The Court of Appeal has refused to consider an argument of "implied consent" made by lawyers representing an ex-RTÉ journalist who sexually assaulted a woman while she slept.
Lorcan Staines SC had argued before the three-judge court that the jury at Mícheál Ó Leidhin's trial should have been told to consider "implied consent" in circumstances where the woman had engaged in consensual sexual activity with Ó Leidhin before they both fell asleep.
The victim told the trial that before going to sleep they spoke about the possibility of further sexual activity the following morning, but when she woke he was on top of her groping her breasts.
Mr Staines added that Ó Leidhin's account of what happened was that he tried to wake her with sexual activity but stopped when she told him to stop.
The trial heard it is an offence to commit a sexual act on a person without consent and that a sleeping person cannot give consent.
Mr Staines compared what Ó Leidhin did to a scenario where a woman wakes her partner by performing a sexual act. Under the definition, he said, that too would be an offence.
Argument refused
Ms Justice Aileen Donnelly said the woman was "entitled to fall asleep and feel safe", knowing that there would only be sexual activity if she was awake and had consented.
Having heard arguments from Mr Staines, Mr Justice John Edwards, presiding, said the court would not allow the point relied on by Mr Staines. He added that the issue of how the jury was charged was not mentioned in the grounds of appeal submitted to the court and implied consent was not raised by Ó Leidhin's defence at trial.
He said the court would only consider the ground of appeal mentioned in submissions to the court, which was that the jury's verdict was "perverse". The court reserved judgement on that ground of appeal.
Mr Staines also appealed against the severity of his client's 18-month sentence with the final three months suspended. He said the offence was "at the very lowest end of sexual assault" and that the media publicity surrounding the verdict had "destroyed" Ó Leidhin's life and career.
He asked the court to consider suspending the remainder of the sentence.
Michael Delaney SC for the Director of Public Prosecutions (DPP) said the sentence set by the court fell well within the appropriate range and did not constitute an error in principle by the sentencing judge.
The court also reserved judgement on the sentence appeal.
Ó Leidhin (38), of Sunnyside, Malahide Road, Artane, was convicted last April of sexual assault at his former home in south Dublin in the early hours of the morning of May 13th, 2018.
He had denied the offence but was convicted by a jury verdict.
If you have been affected by any of the issues raised in this article, you can call the national 24-hour Rape Crisis Helpline at 1800-77 8888, access text service and webchat options at drcc.ie/services/helpline/, or visit Rape Crisis Help.
In the case of an emergency, always dial 999/112.
