The State appears to have suggested that even people of means should make legal aid applications, which a barrister for law professor Diarmuid Phelan has argued is “entirely contrary” to the spirit of the scheme.
A judge will give her ruling in September as to whether the State should pay the “enormous” legal costs for Mr Phelan following a trial that ended last January. Mr Phelan was acquitted by a Central Criminal Court jury of murdering a trespasser on his farm.
The costs issue was raised on Thursday evening, on the last day of the Trinity term, before Ms Justice Siobhan Lankford.
Law lecturer Mr Phelan, who has assets valued in the millions, instructed two senior and two junior counsel at his trial and did not receive legal aid. He also called expert witnesses who gave evidence following the close of the prosecution case.
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Mr Phelan (56) went on trial in October 2024 after he pleaded not guilty to murdering Keith “Bono” Conlon (36), a father of four, at Hazelgrove Farm, Kiltalown Lane, Tallaght, Dublin 24 on February 24th, 2022.
Mr Phelan is a barrister, law lecturer and farmer who owns Hazelgrove, formerly a golf course.
Opening the application on Thursday evening, Sean Guerin SC, who was one of two senior counsel representing Mr Phelan at his trial, told Ms Justice Lankford that the starting point - and also expressly the most important consideration - in awarding costs was the verdict.
Counsel submitted Mr Phelan was entitled to his costs and the onus was really on the prosecution to show why he shouldn’t succeed in the application.
Mr Guerin said one of the prosecution’s submissions was that Mr Phelan had the option of applying for legal aid but had chosen not to do so.
The barrister said the State appeared to be suggesting that even people of resources should make a legal aid application, which he suggested was a complete misunderstanding of what the scheme was.
Opposing the application, John Byrne SC, for the Director of Public Prosecutions (DPP), argued there was no presumption in favour of costs and one cannot simply say they had been acquitted so were entitled to their costs. He said a more complex and nuanced inquiry was required by the trial judge.
Ms Justice Lankford asked both parties to articulate their views if she decided to award Mr Phelan his costs but confined it to legal aid costs. She noted there was quite a wide discretion in case law, where 50 per cent of costs had been awarded to applicants.
Mr Guerin told the judge there was no warrant for doing so as those weren’t the costs his client had incurred. He said legal aid was not a guide or a measure as to what are the appropriate costs in a case.
Mr Byrne said the discretion seemed to be very wide and awarding legal aid costs was not something the court couldn’t do, provided it set out the basis for it.
Ms Justice Lankford said she hoped to deliver the court’s judgement in September.
