A leading barrister accused of murdering a father-of-four in a fatal shooting on farmland in Tallaght has been told by the President of the Court of Appeal that he left a High Court judge "totally in the dark" in regards to his financial affairs when applying for bail.
Mr Justice George Birmingham made the remark on Thursday in relation to senior counsel and law lecturer Diarmuid Rossa Phelan's bail application in the High Court last month, which was rejected by Ms Justice Deirdre Murphy on the grounds that he is a serious flight risk.
The Associate Professor of Law at Trinity College appealed the decision by the High Court not to grant him bail to the Court of Appeal on Tuesday and the matter was adjourned until Thursday.
Last month, 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 in the event of a conviction and alleged 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.
On Tuesday of this week, the Court of Appeal President, Mr Justice 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.
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 22 last. Mr Conlon, from Kiltalown Park in Tallaght, was severely injured in the shooting incident and died at Tallaght University Hospital two days later.
At the outset of Thursday's resumed bail hearing, Mr John Fitzgerald SC for the State said he had received the applicant's financial statement at 5pm yesterday evening and an amended version before 11pm last night and needed time to go through it.
Mr Fitzgerald asked the three-judge court to list the matter for the second day of next term. "We will write to the defence and hopefully by the time we come back [after the Easter break] we will know where we stand," he said.
In reply, Mr Karl Monahan BL, for Mr Phelan, said a comprehensive statement had been compiled of his client's assets and liabilities and there was considerable disclosure in the document.
Mr Monahan said that his client proposed an independent surety of €50,000 [from his sisters] and a cash lodgement of €50,000. "Were he to flee, which he has no intention of doing, that would be a deep betrayal of his family," said counsel.
Mr Justice Birmingham said that when someone calls on family members to provide a surety that "usually presents itself as an argument in favour of the applicant as it would provide an incentive to remain [within the jurisdiction]". Mr Monahan informed the court that the largest amount of bail fixed in the State to date was €100,000.
Counsel said his client was obviously "very anxious" to secure his liberty and for the Court of Appeal to determine the bail application. Mr Justice Patrick McCarthy asked Mr Monahan if he was opposing the adjournment application.
"I'm opposing the proposal that the matter be adjourned to next term and I'm asking the court to put the matter in for tomorrow," replied Mr Monahan.
Mr Justice Birmingham pointed out that at least one member of the court would not be in the jurisdiction next week and the court would look at what options there were.
The Court's President told Mr Monahan that part of the problem rested on his "side of the house". "I don't believe the bail application before the High Court was presented in a way that the High Court would have expected," he said.
Mr Monahan said there was a wide practise for such financial statements not to be required. "Even if that was so, one could have anticipated that the court would need to know about Mr Phelan's assets, liabilities and expenditure and no information of any substance was put forward," said Mr Justice John Edwards.
Mr Justice Birmingham said information would be required if bail was being afforded to Mr Phelan and stressed that the High Court judge had been left "totally in the dark". "She ended up saying if further information was provided" then the court might look at the applicant in a different light, he added.
Mr Justice Birmingham said the Court of Appeal was now seeing "the material" at this time, that they had "very unusually" heard evidence from witnesses on Tuesday and the State needed time to consider the financial document.
After the court rose for a few minutes, Mr Monahan said he needed to appraise the three judges with information before it delivered any ruling.
"In so far as there is criticism of a failure to put my client's assets before the High Court adequately, my solicitor did seek to bring Mr Phelan's personal laptop into prison. The prison's position is that a prisoner's laptop cannot be brought into prison and that presented a difficulty," said Mr Monahan.
Also, counsel said that none of Mr Phelan's financial arrangements could have been put in place in contemplation of the charge and the best his client could do was estimate the values in his bank account.
Mr Justice Birmingham said he would list the matter before the Court of Appeal for tomorrow afternoon. "If the State come in tomorrow afternoon and say that having made reasonable and proper efforts they are not in a position to deal with the matter, we will hear what they have to say. We do urge the State to make every possible effort to get to grips with the document being provided," he continued.
The Court President said if the matter had to be put back tomorrow, then it would be adjourned until the second day of next term. "That's the fallback position," he concluded.
The High Court heard last month that a witness told gardaí 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 gardaí 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 gardaí 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.
Defence Counsel, Michael O'Higgins SC, told the court that the tenor of Mr Phelan's statement to gardaí 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.