A dog warden has told the trial of law professor Diarmuid Phelan that farmers are "perfectly within their rights" to shoot loose dogs on farms when they are "worrying sheep" and it is not "an inappropriate response".
Mr Phelan, who denies murdering a trespasser in a fatal shooting at his farm, told gardaí in his interviews that he had seen a dog "apparently alone and loose" on his lands, which he shot at as he thought it was a risk to his sheep.
The accused said if there was no threat he would not have shot at the dog, but he had a "split second" to make up his mind.
When officers put it to the leading barrister that the Lurcher dog he had shot was tied up, Mr Phelan replied: "To me he wasn't visibly tied up.”
The accused told detectives that he was terrified when three men then "exploded" out of bushes "screaming and roaring" at him and began "effectively threatening" him about who had shot their dog.
The defendant told detectives that he had shouted at the men to stay back, but they "kept coming" and he believed they were "coming to fulfil the threats they had made".
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 in Tallaght.
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.
Trespassing
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.
The defence called further witnesses to testify in the case on behalf of Mr Phelan on Tuesday.
A dog warden for South Dublin County Council told Michael Bowman SC, defending, that on occasion he had come in contact with incidents where dogs have attacked sheep on farms.
Mr Bowman put it to witness Phillip Behan that dogs also "worry sheep", which is the biggest problem. The witness said dogs chase sheep and if a ewe is in lamb they can abort.
"The dog doesn't need to touch the sheep for this to happen?" asked Mr Bowman. The dog warden said it's "the worrying and threatening the life of the sheep and the sheep goes into fear of his life".
The witness agreed that the terrier breed is great to chase or pursue sheep and can lock onto their hind legs. "If you get a pack of dogs, smaller dogs would hold and slow down the sheep and the larger dog would come in and finish off the sheep," he added.
Mr Behan agreed that certain dogs are bred for hunting such as lurchers and greyhounds. He said a lurcher can be bred with a pit bull terrier for speed and aggression.
Mr Bowman put it to the witness that the view is farmers are perfectly within their rights to shoot dogs on their land. Mr Behan said once the dog is worrying sheep, the farmer has a right to shoot the dog if there is no other option, and they see the dog is "free". He said the instant of discharging the firearm must be reported to gardaí.
"If you believe the dog to be free, they are within their rights?" asked counsel, to which the witness agreed.
Mr Bowman put it to the witness that the concern is a dog "can cross the land". He said a lurcher or a greyhound can "go 500 yards within 30 seconds".
He agreed it was not an inappropriate response to shoot a loose dog in those circumstances.
The witness also agreed that illegal hunting can occur and that badger baiting is illegal.
IFA protocol
Mr Behan said he got a call last September that an XL Bully dog had come onto a farmer's land, a field away from the accused's farm. The witness said the farmer had no option but to shoot the dog, as when the farmer went to try and apprehend it, the animal "went for him".
The witness said he was also informed about an incident in March last year where a dog got into a farmer's field, killing 31 sheep and causing 34 to abort.
In cross-examination, John Byrne SC, prosecuting, put it to the witness that there is IFA protocol for farmers to shoot dogs who are worrying sheep and there is a requirement under legislation. Mr Behan said legislation gives the option to do it but the first option is to catch or seize the dog. He said the dog only has to be in the vicinity of where the sheep are. He agreed that in order for the dog to be worrying sheep the dog had to be loose.
The next witness, Dr Paddy Sleeman agreed with Mr Bowman that his expertise focused on badgers. He was shown photos of a badger sett as it presented on the accused's land in February 2022 and said he had visited the farm last month.
He said it was a main sett with 22 entrances, five of which were extremely active, indicating it was occupied. He said it had been at that location for some time and thought it contained around five badgers.
One hole was of human origin, he said, and was typical of a “crowning downhole” made by hunters.
The witness told the jury that after hunters identify "the tell tale signs" of an active sett, they send an electronically tagged dog with a transmitter attached to its collar down an entrance to trap the badger underground.
The dog is trained to attach itself to the badger and the person with the transmitter then knows the dog has been successful. The hunter is able to locate the badger underground and digs down into the tunnel. He said the crowning of the hole facilitates the retrieval of the dog.
Mr Sleeman said badgers are “fully protected” under the Wildlife Act. He said their setts run for kilometres underground and they were of vast ecological importance. He said killing a badger has a risk of spreading tuberculosis.
Badgers, the court heard, are fully protected from hunting or interference on both sides of the border but are still “persecuted.” He said people are still prosecuted for killing badgers.
In cross-examination, Dr Sleeman told Roisin Lacey SC, prosecuting, that he had given evidence about the "tell tale signs" of an active badger sett on foot of a visit to the accused's farm in October but was not there in February 2022.
In re-examination, the witness told Mr Bowman that the crowning down hole had been dug in February 2022 and was an active badger sett.
The trial continues tomorrow before Ms Justice Siobhan Lankford and a jury of nine men and three women.
