A man serving a 40-year sentence for the capital murder of a Garda sergeant - who was shot dead after a robbery in Co Louth in 1985 - has lost an attempt to have his case reopened.
The Court of Criminal Appeal yesterday held that Noel Callan had not raised a point of law of exceptional public importance, which required to be determined by the Supreme Court, arising from the CCA decision last December refusing him leave to reopen his case.
It said Callan appeared to be trying to raise completely new points of law which had not arisen from the judgment of the CCA. Mr Justice McCracken, giving the judgment of the three- judge CCA, said it also did not consider it to be in the public interest that Callan should be permitted to use his own criminal behaviour in committing perjury at his trial to be the basis of an appeal to the Supreme Court.
Callan (39), of Cullaville, Castelblayney, Co Monaghan, was convicted in 1985 of the capital murder of Garda Sgt Patrick 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. His co-accused, Michael McHugh, of Clonalig, Crossmaglen, Co Armagh, was also convicted of capital murder.
Both were sentenced to death but the sentences were later commuted to 40 years' imprisonment. They also received 12-year sentences for the robbery.
The Special Criminal Court said it was clear whoever fired the fatal shot intended to kill or seriously injure Sgt Morrissey. The evidence established that two men wearing combat jackets, balaclavas and carrying guns had stolen £25,000 from the labour exchange and escaped in the manager's car. Sgt Morrissey had followed the men into the grounds of Rathbrist House and was shot there. The SCC found there was an appreciable time between the firing of the first shot which had wounded the sergeant and the second, fatal shot.
In December 2002, the CCA refused to allow Callan reopen his case. The original grounds advanced related to a claim by Callan that statements attributed to him of which evidence was given at trial were not in fact his statements. Callan later sought to amend those grounds and to argue that, because of pressures exerted on him in Portlaoise Prison at the time of trial and appeal, he had failed to make the case he now wished to argue. This case was that he had been part of a common design to commit robbery but the common design did not extend to the killing of Sgt Morrissey.
Mr Vincent Browne, for Callan, then applied earlier this month to the CCA to refer points of law arising from its decision to the Supreme Court. Refusing that application yesterday, Mr Justice McCracken, said the first proposed point of law advanced - that Callan was unable to advance the defence he wished to raise because of pressures put on him at Portlaoise Prison - did not arise from the CCA judgment.
The second proposed point of law was whether the CCA was correct in determining Callan was barred from pleading an absence of common design to commit murder because he had, under duress, given evidence at his trial and appeal that precluded him from adducing such an absence of common design.
Mr Justice McCracken said the CCA had made no finding that Callan was under duress and noted Callan had argued absence of common design at his appeal, although on a different set of facts. This proposed point of law was not argued before the CCA and not decided by it.
The third proposed point - whether the CCA was correct in finding coercion was not a reasonable explanation for Callan's failure to adduce evidence of such coercion at his trial and appeal - also did not arise from the CCA's judgment and showed the same misunderstandings as to what was argued at the December hearing, the judge added.