Murder accused barrister Diarmuid Rossa Phelan is not Russian oligarch Roman Abramovich and shouldn't have his assets frozen because "an allegation" has been made against him, his lawyers have argued at the Court of Appeal.
Senior counsel and law lecturer Mr Phelan, who is accused of murdering a father-of-four in a fatal shooting on farmland in Tallaght, on Tuesday appealed a decision by the High Court not to grant him bail pending his trial.
The appeal by the Associate Professor of Law at Trinity College was adjourned until Thursday. President of the Court of Appeal, Mr Justice George Birmingham, asked that the applicant provide a comprehensive financial statement to the court setting out his assets, liabilities, all sources of income in recent years and details of any property in and outside the jurisdiction.
Defence barrister Michael O’Higgins SC had also submitted on Tuesday to the three-judge court that Mr Brian Kearney, Mr Joe O’Reilly and Mr Eamonn Lillis had all got bail and attended their trials and had done so “without the onerous obligations that have been placed” on his client.
Mr Phelan sought bail in the High Court last month but his application was rejected by Ms Justice Deirdre Murphy on the grounds that he is a serious flight risk. Ms Justice Murphy said that the applicant had 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. She 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.
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.
Mr Phelan has been farming in Tallaght since 2015 and holds lands in Wexford where he has been farming for over 20 years.
At the outset of Tuesday’s bail hearing in the Court of Appeal, Mr Justice Birmingham said there was a concern by the three judges that there was a certain failure by the applicant to engage with the issues in the case and that matters did not seem to have been tied down in the way one would have expected in the High Court. “It was all a bit woolly,” he added.
Mr O’Higgins for Mr Phelan said they were in court to “put every card face up” and would be endeavouring to satisfy the court as much as possible and give it some assurances.
Referring to the bail hearing in the High Court, Mr O’Higgins said the two separate issues of assessing bail and fixing sureties had “morphed into one and became an issue of a flight risk”.
Mr Justice Birmingham pointed out that some bail applications depend on a “suite of arrangements that can be put in place” and said “perhaps this is one such case”.
Commencing the bail application, Mr O’Higgins submitted that the suggestion his client was caught “red-handed” at the scene was “a gross mischaracterisation” of what had occurred and what the investigation unearthed.
The barrister said any “fair reading” of Mr Phelan’s account was that he had shot Mr Conlon by accident and it could never be characterised as being caught “red-handed”. “The way the [bail] case was brought was unfair and was something heavily taken up by the judge,” he added.
Mr O’Higgins argued that his client was a man in his mid-fifties who had never “put a foot wrong” and it could never be suggested that he woke up that day with the intention of shooting anyone. Mr Phelan, whose position is that he accidentally killed someone, was being asked to spend three years in custody and if this happened then everything he has worked towards would “evaporate” and have “far-reaching” consequences, submitted counsel.
Backlog
At the original bail hearing, counsel argued that due a backlog of cases, his client could be in custody for two to three years before he is returned for trial.
Referring to Ms Justice Murphy's judgment which refused bail in the High Court, Mr O'Higgins said she had consulted sources "outside the evidence" and from a "tertiary source" namely company accounts in Northern Ireland, which should have been "alerted" to parties. "She said it wasn't pivotal to the decision; it was. How often is it said to juries to concentrate on the evidence in the case and don't go to other sources. The work done by the judge over the weekend was sprung on us without notice," he complained.
Before delivering her decision last month Ms Justice Murphy informed counsel that 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 had previously 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".
Mr O’Higgins said if the case was being made that Mr Phelan worked all over the world and had “very wide international contacts” which would make his relocation a bit easier, then it needed to be “thrashed out logically in court”.
Counsel also said it was missing from the High Court judgment that his client had contacted emergency services, got First Aid, guided gardai to the location and told gardai that he shot Mr Conlon. “All this is not referred to and if the court is taking it upon itself to make an assessment on the strength of the evidence, it is bound to do so in a way that is rounded, representative and fair. This particular resume doesn’t meet that standard,” he submitted.
At one point, Mr Justice Birmingham said if there was ever a case where full disclosure was required then this was such a case.
Mr O’Higgins said there was an element of trust for bail to be granted and Ms Justice Murphy had taken a view that the trust in this case “was zero” and it was immaterial whether one lived as a law abiding citizen. “I’m saying as a matter of legal principle that is an erroneous approach,” he said.
“This isn’t Roman Abramovich, if someone makes an allegation against you, you don’t have all your assets frozen. It’s trust and verification,” continued counsel.
