Court refuses to consider 'implied consent' in ex-RTÉ journalist's sex assault appeal

The trial heard that it is an offence to commit a sexual act on a person without consent and that a sleeping person cannot give consent
Court refuses to consider 'implied consent' in ex-RTÉ journalist's sex assault appeal

Lorcan Staines also appealed against the severity of Mícheál Ó Leidhin's (pictured) 18-month sentence with the final three months suspended. File picture: Collins Courts

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 O'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 awoke he was on top of her groping her breasts. Mr Staines added that O'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 that 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 O'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. "The people of Ireland should know if this is an offence and Mr O'Leidhin should be able to test whether that is the law." 

The jury, he said, should have been asked by the trial judge to consider the question of implied consent based on the sexual activity that had taken place before they fell asleep.

Ms Justice Aileen Donnelly said that 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 that the court would not allow the point relied on by Mr Staines. He said 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 O'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 judgment on that ground of appeal.

Sentence appeal

Mr Staines also appealed against the severity of his client's 18-month sentence with the final three months suspended. He said that the offence was "at the very lowest end of sexual assault" and that the media publicity surrounding the verdict had "destroyed" Mr O'Leidhin's life and career.

He asked the court to consider suspending the remainder of Mr O'Leidhin's sentence. Michael Delaney SC for the Director of Public Prosecutions 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 judgment 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 13, 2018. Ó Leidhin, a native of Ballinskelligs, Co. Kerry, had denied the offence but was convicted by a jury verdict.

Sentencing him earlier this year, Ms Justice Karen O’Connor said the complainant had given “compelling” evidence of the ongoing trauma she suffered in the wake of the assault.

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