Lawyers for the woman who attacked journalist Jennifer Bray on O'Connell Street have asked the Court of Appeal for a re-trial.
Ruth Barry (36), of Moy Elta Road, East Wall, Dublin 3, was found guilty by a jury of cutting the face and causing serious injury to Ms Bray on O'Connell Street on June 25th, 2010.
She was also found guilty of using a blade and robbery as well as assaulting two of Ms Bray’s companions on the same date. She had denied the charges.
Barry was sentenced to seven years imprisonment - with the final 18 months suspended - by Judge Desmond Hogan at Dublin Circuit Criminal Court on July 26th, 2012.
Ms Bray, an award-winning Irish Daily Mail journalist, was in the queue at McDonald’s on O’Connell Street with Neil Callanan and Sarah Furlong when a dispute took place. Barry accused Ms Bray of punching her in the stomach.
A short time later, Barry and her co-accused Jonathon O’Brien followed the three outside to where they had hailed a taxi.
Barry punched Ms Bray and headbutted Ms Furlong. She also bit Mr Callanan as he was trying to break up the attack.
Ms Bray had given evidence in the trial that she felt something cold on her face and heard a click. She then slumped to the ground. Counsel said she had been “slashed in the face” with a Stanley knife which had a retractable blade.
Moving an appeal against conviction, Barry’s barrister, James O’Brien SC, said the absence of a witness in the trial was unjust.
Mr O’Brien said Jakub Gajda had independently witnessed events on O’Connell Street. In a statement, Mr Gajda said he had not seen a knife or blade but had seen Jonathon O’Brien allegedly “take something from behind his back”.
Counsel submitted there was no evidence Barry had the knife. Rather, it was done by inference, he said.
The inference being that because no-one else had interacted with Ms Bray when she received her cutting injuries, “it was Barry with the blade” in both instances.
He said Garda witnesses had told the trial Mr Gajda refused to give evidence and refused to accept a witness summons.
When asked whether he conceded to allowing Mr Gajda’s statement to be read into the record as evidence during the trial, Mr O’Brien said he would not make the same concession again. “It was the best of all possible worlds at the time,” he said. “All I’m looking for is a retrial to see if Mr Gajda is available.”
Counsel for the Director of Public Prosecutions, Mary Rose Gearty SC, said it was only during the trial that her side became aware there was a difficulty with Mr Gajda's availability to give evidence.
Ms Gearty said significant efforts were made to serve a witness summons on Mr Gajda. When all of that came to nothing, the prosecution offered to read his statement into the record as evidence.
The trial judge had looked at the statement, looked at the evidence and ruled that it was not unfair that the witness did not attend, counsel said.
The idea that the witness would have gone “off piste” in the witness box in some way was so fanciful to be non existent, Ms Gearty said.
Mr Justice George Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice John Edwards, said the Court of Appeal would reserve judgment to a date "as soon as possible".