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AN EXTRAORDINARY EXCHANGE occurred during a week-long pre-trial hearing in October, when Diarmuid Phelan’s defence team objected to what they said was the “unorthodox” attendance of court artist Mike O’Donnell, arguing the defendant was entitled to sit through his trial “without feeling his every move is being watched”.
Phelan was found not guilty of murdering a man who was trespassing on his farm in Tallaght in 2022.
Phelan walked from the Criminal Courts of Justice a free man this evening after the panel of nine men and three women returned their unanimous verdict to Ms Justice Siobhan Lankford.
The jurors had agreed with the defence case that Phelan was entitled to defend himself when he came under threat on his own land.
The jurors had spent six hours and 51 minutes over two days considering their verdict following a 10-week trial.
Phelan (56) went on trial last October after he pleaded not guilty to murdering father-of-four Keith ‘Bono’ Conlon (36) at Hazelgrove Farm, Kiltalown Lane, Tallaght, Dublin 24 on 24 February 2022.
Phelan, a barrister, law lecturer and farmer, owns Hazelgrove, formerly a golf course in Tallaght.
He made no reaction as the 12 jurors left the courtroom but was later seen embracing his family.
Members of Keith Conlon’s family quickly left the courtroom as soon as the not guilty verdict was announced. In a statement issued afterwards, they asked for privacy and said they were hurt and disappointed by the verdict.
One of a number of elements the jury were not present in court for during the trial was the objection to the courtroom sketch artist.
Sean Guerin SC, defending, asked the court not to grant permission for Mr Phelan to be sketched on the basis of the severe threats that were made against him and his family in a previous trespass case. “The administration of justice in public does not involve the reporting of audio or a visual image,” he added.
Ms Justice Siobhan Lankford asked counsel whether or not his client was photographed each day leaving the Criminal Courts of Justice Building. In reply, Mr Guerin told the judge: “You don’t supervise what happens outside; you do supervise what happens in the court.
Why should Mr Phelan have to suffer that process when the vast majority of defendants don’t?”
The lawyer said his client was facing a trial that was not just about his reputation but also his liberty against the background of very long running threats being made against him. “Some of them have a connection to the most serious organised crime gang; he is entitled to be treated as anyone else is in the courtroom and for it to be a safe place for him”.
In reply, Roisin Lacey SC, prosecuting, said Mr Guerin had not set out the legal basis for his objection and asked why Mr O’Donnell should not be permitted to engage in his usual practice of sketching in court. Ms Lacey said she was aware of Mr O’Donnell having sketched individuals in both the higher and lower courts.
Whilst Ms Lacey called it “reprehensible” that Mr Phelan was threatened in such a way, she said it could not impact on the issue they were dealing with. She submitted that the defendant’s image was already in the public arena and also underlined that the defendant “is not a child and does not have the automatic protections associated with a child”.
Ms Lacey submitted that she failed to see how the dissemination of a court drawing could render the courtroom “an unsafe place”.
Mr Guerin said Phelan had already been put through “threats of the most terrifying nature” and was “entitled to sit through a trial in which so much is at stake and to concentrate on what was happening without feeling his every move is being watched by someone, who will reproduce that graphically for the benefit of the public and the people trying to threaten him”.
Taking the stand, Mr O’Donnell told the judge that he proposed to sketch Phelan when the jury was present in the courtroom and that he had never been refused permission to draw a defendant since he began working in 2010.
Mr O’Donnell told Mr Guerin under cross-examination that he believed he had a constitutional right to earn a living.
In her ruling, Ms Justice Lankford said justice must be seen to be done in public and this included Phelan’s trial. She said it was appropriate and fair that visual representations could be made by members of the media. She added:
Mr Phelan’s image is already in the public arena and the production of a sketch in the course of the hearing doesn’t put him at any further risk.
The judge pointed out that during a trial, an accused person’s every move is watched by the 12 members of the jury. “It seems to me that Mr O’Donnell is not going to [be] an additional burden in that context,” she concluded.
While the jury heard that Keith Conlon was previously arrested for a burglary, during which he became “extremely violent” and attacked a garda, they were not told of the other information the force kept on file about him.
The 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.
