A FORMER soldier is to stand trial on a charge arising from the death of a vulnerable man shot dead by the army more than four decades ago.
Dennis Hutchings, who is now 76, was excused from attending Belfast Crown Court yesterday, where a senior judge gave his ruling on a 'no bill' application lodged by the ex-soldier's legal team and revealed the case against the pensioner will proceed.
He is expected to return from England to Northern Ireland later this week when he will be formally charged with attempted murder.
The charge against Hutchings, from New Road, Cawsand, Torpoint in Cornwall, arises from the death of 27-year old John Pat Cunningham, who was shot in the back by the army in a field on the outskirts of Benburb in June 1974.
Mr Cunningham was described in court as an innocent, vulnerable and unarmed man who had a fear of people in uniform, including soldiers, policemen and priests. He was fatally wounded in a field on Carrickaness Road, as he ran away from soldiers who stopped their Land Rover in the area and followed him into the field.
During the 'no bill' hearing earlier this month, the court heard two soldiers - Hutchings who in court was described as Soldier A, and a second man referred to as Soldier B - fired their SLR rifles during the incident, and that a total of five shots were discharged.
It has never been established who fired the fatal bullet that hit Mr Cunningham in the back, and it is this point that prompted Hutchings legal team to argue that "no reasonable jury could convict" either Soldier A or or the now deceased Soldier B.
However, it is the Crown's case that Hutchings - who was in charge of the army patrol that day - fired three shots, and that he failed to give a correct warning to the fleeing man.
Accepting the case against Hutchings was "circumstantial", Mr Justice Treacy said that after "careful consideration" of the arguments made by the Crown and defence, and having "closely reviewed" the case, the evidence disclosed indicated a case sufficient to justify putting the defendant on trial for the offence of attempted murder.
He added he was satisfied a reasonable jury could, during the course of a trial, reach an adverse inference that Hutchings intended to unlawfully kill the deceased.
Ian Turkington, representing Hutchings, revealed he will be launching Judicial Review proceedings in a bid to allow the trial to be held with a jury - and not a Diplock non-jury trial.
Hutchings will be formally arraigned on Friday.
