had been witnessed by multiple witnesses; namely four of Mr Phelan’s employees and a companion of the deceased man.

The applicant gave his account of events to gardai in his fourth interview and a note from the accused’s solicitor had been handed into court, said the judge.

Ms Justice Murphy pointed out that the accused’s account was contradicted by other witnesses and said it would be for a jury to decide on this matter. “He said he was terrified of the men and shot in the air over their heads to get them to retreat and was stunned when one of them went down,” she said.

A verdict of gross negligence manslaughter at a minimum was open to the accused, she said.

Referring to the strength of the evidence, the judge said it provided a powerful incentive for Mr Phelan to flee. “He believes himself to be under threat from persons aggrieved by the death of Mr Conlon,” she continued.

Commenting on the accused’s ability and opportunity to flee the jurisdiction, Ms Justice Murphy said he was a man of “extensive assets” and that the full extent of these assets were not known as a statement was not filed under the Bail Act, which provides for the disclosure of income.

The judge said it emerged at the hearing that Mr Phelan has control of property in the US and she pointed out that he “may well have other assets”. She highlighted that three different addresses in south Dublin had been submitted by the accused and that, before the court considered admitting the applicant on bail, such disclosure at a minimum was required to set an appropriate bail bond.

These assets, she said, are “substantial” and include a 180 acre farm in Tallaght and a 45 acre farm in Wexford.

“He has a residence in south Dublin which he says is in his name,” she added.

The judge said the legal ownership of the two farms were vested in companies registered in Northern Ireland. “Valuable assets can be realised by the sale of the companies owning them without knowledge of the authorities in this jurisdiction,” she continued.

A further concern, she said, was that the applicant was a flight risk as he and his children are US citizens. “Even if he hands over his current American passport there is nothing to stop him applying for another one,” she stated.

The accused, she said, can leave the jurisdiction and merely has to get into a car or bus and drive an hour and a half and once north of the border is subject to no border controls.

“Once north, American passport holders can travel to a number of locations with no extradition with Ireland,” she continued.

Ms Justice Murphy said the court disagreed with a submission by the accused’s barrister that these concerns can be met by his client giving an undertaking not to apply for another passport.

“This undertaking is of no value unless the authorities have the capacity to monitor compliance. The two farms can be disposed of without the knowledge of the authorities and a replacement passport can be obtained,” said the judge.

If the court was satisfied that the applicant could not dispose of his assets pending trial and if a mechanism was available where they could be frozen then maybe this could be “abated but this was not the current position”, she stressed.

The judge said the court also disagreed with another submission by Mr O’Higgins that his client had a “greater understanding” to comply with the bail order because of his “illustrious career”. “People who find themselves in desperate situations will be tempted to evade the consequences,” she added.

She said the accused’s barrister further submitted that the High Court should also take into account that Mr Phelan may have to wait up to three years to stand trial. “A delay of that order is inordinate and unacceptable; he can renew his bail application after four months. People are entitled to be tried with reasonable dispatch and expedition and complaints about delay can be addressed to the Courts Service,” she said.

Furthermore, she said Mr O’Higgins submitted that the accused’s life would be ruined if he did not attain bail. “Ruined lives are an unfortunate byproduct of every violent death and parents and children end up collateral damage,” she stated.

In summary, the judge said the accused’s assets could be “realised” without the knowledge of the State and he could evade justice on the balance of probabilities. Mr Phelan and his children being US citizens made the evasion of justice “simpler”, she added.

Taking all this into account, Ms Justice Murphy refused the accused’s application to be granted bail.

Mr O’Higgins said he would take instructions from his client and asked the court if Mr Phelan transferred his assets into a “third party name” would that “go some significant distance” to allay the court’s concerns. The judge said if the accused didn’t have the means to flee the jurisdiction then the court’s concerns would be abated.

“If the assets were transferred into a third party name where the control of the assets were secured, the court would be looking at the applicant in a different light,” asked Mr O’Higgins.

“It might do,” replied Ms Justice Murphy.