A plea was made in the Court of Criminal Appeal yesterday to give a man who has served 18 years of a 40-year sentence for the murder of a Garda sergeant one last chance to try and overturn his conviction.
The court was urged to refer to the Supreme Court points of law arising from the appeal court's earlier refusal of an application by Noel Callan aimed at re- opening matters arising from his conviction in 1985 for the capital murder of Sgt Patrick Morrissey.
Mr Vincent Browne, for Callan, asked the judges not to allow "technical" matters and legal mistakes to prevent the re- opening of the case.
"It would be profoundly unfair for him to serve another 22 years in jail because mistakes were made," counsel said.
He said the Criminal Procedure Act 1993, under which he wanted to reopen Callan's case, had been enacted by the Oireachtas because of great public anxiety about miscarriages of justice and the need for procedures to remedy those.
Because Callan's co-accused had gone "way outside" the parameters of a common design to commit robbery, Callan had already spent 18 years in jail, and, unless the Court of Criminal Appeal allowed him to go to the Supreme Court, he would serve another 22.
The court should look to the situation Callan was in in 1985. He was "scared out of his wits", facing a capital murder charge, and was in custody in Portlaoise Prison under extraordinary duress. His hands were tied and he was unable to advance all of the issues related to whether he was guilty or not.
Mr Browne applied to the three-judge court to refer to the Supreme Court points of law arising from the appeal court refusal in December last to allow Callan reopen his case on grounds that newly-discovered facts had come to light.
After hearing submissions yesterday, Mr Justice McCracken, presiding, said the court would reserve its decision.
Callan (39), of Cullaville, Castleblayney, Co Monaghan, was convicted at the Special Criminal Court in 1985 of the capital murder of Sgt Morrissey (49). Sgt Morrissey was shot dead on June 27th, 1985, at Rathbrist, Tallanstown, Co Louth, following an armed robbery earlier that day at Ardee labour exchange.
Yesterday, Mr Browne asked the Court of Criminal Appeal to certify that there were points of law involving matters of such exceptional public importance raised that these required to be determined by the Supreme Court.
He said there was some confusion about some matters when the initial application was made to the court.
The court had been misled in relation to the issue of duress against Callan. Duress had continued up to Callan's appeal against conviction because his co-accused had made it known within Portlaoise Prison his intention to appeal his conviction although no appeal was in fact initiated for several years.
Callan's co-accused, Michael McHugh, of Clonalig, Crossmaglen, Co Armagh, was also convicted of capital murder.
Both were sentenced to death for capital murder, but the sentences were later commuted to 40 years' imprisonment.
In December, lawyers for Callan asked the court to admit newly-discovered facts in the case which would allow the case to be reopened under the Criminal Prosecution Act.
It was argued the newly-discovered fact was an absence of common design to kill Sgt Morrissey. However, because Callan was under duress from INLA and IRA prisoners in Portlaoise Prison coming up to his trial, it was argued, he felt unable to argue that point, and had instead given perjured evidence denying any involvement in the robbery or any common design.
He now wanted to make the case that there was a common design to commit robbery and to use firearms to disable any pursuer, but that the common design did not extend to the murder of Sgt Morrissey.