On the system, the ‘Modus Operandi’ subheading for Mr Conlon had stated: “Burglar, drug dealer, drug user, larceny from cars, receiver, handles [stolen] property, shoplifter, UT merchant [the unlawful taking of motor vehicles or stolen cars]“.
The jury was also unaware of a Pulse entry going back to 2008 when gardaí stopped and spoke with Conlon, who was cycling his bike. Conlon had with him an unmuzzled Japanese Akita dog, which is a restricted breed.
When asked what the dog’s temperament was like, it was recorded that Conlon told gardaí that they “would soon find out if we stepped out and approached him”.
Conlon told gardaī he had another dog of the same breed at home and that both dogs were kept in the backyard. “He also bragged that he has the dogs trained to attack guards who are raiding his house”.
On 21 November, the forewoman of the jury handed the judge a note of a suspicion the panel had about a member of the public making a recording with their phone in the courtroom when a garda was giving evidence.
The note was not read to the court and only shown to counsel but it later became clear that the jury had asked the judge in their note whether they should be concerned.
The court heard that the member of the public concerned was said to have grown tired of texting about the evidence when Superintendent Jason Miley was giving evidence.
In the absence of the jury, the prosecution said enquiries had to be made and it was important to make sure that the jury felt safe in the courtroom “without any fear whatsoever”.
The jury were not informed that the member of the public was later asked by gardai to return to court, where his phone was examined by the investigation team.
The court heard that four audio recordings had been made on the phone and were limited to “the tail end portion” of Supt Miley’s evidence. The audio recordings had been disseminated to a WhatsApp group but there hadn’t been any visual recording of anyone on the phone.
The first audio recording was of the defence asking Supt Miley a question about the 20 occasions trespasser Kallum Coleman had been noted in the Pulse records, along with his associations with people connected to organised criminal groups and the Superintendent’s answer in relation to that.
The second and third recordings concerned a discussion about the prosecution closing its case and how they weren’t in a position to close immediately. There was nothing in the fourth clip, which was only seven seconds long.
Ms Lacey told the judge that gardaí were of the view that there was nothing of concern for the jury.
“The person involved has engaged fully with the gardaí and is incredibly remorseful for his actions. He was aware there could be no video but presumed that, because there were reporters in court and the DAR was on, that he could [audio] record what was going on,” Ms Lacey said. She said the individual understood that enquiries had to be made and he had participated fully and voluntarily.
The defence was of the opinion that the jury should be told “what they suspected happened, did in fact happen and that they were absolutely right about what had happened”.
The prosecution’s position was that the jury didn’t need to be told any detail other than that the matter had been investigated and the answer to their question – as to whether they should be concerned – was still “no”.
When the judge initially addressed the jury about their note, she said enquiries had been made and there was no basis for any concern on their part. They were told the answer to their question was “no”.
At a later date, the judge told counsel that the jury was entitled to know they were correct and that there was no video recording made. She said it was an audio recording of a small portion of evidence and that it occurred during Supt Miley’s evidence.
Addressing the jury on 31 December, the judge told the jurors that their “suspicion” had been correct and that part of Supt Miley’s evidence had been recorded. She said no video recording had been made and there had been no recording of the jury but “just that passage of evidence” from Supt Miley.
She said the individual’s phone was examined by gardaí when the investigation was carried out and “no other files relevant to this trial were found on the phone”.
Separately, John Byrne SC, prosecuting, told the judge on 3 January that there had been “a development in the case” and that witness Kallum Coleman had been arrested the previous night. Counsel said Coleman had been brought to a garda station but was now unlawfully at large.
Previously, the trial heard that the key witness was last seen in Spain. He had agreed to return to Ireland to give evidence but the jury heard he had “a change of heart” and “legged it” whilst gardaí stopped to get refreshments en route to a Spanish airport.
The jury was also unaware that when gardaí entered Phelan’s bedroom after the fatal shooting to recover the Winchester hunting rifle used to kill the lurcher dog, they also found two other ‘snipe rifles’ in the corner with duct tape over the muzzles.
In her application to the judge to admit the evidence, Ms Lacey, prosecuting, argued that it gave the jury “a false and inaccurate impression” to think Phelan only had a Smith & Wesson revolver and a Winchester rifle and was therefore unfamiliar with handling firearms.
She said “to edit out” the two snipe rifles would be wrong and for that reason it should be admissible.
