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 awoke he was on top of her groping her breasts. 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 that it is an offence to commit a sexual act on a person without consent and that a sleeping person cannot give consent.

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.

“The people of Ireland should know if this is an offence and Mr Ó 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 Staines, Mr Justice John Edwards, presiding, said that the court would not allow the point relied on by 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 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 judgment on that ground of appeal.

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” Ó Leidhin’s life and career.

He asked the court to consider suspending the remainder of Ó 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 13 May 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.

At a previous sentence hearing, Garda Niall Freyne told Michael Delaney SC, prosecuting, that the complainant, who is legally entitled to anonymity, was out drinking in a Dublin pub with a female friend when they met the defendant who knew her friend.

The group went on to another pub and the woman and Ó Leidhin were kissing. At the end of the night, Ó Leidhin asked the woman to go back to his flat in south Dublin and they got a taxi there.

In the flat they were kissing and Ó Leidhin engaged in consensual sexual foreplay-type activity. Ó Leidhin suggested they have penetrative sex. The woman said no but left open the possibility that they could do so the next morning, Delaney told the court.

In his account to gardaí, Ó Leidhin said that he was unable to get an erection.

The woman then fell asleep and woke later to find Ó Leidhin on top her of her and groping her breasts. She said she told him to stop and get off her. He did stop and told her: “Sorry, I’m horny”.

The court heard that she was annoyed and told the defendant that she was clearly asleep.

The woman said she went back to sleep. Later that night Ó Leidhin drove her home and over the following days she texted him expressing annoyance at what had happened.

He met up with her and they spoke for an hour and “they agreed to differ” about what had happened, Gda Freyne said. Nearly a year later in April 2019, the woman went to gardaí and made a complaint of sexual assault.

The following July, Ó Leidhin met with gardaí and said that after falling asleep together he had woken up and started to kiss the woman and got on top of her. He said he had tried to wake her up and when she did wake up, she was annoyed at what he was doing while she was still asleep.

He told gardaí that he told her that they had engaged in sexual foreplay and that he had been trying to wake the woman to continue “fooling around”.

Gda Freyne told the court Ó Leidhin has no other criminal convictions and has never come to garda attention before or since the incident.

He agreed with Bernard Condon SC, defending, that Ó Leidhin was fully co-operative with the investigation and has a good working history as a journalist.

Condon said that his client has been suspended from his position in RTÉ and will have difficulties ever working in his chosen field again. He handed in a number of references from long standing acquittances who described the defendant as a supportive friend and described his shame and sorrow at the events of the night.

Condon said his client is remorseful and that having put his understanding of what took place to the jury he accepts the jury verdict.

Reading from her own victim impact statement, the woman said that while she wished to retain her anonymity, she did not want Ó Leidhin to remain anonymous.

She said the assault had left her traumatised and feeling lost in the world. She said she was sexually violated when she was at her most vulnerable.

She said the night of the attack was the last time she would ever go to sleep feeling safe from attack.

She said she replays the assault again and again and has felt depressed and suicidal. She said she did attempt to kill herself by overdosing and ended up moving back in with her parents to cope with the trauma and stress.

She was unable to get public transport for a long time because the “touch from a stranger was unbearable”.

“My whole life and sense of self have been destroyed,” she said. She said she has since found it extremely difficult to trust men and would completely freeze during any intimate sexual activity.

She said it had taken three years from the time she reported the assault before the trial took place. This was completely unacceptable she said and forced victims of sexual violence to be stuck in a state of trauma.

She said that giving evidence and being cross examined was unbelievably distressing and she felt at times she was going to have a heart attack.

Handing down sentence, Ms Justice O’Connor noted that Ó Leidhin is a person of prior good character, who lost a “prominent and promising” career in the media in the wake of the conviction. She said she considers him to be at a low risk of sexual offending in the future.