The lawyer submitted that “work” done outside the context of an adversarial hearing had been visited on his client. “The idea that he is desperate is not established on the evidence and I don’t know where that is coming from. Charges are laid against people everyday and they don’t find themselves in despair,” he continued.
In her judgment, Ms Justice Murphy said the court disagreed with a submission by Mr O’Higgins that Mr Phelan had a greater understanding of bail obligations than the majority of the population because of his “illustrious career”. “People who find themselves in desperate situations will be tempted to evade the consequences,” she added.
Mr Justice John Edwards asked the lawyer if he had suggested in the High Court that his client’s life would be ruined if he did not attain bail. “If he can’t lecture his employment contract is gone, that steady income is gone, his standing is gone. To maintain his assets you need the machine turning. He needs cash flow to sustain him and will lose the cash flow,” replied counsel.
“The farms all cost money to keep going, if he’s in jail it’s not just the grass that is growing on the farm,” he added.
During the High Court bail application, Mr O’Higgins claimed his client would be “completely and utterly ruined” and his “life’s work wiped out” if the application was turned down.
Mr Justice Birmingham asked counsel if there was a specified period as to when Mr Phelan’s contract with Trinity would be in jeopardy. “I don’t know, Trinity has written to him saying for now they are holding the line,” said Mr O’Higgins.
Unfair
In summary, Mr O’Higgins said that what happened in the High Court and the manner in which the decision was reached was unfair. “The number of links in the chain led to a particular result and the links in that chain were not established. When one comes to court as a person of some standing that’s a link in the chain and it’s called trust,” he said.
In reply, John Fitzgerald SC for the State said it formed no part of the High Court judge’s ruling that Mr Phelan was caught “red-handed” and it would be for a jury to determine the facts of the case.
Referring to the issues or factual matters elicited from the judge's private research, Mr Fitzgerald questioned as to whether there was any real unfairness as he submitted that the information had been "drip-fed" by the applicant.
Mr O’Higgins informed the three judges that his client proposed an independent surety of €50,000 and a cash lodgement of €50,000.
Mr O’Higgins then called his client’s solicitor Mr Greg Ryan of Greg Ryan Solicitors to take the stand. Mr Ryan testified that he knew Mr Phelan for many years in both a personal and professional capacity and did some of his conveyancing work.
When asked how the ownership of the applicant’s farms were set up, Mr Ryan said that a number of properties were comprised in different folios and the properties could be frozen so they couldn’t be transferred.
Mr Ryan agreed with Mr O’Higgins that he proposed the accused could be bailed to the solicitor’s own home residence. The witness agreed that he had given thought to this and said the accused was a “very honourable man”.
The applicant’s sister, Emer Phelan, took the stand next and told Mr O’Higgins she was willing to put herself forward as surety for her brother in the amount of €50,000. “It is monies from myself and our sister,” she said.
Mr O’Higgins put it to the witness that if Mr Phelan does not comply with the bail conditions, the most important one being turning up for his trial, then the State may apply to take those monies. “I have no fear that he will not turn up or that he will flee,” she replied.
Under cross-examination, Mr Fitzgerald reminded Ms Phelan that she had been asked in the High Court as to her ability to take over paying for her mother’s private homecare and her answer was “no, not the slightest”. The barrister put it to her that there was no indication at that time that €50,000 was available to her. “We had €30,000 at that time but we have put together more now,” she said.
In conclusion, Mr O’Higgins said there was an element of unfairness in how the bail application was dealt with in the High Court to what he characterised as the “red-handed proposition”, the Section 2 approach and the inquisitorial element.
“Mr Kearney, Mr O’Reilly and Mr Lillis all got bail and all attended trial and did so without the onerous obligations that have been placed on my client. That’s not a complaint, that’s just an observation,” he said.
Mr O’Higgins said his client was “dead in the water” if he had to return to the High Court in a few months and reapply for bail.
Mr Justice Birmingham, who sat with Mr Justice John Edwards and Mr Justice Patrick McCarthy, said that was as far as they could take the bail application today and would give further time to it on Thursday. “The only basis which there is any point in doing that is if a comprehensive financial statement [is provided] with assets and liabilities, all sources of income in recent years and details of any property in this jurisdiction or outside it. It would have to be on the basis of maximum disclosure,” said the Court President.
The High Court heard last month that a witness told gardai 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.
The court heard, however, that Mr Phelan told gardai in interview that he accepted he shot Mr Conlon with the licensed firearm but believed he was under threat and was “terrified” at the time.
The High Court also heard 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 gardai that the senior lawyer 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 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 left “stunned” by Mr Conlon’s injury.