An Army veteran charged in relation to the fatal shooting of a man with learning difficulties does not accept he fired any shots, his trial has heard.
Dennis Hutchings, 80, a former member of the Life Guards regiment, has pleaded not guilty to the attempted murder of John Pat Cunningham in Co Tyrone in 1974. He also denies a count of attempted grievous bodily harm with intent.
Mr Cunningham, 27, was shot dead as he ran away from an Army patrol across a field near Benburb. People who knew him said he had the mental age of a child and was known to have a deep fear of soldiers.
The second day of the non-jury trial in Belfast Crown Court also heard that Mr Cunningham had been involved in a similar incident with an Army patrol in the same area a year earlier, when soldiers tried to detain him after finding him hiding in bushes “acting suspiciously”.
The court heard he was released when a passing local doctor intervened and explained Mr Cunningham was his patient and he had learning difficulties and was innocent of any wrongdoing.
In relation to the fatal shooting a year later, on June 15, 1974, a defence barrister said Hutchings accepted he was in the field where the incident happened but nothing else.
James Lewis QC also insisted there was no evidence before the court that proved an unnamed soldier referred to in witness statements given by other soldiers following the shooting was the defendant.
On the opening day of the trial, the prosecution contended the individual referred to as soldier A in the statements was Hutchings.
Mr Lewis told judge Mr Justice O’Hara that the defence did not accept the identities of the two soldiers said to have fired five shots at Mr Cunningham – soldiers A and B – had been proved.
“Nothing in the papers before your lordship identifies who soldiers A or B are,” he said.
Prosecution barrister Charles McCreanor QC indicated the Crown would seek to introduce evidence at a later stage in the trial that proved the identity of soldier A.
The prosecution has said soldier B is deceased.
Hutchings, from Cawsand in Cornwall, wearing a jacket with military medals pinned to the left breast, sat in the dock and listened to proceedings through a headset.
Judge O’Hara later questioned Mr Lewis on the extent of Hutchings’s admissions.
He referenced a defence statement submitted ahead of the trial which stated that on the issue of whether the defendant fired “aimed shots” at Mr Cunningham, the defence would argue Hutchings only fired “warning shots” in order to make him “comply with a lawful order to halt”.
Responding, Mr Lewis explained that would only be the defence position if the prosecution could establish Hutchings had a case to answer. He said it was for the prosecution to prove Hutchings fired any shots.
“The fact he was in the field is not contested, anything more than that is contested,” said the barrister.
There was a sharp exchange during this legal discussion, when Justice O’Hara accused Mr Lewis of talking over him, telling the lawyer that was not how he expected proceedings to be conducted in Northern Ireland. Mr Lewis apologised.
In the Crown’s opening statement on Monday, the prosecution said as no bullets had been recovered from the scene it was not possible to prove which soldier fired the fatal shot that hit Mr Cunningham in the back. For that reason, the Crown said, Hutchings was facing a charge of attempted murder.
During Wednesday’s hearing, Mr McCreanor read to the court a number of witness statements.
Judge O’Hara explained this approach was required because several trial witnesses were either dead, too ill to attend or had little memory of the event.
One statement was from Mr Cunningham’s then GP, Dr Anjan Ghosh.
Dr Ghosh described a similar incident on the same road in Benburb a year prior to the shooting when a group of soldiers tried to detain Mr Cunningham.
The doctor described coming across two Army Saracens and around six soldiers who were placing Mr Cunningham in the back of one of the vehicles.
Dr Ghosh said he intervened and explained Mr Cunningham was his patient and had learning difficulties. He told the soldiers he was innocent.
“The soldiers mentioned that he was hiding in bushes and acting suspiciously,” the doctor said in his statement.
Dr Ghosh said Mr Cunningham was then released without further questioning.
The doctor said he went to alert Mr Cunningham’s mother about the incident and to urge her to keep a close eye on his whereabouts due to his “apprehension towards soldiers and uniforms”.
He said Mr Cunningham arrived soon afterwards and was “frightened to his wits” and was comforted with a cup of tea.
On the day he died, the court heard Mr Cunningham was on his way to the Catholic priory when he encountered the Army patrol on the Carrickaness Road.
He was going to help with preparations for a forthcoming family fun day for the local community.
When two Army Land Rovers came across him on the road, he fled over a gate and ran across a field. Soldiers pursued him and he was shot around 90 metres into the field.
The court heard Mr Cunningham had called in with neighbour Brendan Fagan around 10 to 15 minutes before the incident and told him he was going to the priory to help.
Mr Fagan said Mr Cunningham was in “good form”. He said they left the house together and walked along the road for a period before going their separate ways.
Mr Fagan said the plan was that he was going to join Mr Cunningham at the priory later.
“The last thing John Pat said to me was ‘I’ll see you over there’, or I maybe said it to him,” Mr Fagan said in the statement read to court.
Mr Fagan said his neighbour always looked untidy and was known to use twine as a belt and a clothes peg as a substitute for buttons on his trousers.
A statement given by Wilson Thomas Pogue, who lived close to the scene of the shooting, was also read to the judge.
He described hearing shouts of “halt” coming from the field and then, 15 to 30 seconds later, a series of shots being fired.
Mr Pogue, who was 17 at the time, said he knew Mr Cunningham well. He said the deceased liked playing road bowls and would run holding his jacket during a game.
One of the soldiers who gave a statement after the shooting described Mr Cunningham holding his jacket as he ran across the field, prompting a concern he was concealing a weapon.
In his statement, Mr Pogue also spoke of Mr Cunningham’s fear of men in uniform.
“John Pat was feared of three things – the priest, the police and the Army,” he said.
He said Mr Cunningham would have run if he came across the Army.
“He would have kept running just to try to get away from the police or Army,” he stated.
Anthony McGurk, a neighbour of Mr Cunningham who had known him for 20 years, also described Mr Cunningham’s phobia of soldiers, recalling a conversation with him where he “expressed his fear of the military” and asked why they were coming into people’s homes in the area.
Mr McGurk said Mr Cunningham was likely to “run and hide from soldiers”.
Hutchings is suffering from kidney disease and the trial is only sitting three days a week to enable him to undergo dialysis treatment between hearings.
The trial continues and is scheduled to sit again on Friday morning.