John Kursulis v. Her Majesty’s Advocate [2019] HCJAC 34

Note of appeal against conviction:- On 1 August 2018, at Glasgow High Court, the appellant was convicted of two charges of rape, both contrary to sections 1 and 11 of the Sexual Offences (Scotland) Act 2009, both charges including reference to intentionally administering to the complainer, or causing a substance to be taken by her for the purpose of stupefying or over-powering her so as to enable him to engage in sexual activity involving her and while under the influence of alcohol and a drug or similar intoxicating substance, unconscious or asleep and incapable of giving or withholding consent each complainer had been raped. On 21 September 2018, the appellant was sentenced to 9 years imprisonment. The appellant did not give evidence at his trial, however, during the course of his police interview his position had been there had been no intercourse with the complainer referred to in charge 1, that he had taken too many diazepam tablets and had passed out and that the allegation was malicious and made up. In relation to charge 2 the appellant’s position at interview was that sexual intercourse had taken place, however, had been with the complainer’s consent in that the complainer had initiated the intercourse, had been awake at the time and could not have been sleeping during it. During the course of the trial judge’s charge the jury were directed that rape could be committed in a number of ways but, in the particular circumstances of the trial, 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. A lack of reasonable belief could be inferred from the evidence. The directions in relation to charge 1 were that 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 jury were directed that the appellant’s position was that the appellant’s position in relation to charge 1 was that there had been no sexual contact whatsoever and that in relation to charge 2 his position was that the complainer was conscious, sober and had consented. The judge also directed the jury on the issue of reasonable belief as to consent and that for the jury to decide whether the appellant’s belief that the complainers were consenting was a reasonable one, they had to have regard to various factors, including whether the appellant took any steps to find out if they were consenting. The appellant appealed against his conviction on the basis that the trial judge had misdirected the jury, in particular, in relation to the question of reasonable belief in relation to charge 1 as there had been no suggestion by the appellant that he had a belief that the complainer in charge 1 was consenting as his position was that no sexual contact had taken place at all and the directions given by the trial judge were liable to confuse the jury. It was submitted that the directions given suggested that the issue was consent and those inappropriate and unnecessary directions were liable to distract the jury from their task. Here the court refused the appeal. The court reiterated that the trial judge’s charge had to be read as a whole and the trial judge had repeatedly made clear to the jury that the appellant’s position in relation to charge 1, and the issue for the jury to determine, was that he had not had sexual intercourse with the complainer. In addition, the trial judge explained that the absence of reasonable belief was a necessary element of that crime, however, the court did not consider that would distract the jury from their task. The court noted that it was necessary for the trial judge to give full directions on the crime of rape to the jury albeit it could have been explained that consent was not an issue in relation to charge 1.