A ballistics expert has told the trial of a law professor who is accused of murdering a trespasser on his farm that there are "inherent dangers" when firing a warning shot from a firearm as there is always a danger it will travel and hit someone.
The expert also agreed that factors on the day of the shooting, such as the farm terrain, the movement of the trespasser and the accused's state of mind, would negatively affect the ability to aim and control a firearm.
Evidence has been given that leading barrister Diarmuid Phelan had shouted at two unarmed trespassers on his farm to "get back" before he fired three shots from his Smith & Wesson revolver.
It is the State's case that two of the three shots were fired into the air and the third shot connected with father-of-four Keith Conlon.
In her opening speech, 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.
Mr Phelan (56) has pleaded not guilty to murdering Mr 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.
In cross-examination for a second day, Sean Guerin SC, defending, put it to ballistics and forensics investigation Detective Garda Seamus O'Donnell that the jury may think it's a "remarkable thing" for a farmer to have a handgun, but this isn't necessarily the case.
The detective said there are thousands of long-arm licence holders across the country with the majority of them having rifles and shotguns and some with handguns.
Mr Guerin said the IFA are currently advertising a firearm proficiency course for farmers for 2025.
The barrister said it was a government-funded course and successful participants are awarded certs for rifles, pistols and shotguns once their training is complete.
The lawyer put it to the witness that training for the tactical use of firearms is very different to the use of firearms on a farm and for recreational purposes.
The detective said it is arguably more complicated as there are more factors involved and movement can be a big issue. He agreed the whole point of tactical training is that there isn't much time for reflection.
Counsel reminded the witness he had said movement was a key feature but when he tested the accuracy of the Smith & Wesson revolver at a target range, he had been aiming at a target that wasn't moving.
The witness agreed the target range was his work environment which he was completely familiar with, that he was completely comfortable and that no one was there who shouldn't have been.
He went on to agree that he was not moving between discharging rounds, had discharged them in his own time and that the ground under his feet was even and smooth.
The detective said he had been discharging shots under controlled circumstances, agreeing with counsel that what happened on Hazelgrove Farm was very different from range and competitive shooting.
Mr Guerin said the jury had heard a change in the accused's tone when the accused rang 999 and that a situation of confrontation had presented itself with trespassers on the farm who had told the accused "you're f**ked, this isn't the end of it". The witness agreed it was a completely different situation to firing on the range.
The witness also agreed the movement of Mr Conlon towards the accused was completely different to aiming at a fixed target.
He also agreed that the accused's state of mind of being terrified at what was happening bore no resemblance to his state of mind when test firing the revolver.
In summary, Mr Guerin put it to the witness that as an experienced ballistics officer part of his living was to regularly discharge firearms. "Would you accept that each of the factors I outlined would have a negative effect on controlling the firearm?" asked counsel.
The witness said the circumstances were different to the one he had found himself in whilst carrying out tests on the range.
Mr Guerin added: "Not just different, you're an experienced ballistics officer. You can see how each of these factors would negatively affect your ability to aim and control a firearm?". The witness said he agreed.
In re-examination, the witness told John Byrne SC, prosecuting, he had found nothing that would cause him to be of the view that the revolver would shoot off target regardless of the shooter when he test fired it. "I found it was on target marginally low," he added.
Counsel told the detective that the proposition was put to him by Mr Guerin that firing a warning shot with a rifle was far more dangerous than firing one with a revolver. "Are there inherent dangers firing a warning shot from a firearm irrespective of what the firearm is?" asked Mr Byrne. The witness said there was.
"What can you say about the dangers in the context of the direction of warning shots fired?" asked the barrister.
In reply, the detective said: "There's always a danger that whatever the projectile is, shot shell or bullet, that instead of it just being a warning, it will travel on and hit something or damage property".
"Or someone?" asked Mr Byrne. "Yes," replied the witness.
Mr Byrne commented that when a bullet is fired in the air it goes up and has to come back down. "It has to land somewhere ....it runs the risk of striking something you didn't intend".
In her opening address Roisin Lacey SC, prosecuting, said the jury will hear evidence that on the day in question three men including Mr Conlon had trespassed on a wooded area of Mr Phelan's land while hunting foxes or badgers.
Ms Lacey said that Mr Phelan told gardai he became concerned about a dog running loose on his land towards his sheep and shot it with his Winchester rifle, whereupon he said three men immediately "exploded" from the wooded area and began threatening him.
The 12 jurors were also told by the State 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.
Mr Conlon, from Kiltalown Park in Tallaght, was seriously injured in the shooting incident on February 22 and died at Tallaght University Hospital two days later.
The trial continues on Monday before Ms Justice Siobhan Lankford and a jury of nine men and three women.
