An assault charge against barrister and law professor Diarmuid Rossa Phelan has been struck out by a judge, who said the 56-year-old would not get a fair trial.
Mr Phelan was accused of assaulting Kevin McHale on his farm in Wexford in August 2021, six months before he was charged with murdering a man trespassing on his land in Dublin.
He was acquitted of murdering 35-year-old Keith Conlon at Hazelgrove Farm, Kiltalown Lane, Tallaght in Dublin earlier this year.
Judge William Aylmer was asked to dismiss the assault causing harm charge because of delays in bringing the case to trial and the absence of potentially critical evidence
Justin McQuade, BL, said the alleged assault happened on 26 August 2021 but Mr Phelan was not notified of a complaint until 15 December 2021 when Garda John Coughlan texted him.
Mr McQuade said potentially critical video evidence was not available to exonerate Mr Phelan because he had not been notified of the complaint in time.
Mr McQuade said a previous allegation made by Mr McHale's wife in 2016 was proven to be false after gardaí viewed dash cam footage.
Mr Phelan had denied assaulting his neighbour on 26 August 2021, saying he was acting in self defence.
Garda Coughlan said he visited the home of Mr McHale in Reedstown, Tacumshan on the evening he alleged he had been assaulted by Mr Phelan.
Mr McHale received medical treatment after the alleged assault.
Garda Coughlan agreed that Mr McHale had relatively minor injuries.
The court heard that a dash cam on Mr Phelan's car could have captured what had happened but by the time Mr Phelan was told of the complaint the footage had been overwritten.
Garda Coughlan blamed the delay in notifying Mr Phelan on his work load and involvement in a number of other unrelated investigations at the time.
He said that in hindsight he should have notified Mr Phelan sooner about the allegation.
Mr Phelan gave evidence saying the assault proceedings have been very stressful, adding to the stress of the murder trial which he said was "very traumatic" and "horrific".
"The two were interwoven from the bail application", he said.
The day after Mr Phelan was charged with the murder of Keith Conlon, Garda Coughlan made a statement about the assault causing harm allegation and sent a file to the DDP the following day.
Mr Phelan said the first he heard that he was being charged with assaulting Mr McHale was during the bail hearing in the High Court in Dublin for the murder charge.
He told the judge he thought the matter was over after meeting and discussing it with Garda Coughlan the previous December.
The court heard there had been numerous complaints about trespassing and interfering on the land dating back years, which resulted in an agreement about the boundary between the two properties in 2014 and the erection of a fence.
Giving his judgment today, Judge Aylmer said Garda Coughlan had been told there was a possible footage of the alleged assault but did not seek to obtain it.
"As a consequence it is not available to the accused to use at trial as evidence to support his defence," he said.
The judge said Mr Phelan did not become aware he was facing criminal proceedings, only learning of this during cross examination in the High Court sitting in Cloverhill.
He said as a consequence of not having the footage, which he said Mr Phelan would say confirms he was acting in self defence, it was not possible for him to have a fair trial.
The judge struck out the case.
