A senior judge has rejected a legal application to have a case against a man accused of murdering two Catholic workmen dismissed.
James Stewart Smyth is standing trial on five charges arising from the May 1994 murders of 24-year old Gary Convie and 41-year-old Eamon Fox.
The electricians were working on a building site in the Tiger’s Bay area of Belfast and were sitting in a Vauxhall Polo eating lunch when the car was riddled with bullets fired from a gunman standing in an adjacent children’s playground.Smyth - a 57-year old former member of the UDR from Forthriver Link in north Belfast - is alleged to have been the gunman.
As well as denying the murders of Mr Convie and Mr Fox, Smyth has also denied the attempted murder of a third workman on the same date.
He has also denied possessing a Sten sub machine gun and a quantity of ammunition with intent, and of being a member of the UVF.
The non-jury trial commenced at Belfast Crown Court last October and during the hearing, Mr Justice O’Hara was told that Smyth’s DNA was located on the collar of a jacket.
This Barbour coat and the murder weapon were located in a sports bag which was found in a derelict house close to the murder scene 11 days after the workmen were killed.
Also called to give evidence was former UVF chief turned supergrass Gary Haggarty, who claimed he was involved in the plot to murder the workmen.
From the witness box, Haggarty claimed Smyth - who went by the nickname Jimmy Shades - shot the workmen with a Sten sub machine gun then fled across the playground shouting ‘Up the UVF’.
Haggarty also told the hearing that before Smyth opened fire, he wished him luck and that after the murders, Smyth was “unhappy” that he didn’t kill a third workman in the car.
In the aftermath of the double murder, Haggarty informed his handlers about the presence of the murder weapon and the Barbour jacket worn by the gunman.
After the Crown concluded its case in December, Smyth’s legal team launched a ‘no case to answer’ application on the grounds the case against him was “deeply flawed” and “weak.”
Defence barrister Michael Borrelli KC suggested Haggarty may have been motivated at the time to provide Smyth’s name as he was a person of interest to Haggarty’s Special Branch handlers.
Another suggestion put forward by Mr Borrelli was Haggarty pointed the finger at Smyth to “go against others” in the UVF.
Mr Borrelli also raised the issue of statements made by eye witness to the gun attack.Saying Smyth was a “notably short man” whose height was “five foot four and a half”, the defence KC pointed out one witness described the gunman as being “tall and skinny” whilst another said he was “between five foot eight and five foot ten.”
As he gave his ruling on the ‘no case to answer’ application on Tuesday, Mr Justice O’Hara rejected the bid.
Addressing the evidence given by Haggarty, Mr Justice O’Hara said that whilst he was deemed as a “deceptive and dishonest witness” by the prosecution, it was clear Haggarty was involved in the conspiracy to kill the two workmen and explained clearly how it was planned and carried out.
Saying he had “accessed the evidence as a whole”, the senior judge said this included Smyth’s DNA match on the Barbour jacket.
Also considered by the senior judge was Smyth’s ‘bad character’ which included his involvement in a sectarian murder and attempted murder in Ballymena in January 1994.
Mr Justice O’Hara said this involvement “established a propensity to commit sectarian murders” which in turn made it “more likely the defendant was the gunman in May 1994 in Belfast.
”Regarding the eye witness evidence regarding the description of the gunman, Mr Justice O’Hara pointed out efforts were made to disguise his identity.
Acknowledging that no eye witness at the time identified Smyth as the gunman, Mr Justice O’Hara said: “The eye witnesses has limited opportunities in terms of time and distance, and in shocking and distressing circumstances, to take in and remember specific details which would assist with identification.
Mr Justice O’Hara concluded “at this stage I hold that the defendant has a case to answer and the application is refused.”
Mr Borrelli was then addressed by the judge and confirmed Smyth will not be called to give evidence and no further evidence will be put forward by the defence.
Mr Justice O’Hara then asked that closing submissions be lodged by both the Crown and defence and said the trial will sit again on January 31.