Mr Guerin submitted the defence was never suggesting that Phelan was unfamiliar with firearms, adding that the snipe rifles were lawfully held: “It is clear the prosecution is trying to throw quantity at the jury and trying to suggest competence in the use of rifles in the absence of other handguns.”
In her ruling, the judge said there was no suggestion that the two snipe rifles had anything to do with events from 22 February 2022 and for evidence to be introduced by the prosecution it must pass the first test of relevance.
Ms Justice Lankford said the prosecution had made out a case for relevance on the basis that it showed Phelan had a familiarity and competence with firearms: “In that regard, it seems to me that the question of familiarity has no particular bearing on the events of 22 February.”
She said whether the revolver was discharged incompetently was certainly an issue. The judge said it was part of the defence case that the revolver was discharged inaccurately on the day and it was the prosecution case that it was discharged deliberately and competently.
The judge surmised:
It seems to me that there is nothing to suggest that if you own several rifles, you are likely to be competent or accurate in the use of a revolver. Nor indeed is there anything to suggest that if you own several rifles, you are more likely to be familiar with the use of a revolver. If there were a number of revolvers on the property, it might perhaps be a different argument”.
Ms Justice Lankford ruled that the evidence which the prosecution proposed to lead was prejudicial rather than probative and she would not permit it.
Although the jury viewed several animal attack videos taken from Conlon’s phone, they only heard about footage of dogs being trained to attack a live kitten in a cage and were not shown the actual footage.
The defence wanted the jury to watch the video of a small dog being blooded by being put in a cage with a kitten in order to kill it but the judge ruled it out.
In the kitten video, the pup is encouraged by the men to attack the kitten saying “good girl, get into her” but when the animal doesn’t carry out the command, it is removed from the cage and a bigger dog – a bull terrier – that has already been blooded is put into the cage.
The men can be heard saying “grab onto the neck” and “get on him boy, yeah get him”.
While the bigger dog savages and mauls the kitten, the first dog is placed back into the cage having learned it. The cat can be heard squealing when the two dogs attack it with a man saying: “Go on the bitch.”
Another video taken from the deceased’s phone which was not shown to the jury involved the tearing and pulling apart of a badger by two dogs, neither of which were Kallum Coleman’s dog Vin.
The defence wanted this video shown to the jury to explain how the hunting process on the badger sett worked.
Mr Guerin said:
It involves the release of the dog and permits the dog to chase the animal, drag it out of the hole, the animal escapes and is chased by the lurcher type dog.”
He wanted it played to show not only that the dog has “a sort of bloodlust” but that the hunters had it too and how they get enjoyment from the destruction of animals by other animals.
However, the prosecution objected to the 11 “distasteful” video clips going to the jury in their entirety and submitted that the defence wanted to play them “to create shock or revulsion”.
They submitted the videos of animals being torn apart should be excluded because of their graphic nature.
The prosecution said it was their “fervent submission” that the 11 clips were not appropriate to play to the jury as they were “extraneous” and weren’t central to Phelan’s state of mind, which was the ultimate issue for the jury.
Ms Lacey said the kitten video was “particularly egregious” and did not feature Coleman’s dog Vin. She described this video as “obtuse and wholly inappropriate”.
Mr Guerin argued that this was exactly why the jury should see it and just because it is unpleasant material doesn’t mean it shouldn’t be played. He said it was put to Phelan by gardaí in interview that the lurcher dog was not a danger to anything and this was something the prosecution “had wholeheartedly adopted”, as the animal was introduced to the jury in the opening of the case as a “pet”.
He said Ms Lacey’s submission had sounded like something “out of a Beatrix Potter book”. Ms Lacey shot back, saying if her submission to the court sounded like a “Beatrix Potter novel” then everything she had heard from Mr Guerin’s submission “down to the soil being dug up reads like a Stephen King novel”.
The judge viewed the 11 video clips before giving her ruling, in which she said the question to be determined was whether the evidence of the video recordings from Conlon’s phone was relevant. She said the defence had made a case for the relevance of the videos to show the activities the trespassers were involved in and to give an insight as to how the two men had appeared to the accused that day.
However, she said not all of the videos carried the same degree of relevance, nor were they all necessary to convey to the jury the case being made by the accused. She said the videos which had the dog named Vin in them could go to the jury.
