Rapist who claimed judge ‘misdirected’ the jury on consent loses appeal against conviction
A man found guilty of two charges of rape who claimed that the trial judge “distracted” the jury by giving an “inappropriate and unnecessary” direction on the issue of reasonable belief of consent has had an appeal against his convicted rejected.
The Appeal Court of the High Court of Justiciary refused the appeal after ruling that no miscarriage of justice had occurred.
The Lord Justice General, Lord Carloway, sitting with Lord Brodie and Lord Turnbull, heard that the appellant John Kursulis was convicted of the rape of a vulnerable 16-year-old girl, “RQ”, while she was incapable of giving or withholding consent, after an evening drinking during which he gave her an unknown drug for the purpose of “stupefying or over-powering her”.
He was also convicted of the rape of a 17-year-old homeless girl “LS”, whom he met while they were living in the same accommodation, again while she was incapable of giving or withholding consent having given her tablets to “make her feel better”.
The appellant did not give evidence, but in an interview with the police his position was that there had been no intercourse with the complainer on charge (1).
He claimed that he had taken too many Diazepam tablets and had passed out, and that the allegation was simply a “malicious” one.
On charge (2) his position was that intercourse had taken place, but that this had been with the complainer’s consent.
The trial judge directed the jury that rape could be committed in a number of ways, but for the purposes of the particular trial it consisted of the intentional or reckless penetration by the man’s penis of the woman’s vagina without the woman’s consent and without any reasonable belief that the woman was consenting, which lack of reasonable belief could be inferred from the evidence.
In relation to charge (1), there would be no consent if the complainer had been incapable of consenting as a result of the ingestion of alcohol or drugs, or if the sexual conduct had been forced upon her.
The judge continued by explaining that the appellant’s position on charge (1) was that sexual intercourse had not happened, whereas, in relation to charge (2), he had said that the complainer was sober and had consented.
In the context of whether the Crown could show that the appellant did not have a reasonable belief that either of the complainers was consenting, the judge said that in order to decide whether the appellant’s belief that the complainers were consenting was a reasonable one, they had to have regard to a number of factors, including whether the appellant took any steps to find out if they were consenting.
The judge later repeated the appellant’s position at interview in relation to each charge whereby there had been no sexual contact with the complainer on charge (1), and that the complainer on charge (2) had consented.
The ground of appeal which passed the sift was that the trial judge explained to the jury that it had not been for the appellant to show that he did not have a reasonable belief.
He stated that it was only if the appellant’s belief was a reasonable one that his actions would not amount to rape.
The judge had said that to decide if the appellant’s belief that the complainers were consenting was a reasonable one, the jury would be entitled to have regard to certain things.
This, it was submitted, amounted to a “misdirection” on the facts, as there had been no suggestion of the appellant claiming that he had a belief that the complainer in charge (1) was consenting.
Given that the appellant’s defence focused on a denial that there had been intercourse, the judge’s direction, suggesting as it did that the issue was one of consent, was “inappropriate and unnecessary” and had “distracted the jury” from their task.
There was no live issue of consent on charge (1), and this “material misdirection” amounted to a “miscarriage of justice”.
‘No miscarriage of justice’
Refusing the appeal the judges said that the trial judge’s charge had to be “read as a whole”.
Delivering the opinion of the court, the Lord Justice General said: “The necessary elements of the crime of rape were described to the jury. The judge made it clear to them on several occasions that the issue on charge (1) included whether intercourse had taken place at all.
“He went on to explain to the jury that the absence of reasonable belief was a necessary element of that crime. It cannot be said that this reference in any way misled the jury as to the essential issue.
“The judge was bound to explain the essentials of the crime to the jury, whatever the appellant’s position might have been.
“Equally, he was entitled to explain how an absence of consent could be inferred, albeit that he could have gone on in the particular passage to explain that that was not a live issue on charge (1).
“The judge made it clear that, in relation to charge (2), the question was whether the complainer had been unable to consent due to her intoxication, whereas the appellant maintained that intercourse had been consensual. In these circumstances, no miscarriage of justice has occurred.”
© Scottish Legal News Ltd 2020