The decision of law professor Diarmuid Phelan to fire warning shots at a trespasser on his farm in Tallaght was a reasonable response “given the perception of an imminent threat and the short time available for decision making”, a defence expert has told his trial.
The psychologist, who was the second witness to give evidence on behalf of Mr Phelan also told the 12 jurors that the “dynamics of firearm use” supported the proposition that the intentional firing by the accused of his revolver over the heads of the intruders who were “perceived as a threat” had caused an “unintentional strike” on one of them.
The jury has heard that on the day in question three men - the deceased Keith Conlon, along with Kallum Coleman and Robin Duggan - had trespassed on a wooded area of Mr Phelan’s land while hunting foxes or badgers.
Evidence has been given that the accused had shouted at two unarmed trespassers on his farm to “get back” before he fired three shots from his Smith & Wesson revolver. Mr Phelan maintains he accidentally hit Mr Conlon while firing “warning shots” during the confrontation.
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Mr Phelan (56) has pleaded not guilty to murdering father-of-four Keith ‘Bono’ Conlon (36) at Hazelgrove Farm, Kiltalown Lane, Tallaght, Dublin 24 on February 24th, 2022.
The accused man is a barrister, law lecturer and farmer who owns Hazelgrove, formerly a golf course.
Mr Conlon, from Kiltalown Park in Tallaght, was seriously injured in the shooting incident on February 22nd and died from a single gunshot wound to the head at Tallaght University Hospital two days later.
On Monday, the defence called their second expert witness to testify in the case.
Behavioural scientist Dr William Lewinski told Sean Guerin SC, defending, that the professional and research focus of his work has been the performance of human behaviour under high stress conditions, when an individual is using a tool such as a motor vehicle. He said the tool in this instance was a firearm.
Asked about the characteristics of the Smith & Wesson revolver and whether it was a “safe gun from the point of view of accidental discharge”, Dr Lewinski said the firearm has a harder trigger pull, which generally keeps it safer when it’s pulled out of the pocket.
The jury has heard the Smith & Wesson used by Mr Phelan in the fatal shooting was a double action gun.
Dr Lewinski said double action handguns “are difficult triggers to work and they make accuracy, particularly under rapid trigger pull very difficult”. He said double action trigger pull also creates “serious problems with control and accuracy when shooting at any distance.”
The witness agreed that rapid shooting in stressful situations can make it difficult to hold the alignment of the revolver. He said the shorter the barrel of a firearm, the more significant the degree of misalignment. He said minor errors with short barrelled guns can have “major consequences at greater distances”.
Dr Lewinski said short barrels are highly inaccurate at any particular distance and minimum errors are major. “Minimum errors have major consequences where the bullet goes versus where the intended aimpoint is,” he added.
He said it is “very easy for this gun” to misalign particularly under speed.
Asked by counsel how long it takes a person who is “fleeing or who is running away” to turn their head 180 degrees, the witness said the average time of rotation is a quarter of a second.
Giving the conclusions from his report prepared for the defence, Dr Lewinski said Mr Phelan had attempted to fire warning shots over Mr Conlon’s head.
“At 15 feet, less the one-inch difference in the elevation of the barrel of his gun would mean the difference between a shot safely over Mr Conlon’s head or a shot into his head,” said the witness.
Dr Lewinski told the jury that “the general manipulation problems” of the Smith & Wesson firearm particularly when fired rapidly in stressful circumstances, and the challenges involved in shooting accurately with that gun at a moving person “either to hit them or to intentionally not hit them” and the distance involved in the incident “all created very serious problems for anyone in the incident regardless of the extent of their training with other weapons”.
The witness said the stress of the incident, the one-handed control of the revolver and Mr Conlon’s “unpredictable dynamics” made safely firing warning shots difficult. He said one handed accurate shooting at five metres was also almost impossible for even skilled shooters, regardless of the extent of their training with other firearms.
In his overall conclusions, Dr Lewinski said the actions must be evaluated within the context of the complexity of threat perception, response times and the risks posed by more than one intruder at close range.
He said the decision to fire warning shots was a reasonable response given the perception of an imminent threat and the short time available for decision making. He went on to say the timing of the actions aligned with the reasonable expectation of using force in a rapidly evolving and threatening situation.
Dr Lewinski said the combination of the prior threats, the individuals’ proximity and the threat’s complexity made it challenging for someone to act with complete certainty. The response of shooting, he continued, was aligned with the need to prevent an assault and engage in self-defence, “consistent with the standards of reasonable force, specifically with the intent to warn before using deadly force when feasible”.
The witness went on to say “the dynamics of firearm use” supported the proposition that intentional firing over the heads of the intruders perceived as a threat had caused an “unintentional strike” on one of the intruders.
Under re-examination, the witness agreed with John Byrne SC, prosecuting, that he was not a forensic ballistic expert and had no training in the classification of firearms. He said he was a trained and qualified psychologist.
Asked how many criminal cases he had given evidence in, Dr Lewinksi said “about 300″. Of the 300, the witness said three of those were on behalf of the prosecution. He agreed it was 25 years ago when he last gave evidence for the prosecution in a trial.
The 12 jurors were told by the State in their opening address that Mr Phelan said he was shaking with fear and “scrambled” up a bank to get away but when the deceased man Keith Conlon and a second man kept coming he believed they were “coming to fulfil the threats they had made”.
As they got closer, Mr Phelan said he reached for his Smith & Wesson revolver in his pocket and fired in the air over their heads but was “stunned when one man went down”, the court has heard.
It is the State’s case that two of the three shots were fired into the air and the third shot connected with Mr Conlon. In her opening address, Roisin Lacey SC said the prosecution’s case is that when the third shot was fired, the gun was pointed in the direction of the deceased who was shot in the back of the head when he had turned away to leave. “In those circumstances we say the accused intended to kill or cause serious injury,” counsel said.
The trial continues before Ms Justice Siobhán Lankford and a jury of nine men and three women, when the prosecution will continue its re-examination of the witness.
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