She ruled that two of the videos were not from the deceased’s phone and were not relevant. She also excluded the kitten video, finding that this activity was not being carried out on the farm on 22 February and that the two men in the clip were not identified.
However, she permitted the defence to ask questions of a garda about the kitten video to explore the nature of the activity.
Tensions were high in court on 10 December, when the judge had so far spent two days delivering her charge.
The jury were to be permitted the option to return a verdict of unlawful and dangerous act manslaughter.
When Ms Lacey was addressing the court in the absence of the jury about whether the nature of the projectiles loaded in the revolver fell within this verdict, Phelan exclaimed from the dock: “I wasn’t charged with that.”
Evidence had been given that the three spent rounds in the Smith & Wesson revolver which had been fired at Keith Conlon were “possibly crow-shot” for shooting crows and rats. The five remaining rounds were “hollow-nosed” bullets.
The following morning, the judge addressed Mr Bowman, for the defendant, telling him that his client had interjected the previous day when Ms Lacey was addressing the court, describing it as a “quite serious” matter.
“You should take him outside the courtroom and impress on him the absolute importance of not addressing anyone in the courtroom: he is not to interject, it is improper, he has four competent counsel engaged on his behalf,” said Ms Justice Lankford.
The court rose, allowing Mr Bowman to confer with Phelan outside the courtroom.
When court resumed, Mr Bowman said Phelan would prefer to address the court “and indeed Ms Lacey himself”.
Phelan said: “Yes, judge, apologies and no disrespect was meant to you or to Ms Lacey, I apologise for that.”
Ms Justice Lankford replied: “Very good.”
Phelan continued: “A long trial, judge, I am sick… it was a long day and I’ll just do my best.”
The judge said she appreciated that.
Mr Bowman told the court that Phelan had been unwell for over three weeks and the judge said she had noticed the defendant coughing in court.
When the judge empanelled the nine men and three women of the jury in October, she warned them not to be influenced by external factors, telling them that there was to be “no going out to look at the scene, that is highly contaminating in a case like this”.
However, as the trial reached its closing stages on 28 November, the prosecution asked the judge to consider making an order that the jury visit Hazelgrove Farm to gain a better understanding of the vicinity of the old golf bunker where the fatal shooting took place. They said that, for health and safety measures, it was not being proposed to bring the jury into the woods where the tethered lurcher dog was shot.
Mr John Byrne SC, prosecuting, said it was necessary for the jury’s understanding of the terrain in circumstances where they were given an amount of figures of various differences in height and angles of approach.
Michael Bowman SC said the defence was not amenable to the application and took a particular view in relation to the timing of its being made; in the eighth week of the trial and after both sides had closed their cases. He said it was tantamount to introducing new evidence and didn’t sit comfortably.
Mr Bowman said there are now benches at the bunker because it is set up “as a memorial shrine” to the deceased. “The area has been significantly altered in terms of access into the woodland behind it, which a jury may view as offering alternative avenues of egress and of escape, which weren’t there at the time”.
He said the court had no way of knowing the extent to which the jury were going to engage in some class of an investigative approach, which simply wasn’t appropriate.
Mr Byrne said while vegetation grows and things look a bit different, nobody had suggested the incline up the bunker had changed in any real or material way.
He said there are very clear controls put on the jury in visiting the scene.
In her ruling, Ms Justice Lankford said she was reluctantly refusing the application. She said that while she accepted viewing the location might be of some assistance to the jury, her concerns outweighed the possible benefits.
The judge added: “My main concern is that this has been a very long trial. We are entering our eighth week and if something were to go wrong, it would be lamentable at this stage of the case.”
She said she was mindful that while the location had “changed somewhat” she accepted it hadn’t changed hugely. “But there have been some changes and who knows what impact that might have on the jury’s perception of the situation”. She said it might give the jury the impression that Mr Phelan had more options than he did at the time.
Furthermore, the judge said both sides agreed it would not be possible to have the jury in the ravine, which inclined her to the view that they should not embark on a visit to the scene.
“The ravine forms part of the locus, although it is not where the killing occurred, it is where the precursor to the event took place. The defence say they would be disadvantaged that the jury would not get to experience that; that’s a reasonable point.”
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