A man who has served 25 years of a 40 year sentence for the murder of a Garda Sergeant during an armed robbery in 1985 has claimed his sentence was unlawfully commuted by then President Patrick Hillery, acting on the advice of the government, when it should have been fixed by a court.
Noel Callan (47), Cullaville, Castleblayney, Co Monaghan, also argues he has unlawfully been deprived of a right of remission, which could reduce his 40 year term by up to one third.
The fact his original death sentence was commuted to 40 years on the “understanding” he would serve that full term amounts to unequal and unfair treatment, he claims. Other persons convicted of the murder of gardaí after passage of the Criminal Justice Act 1990 can seek remission, the court heard.
A May 29th 1986 document, signed by then President Hillery, commuted Mr Callan’s death sentence to one of penal servitude for 40 years but contained no reference to any “understanding” there would be no right of remission, Deirdre Muprhy SC, for Mr Callan, argued. Any such “understanding” was “of no legal effect”.
Mr Callan was in court yesterday and will give evidence in the case which has been adjourned to Monday next by Mr Justice Michael Hanna to allow the pleadings be amended to formally make the case the 1986 document places no ban on remission. Paul O’Higgins SC, for the State, had argued he needed time to respond to that point.
Outlining the case earlier, Ms Murphy said Mr Callan was aged just 22 when convicted by the non-jury Special Criminal Court in December 1985 of the capital murder of Sergeant Patrick Morrissey (49) at Rathbrist, Tallanstown, on June 27th 1985 following an armed robbery the same day at Ardee Labour Exchange.
This was “a particularly gruesome murder” in which Sgt Morrissey was initially wounded by Mr Callan’s co-accused Michael McHugh, Clonalig, Crossmaglen, Co Armagh, who then went back and “executed” him, Ms Murphy said. Her client accepted he was part of a common design in relation to a robbery but was not in the vicinty when Sgt Morrissey was shot.
Mr Callan’s father had died when he was aged just 16 and his mother died of cancer two years later, when he was aged 18, counsel said. Mr Callan, “alone and immature”, came under the influence of McHugh, an older man, and was persuaded to get involved in the robbery. He was not trying to diminish the seriousness of what was done, counsel added.
While Mr Callan acknowledged he gave perjured evidence at trial, this was in circumstances where he was a young man of 22 on the INLA wing in Portlaoise Prison with a co-accused who had affiliated to the INLA and was “intent on pleading not guilty”, Ms Murphy said. The court would hear of “the atmosphere that prevailed in 1985”.
Both men were sentenced to death for murder but their sentences were later commuted by the President to 40 years penal servitude. They also received 12 year sentences for the robbery.
Mr Callan has now served 25 years in Portlaoise Prison and is “worthy of remission”, Ms Murphy said. He was of “exemplary behaviour” as stated in a memo from the Prison Governor, had completed many educational courses and is studying for an Open University law degree.
In his proceedings, Mr Callan claims the commutation of his sentence by the President, three days after receiving a memo from the government, was a sentencing exercise carried out in secrecy in breach of his rights under the Constitution and European Convention on Human Rights to have a sentence imposed by a court. The sentence was in effect imposed by the government in breach of the constitutional separation of powers and “entirely invalid”, Ms Murphy said.
Mr Callan also contends his fundamental personal rights under the Constitution and ECHR are superior to the provisions of Article 13 of the Constitution which provides the President is not answerable to the Oireachtas or courts for the exercise and performance of the powers of his/her office.
The sentence was imposed without regard to his particular level of culpability for the offences, his prospects for rehabiliation and where there was no right to be considered for parole, early release, or review, he claims.
Mr Callan was previously refused discovery of documents as to how the decision to commute his sentence was arrived at, the court heard.
