DPP v Ruth Barry

 
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[2015] IECA 26

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Edwards J.

271/12
DPP v Ruth Barry
The People at the Suit of the Director of Public Prosecutions
V
Ruth Barry
Appellant

Conviction – Assault – Robbery – Appellant seeking a separate trial – Whether trial was rendered unfair by the absence of a witness

Facts: The appellant, Ms Barry, on the 15th June 2012, after a seven day trial, was convicted of an offence involving a s. 4 assault on Ms Bray (the allegation is of cutting the face with a knife), assault causing harm on Mr Callanan, robbery of a mobile phone and cash from Ms Bray and producing a knife. The events in question all occurred during the early hours of the morning on the 25th June 2010, on O”Connell Street, Dublin. She also pleaded guilty to a s. 3 assault on Ms Bray on the same occasion and to a s. 3 assault on Ms Furlong. The appellant appealed to the Court of Appeal on two grounds relating to (1) a ruling of the trial judge, that the case could proceed in the absence of a witness, Mr Gajda and (2) that as a result of that witness”s absence and the further fact that the trial judge acceded to an application on behalf of the appellant”s co-accused, Mr O”Brien, for a direction on the count of production of a knife, that the trial was rendered unfair and unsatisfactory such that the trial judge ought to have acceded to an application made at that stage for a separate trial. The link between those two grounds was that the statement of evidence of Mr Gajda which had been provided, was to the effect that the co-accused, Mr O”Brien, produced an object from the back of his waist, walked about with it before placing it in a hiding place from where it was retrieved according to other witnesses and then disposed of it in a street drain where a knife was found. The argument made was that the absence of Mr Gajda meant that the jury had an incomplete picture, namely that the co-accused only handled a blade after the slashing of the face of Ms Bray, whereas the book of evidence had contained some information that was to the contrary effect.

Held by Birmingham J that, having considered the significance of the absent witness, and how the situation was handled, it was the responsibility of the prosecution to secure the attendance of Mr Gajda and take all reasonable steps in that regard. In the nature of things, precisely because Mr Gajda absented himself, Birmingham J held that any consideration of how he would have contributed to the trial had he been present must inevitably involve an element of speculation. For this reason, Birmingham J held that it was not necessary for the defence to establish that the missing witness would have advanced the defence case materially, it being sufficient to establish a reasonable possibility that this might have happened. Birmingham J held that it is inconceivable that the effect of the missing evidence would be to negate the evidence of Mr Callanan and Ms Furlong; the evidence of Mr Gajda certainly had the capacity to advance the point in time at which Mr O”Brien was connected with a knife, but it did not address the question of whether Ms Barry ever had a knife or blade, whether the one in the possession of Mr O”Brien at various stages or another. Furthermore, Birmingham J held that no evidence that Mr Gajda might have to offer could raise any doubt about the fact that Ms Barry was party, whether as the person wielding the knife at the relevant time, or by supporting and assisting the person wielding the knife, to the very serious assault on Ms Bray which resulted in the injuries sustained. Birmingham J held that the ground for the application for a separate trial after Mr O”Brien obtained a direction on the count on the indictment in relation to the production of a knife did not take the matter any further.

Birmingham J held that the situation that developed and the situation in which the trial judge was placed ought not to have been allowed to happen. Nevertheless, when viewed in the context of the entire body of evidence, that there was at trial, Birmingham J held that it cannot be said to have rendered the verdict of the jury unsafe or unsatisfactory. Accordingly the Court dismissed the appeal.

Appeal dismissed.

Mr. Justice Birmingham
1

On the 15th June, 2012, after a seven day trial, the appellant Ms. Ruth Barry was convicted of an offence involving a s. 4 assault on one Jennifer Bray (the allegation is of cutting the face with a knife), assault causing harm on Neil Callanan, robbery of a mobile phone and cash from Jennifer Bray and producing a knife. The events in question all occurred during the early hours of the morning on the 25th June, 2010, on O'Connell Street, Dublin. It is also the case that she pleaded guilty to a s. 3 assault on Jennifer Bray on the same occasion and to a s. 3 assault on one Sarah Furlong.

2

There are two grounds of appeal and these relate to (i) a ruling of the trial judge, that the case could proceed in the absence of a witness, Jacob Gajda and (ii) that as a result of that witness's absence and the further fact that the trial judge acceded to an application on behalf of the appellant's co-accused, Jonathan O'Brien, for a direction on the count of production of a knife, that the trial was rendered unfair and unsatisfactory such that the trial judge ought to have acceded to an application made at that stage for a separate trial.

3

The link between these two grounds is that the statement of evidence of Mr. Gajda which had been provided, was to the effect that the co-accused, Jonathan O'Brien produced an object from the back of his waist, walked about with it before placing it in a hiding place from where it was retrieved according to other witnesses and then disposed of it in a street drain where a knife was found. The argument made is that the absence of Jacob Gajda meant that the jury had an incomplete picture, namely that the co-accused only handled a blade after the slashing of the face of Jennifer Bray, whereas the book of evidence had contained some information that was to the contrary effect.

4

By way of background to this issue it should be explained that a witness order had been served on Mr. Gajda when the case had been listed on a previous occasion, but he had refused to attend. When the trial was listed in June, he had refused point blank to come to court. When this difficulty emerged, counsel on behalf of the appellant indicated a willingness to have Mr. Gajda's witness statement read to the court, but this suggestion was not acceptable to the co-accused, and this did not happen. In the course of his oral arguments to this court, counsel has indicated that on reflection, this was a concession that he should not have made as it involved denying himself the opportunity to have Mr. Gajda go beyond the terms of his witness statement and furnish additional evidence of assistance to the defence of the appellant.

5

To put these arguments in context, it should be explained, as already indicated, that the trial involved an incident that occurred on the 25th June, 2010, in O'Connell Street, Dublin. On that occasion, Ms, Jennifer Bray had been out socialising with a work colleague of hers Neil Callanan. Having had a few drinks, they went into a McDonalds restaurant in O'Connell Street to purchase food. They had met with Ms. Sarah Furlong who is a cousin of the main injured party Jennifer Bray. They queued for their food, this was in the early hours of the morning at about 3. 00 or 4.00 am and there was an element of pushing and shoving in the queue. The appellant Ruth Barry was also in the McDonalds queue and an argument developed involving Ruth Barry and Jennifer Bray. Ms. Barry, who said she was pregnant, accused Ms. Bray of having hit her in the stomach. Ms. Barry was in the company of Jonathan O'Brien, the co-accused, who was wearing a red top. Ms. Bray, Ms. Furlong and Mr. Callanan left the restaurant and went out on to the pavement and tried to hail a taxi. They were followed out shortly afterwards by Ruth Barry and Jonathan O'Brien. When Ms. Bray was at the door of the taxi that had stopped for the group, Ruth Barry proceeded to assault Jennifer Bray, punching her and head-butting Ms. Bray's cousin, Sarah Furlong.

6

The prosecution case was that Mr. Callanan tried to break up the incident, but that he was assaulted by both Mr. O'Brien and indeed that he was bitten by Ms. Barry. At a time when Ms. Barry was standing in front of Ms. Bray, Ms. Bray felt something cold on her face and heard a click and then slumped to the ground. It was later ascertained that her face had been slashed. Ms. Furlong too sustained certain cutting type injuries which, as we will see, is of significance in the context of the...

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