A man jailed for indecently assaulting a sleeping grandmother was wrongly convicted on the basis of an audio account played after his accuser’s death, the Court of Appeal heard yesterday.
Lawyers for Barry Mooney argued that a retrial jury who listened to recordings of the north Belfast woman sobbing and crying during her original cross-examination were unable to assess her demeanour.
They claimed the manner in which the evidence was presented denied jurors the potential opportunity to decide if her emotions were instead fuelled by embarrassment at having lied.
In the first case of its kind Mooney, 28, was convicted of indecent assault by a majority verdict at Belfast Crown Court last year and sentenced to 18 months in prison.
His 54-year-old alleged victim had died from a heart attack shortly after the first trial was aborted in 2011.
But a decision was taken to allow audio recordings of her evidence from that hearing at the subsequent retrial.
The court heard how Mooney, formerly of Brompton Park, Belfast, called at her home in the early hours of November 1, 2008 and asked to use the toilet.
He knew her from having played football for the same team as her son.
The woman recounted how she had gone back to bed but later woke up to find Mooney standing over her performing a sex act on himself.
The jury rejected his claims to have been invited into the woman’s bedroom.
Appealing the guilty verdict, Peter Irvine QC claimed there were ambiguities in the alleged victim’s emotional reaction which could not be properly assessed by recordings alone.
He contended: “The jury could have decided that the emotion at that particular time was due to embarrassment about being asked questions of a very intimate nature.”
Another possibility was that her breakdown during cross-examination was due to potential inconsistencies in her evidence for which she had no adequate response, Mr Irvine submitted.
But after the recordings were played to the three appeal judges Ken McMahon QC, for the prosecution, argued that the crying and sobbing was in only five minutes of more than two days’ evidence.
With judgment reserved by Lord Justices Girvan, Coghlin and Mr Justice Gillen, Mooney was returned to prison to await their verdict.