The prosecution case against a Belfast man accused of murdering two Catholic workmen in May 1994 is "deeply flawed" and "weak", a court heard on Tuesday.
That is the view of the legal team representing former UDR man James Stewart Smyth, who has been charged with murdering 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 north Belfast and were sitting in a Vauxhall Polo eating lunch when their car was riddled with bullets fired from a gunman standing in an adjacent children's playground.
It is the Crown's case that Smyth (57), from Forthriver Link in the north of the city, was the gunman.
As well as denying the murders of Mr Convie and Mr Fox on May 17, 1994 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, which commenced in October, has already heard Smyth's DNA was located from the inside collar of a Barbour jacket which was located in a bag alongside the murder weapon in a derelict house close to the murder scene.
Smyth was also identified as the gunman by former UVF chief turned supergrass Gary Haggarty.
When he gave evidence at the trial, Haggarty said he was involved in the May 1994 double murder but said Smyth was the gunman who opened fire then fled across a children's playground shouting 'Up the UVF'.
As Smyth's legal team launched a 'no case to answer' application, his barrister Michael Borrelli KC described the Crown's case against his client as "deeply flawed."
Regarding Haggarty and his claim that Smyth was the gunman, Mr Borrelli 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.
Saying Haggarty's claim "is not enough", Mr Borrelli told Mr Justice O'Hara: "If there is no independent supporting evidence that puts him by the fence, we submit My Lord could not be convinced at this stage that you could convict him."
Mr Borrelli also raised the issue of statements made by eye witnesses about the gun attack.
Saying Smyth was a "notibly short man" whose height was "5ft 4 and a half inches", the defence KC pointed out one witness described the gunman as being "tall and skinny" whilst another said he was "between 5ftr 8in and 5ft 10in."
Mr Borrelli said these descriptions did not match Smyth and added: "It is a consistent and notable feature that every person who witnessed these appalling murders has failed to give a description that in any way points towards the defendant.
"There is not a single person who says that the gunman was a small man."
Mr Borrelli also addressed the issue of Smyth's DNA which was located in the inside collar of the Barbour jacket found along with the murder weapon.
Saying this evidence had limitations, Mr Borrelli said "we do not know when the DNA got there or how it got there."
He added: "It may provide an association between Mr Smyth and the jacket but it does not provide an association with Mr Smyth and the jacket standing by those railings blasting away with a Sten gun."
After Mr Borrelli completed his submissions, Crown barrister Kieran Murphy KC addressed Mr Justice O'Hara.
Regarding eyewitness' reports and the height of the gunman, Mr Murphy spoke of "multiple descriptions" given from "different angles" and "difficult to be definitive" given this was a quick and "traumatic" incident.
The senior prosecutor also raised the issue of the presence of Smyth's DNA on the Barbour jacket and said: "This was the jacket associated directly with the gun and it was the jacket worn by the gunman.
"Haggarty's account is that Smyth was given that jacket which didn't fit him ... and that the jacket was rolled up with the gun and put in the bag with the gloves and the hat - that was the gunman's toolkit - and was left in a derelict house after."
Mr Murphy also addressed the issue of Haggarty and the credibility of his evidence.
Acknowledging Haggarty's "flaws and frailties" as a witness, the prosecutor said Haggarty has been convicted for his involvement in paramilitary offences and he was called as a "witness of truth."
He also said the account given by Haggarty regarding the May 1994 murders and other terrorist offences committed by Haggarty and his UVF associates were consistent.
This, Mr Murphy said, was in contrast to Smyth who has "denied involvement but has said nothing else."
After listening to submissions from both senior barristers, Mr Justice O'Hara said he wanted time to reflect and said he would give a ruling on the 'no case to answer' application on Tuesday January 9, 2024.