Appeal Against Conviction And Sentence By Ruslanas Kukanauza Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Turnbull,Lord Malcolm,Lady Paton |
| Neutral Citation | [2017] HCJAC 26 |
| Year | 2017 |
| Published date | 09 May 2017,12 May 2017 |
| Court | High Court of Justiciary |
| Date | 12 May 2017,09 May 2017 |
| Docket Number | HCA/2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 26
HCA/2016/000351/XC
Lady Paton
Lord Malcolm
Lord Turnbull
OPINION OF THE COURT
delivered by LADY PATON
in
APPEAL AGAINST CONVICTION AND SENTENCE
by
RUSLANAS KUKANAUZA
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: M Jackson; Faculty Services Limited
Respondent: Edwards QC, AD; Crown Agent
12 May 2017
Introduction
[1] On 25 May 2016, after a trial in Edinburgh High Court, the appellant (then aged 25) was found guilty of the following charges (read short):
Charge 1: on an occasion between 12 July 2013 and 13 July 2013, attempted rape of HA, aged 14 years, while she was heavily under the influence of alcohol and asleep or unconscious and incapable of giving or withholding consent, contrary to section 1 of the Sexual Offences (Scotland) Act 2009 (majority);
Charge 3: on an occasion between 1 January 2013 and 31 December 2013, sexual assault of AM, aged 14 or 15 years, by restraining her, attempting to kiss her, placing his arms around her waist, and placing his hands under her lower clothing and attempting to touch her vagina, contrary to section 3 of the 2009 Act (unanimous);
Charge 4: on an occasion between 1 January 2013 and 31 December 2013, sexual assault of ZW, aged 14 or 15 years, by attempting to kiss her, contrary to section 3 of the 2009 Act (majority);
Charge 5: on an occasion between 1 January 2013 and 31 December 2013, behaving in a threatening or abusive manner likely to cause alarm and uttering a threat to ZW, contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (unanimous);
Charge 6: on an occasion between 1 January 2013 and 31 December 2013, sexual assault of NL, aged 14 or 15 years, by touching her body and attempting to kiss her, contrary to section 3 of the 2009 Act (majority).
On 21 June 2016, the trial judge (Judge O'Grady QC) imposed a cumulo sentence of 5 years imprisonment.
The circumstances of the offence
[2] Charge 1 had originally been indicted as rape (not attempted rape). The circumstances of the offence were as outlined in the appellant's note of appeal, as follows:
“3. …In support of that charge, the complainer (who was aged 14 at the time) alleged that she and 2 other friends (DS (male) and KB (female)) had been bought alcohol by the appellant (at their request) which had been drunk in his flat. Thereafter, the complainer and her 2 friends had lain down on the appellant’s bed and fallen asleep. It was agreed that they would all spend the night at his flat…
4. All 4 of the occupants of the bed lay side-on on the bed. KB (who was at the top of the bed) and the complainer lay with the appellant between them while DS was at the foot of the bed next to the complainer. The complainer spoke to waking up with her body shaking. She said that the appellant’s hand was under her knee and that her leg was being pulled up to her hip. She didn’t have any pants on and she said that the appellant was having sex with her. She confirmed that the sex was not consensual. She was unequivocal on the question of penetration. She stated that he had his penis inside her. On being challenged in cross-examination she confirmed that ‘there was a penis inside me’.
5. DS said in evidence in chief that he had woken and seen a vague outline of shuffling, of someone trying to lift the complainer’s leg. He pushed the appellant’s arm and verbally challenged the appellant who replied that he was doing nothing. He was asked what he thought was happening and replied that at that point he didn’t know but that it looked suspicious- like the appellant was trying to do something. He confirmed that it looked like the appellant was trying to ‘shag her’. He stated that the appellant was trying to get in closer. He was lifting her leg and ‘moving in back and forth’.
6. In cross examination DS accepted the possibility that what he had seen was simply the appellant trying to make himself comfortable. He had said this to the police in an earlier police statement although he was clear that he had lied to the police in respect of some of what he had said to them. For example, he had said to the police in one statement ‘it definitely wasn’t sex’. He declined to adopt that element of his police statement in cross examination albeit that he did ultimately accept that what he had seen could have been the appellant seeking to make himself comfortable. In re-examination he said that ‘my evidence is that he was trying to shag her’.
7. KB did not assist the Crown in evidence beyond saying that she was aware that the appellant was moving on the bed. She said he was ‘shuffling’. She stated also that she had seen the appellant touch the complainer’s leg. She spoke to waking up to see the complainer and DS wanting to leave hurriedly.
8. While there had been a degree of distress shown by the complainer immediately upon leaving the appellant’s flat it was short-lived. No complaint was made to the police until some 5 months later when it was brought to their attention by the complainer’s social worker. She had been to a party at the appellant’s house in the interim.
9. A section 97 of the Criminal Procedure (Scotland) Act 1995 application was made at the close of the Crown case submitting that there was insufficient evidence to convict of rape. It was submitted that there was no corroboration of the act of penetration. That was repelled
10. The emphasis in cross-examination of the Crown case and the basis of the defence speech was i) that there was no penile penetration and ii) that DS accepted that what he had witnessed was simply the appellant moving on the bed to make himself comfortable. The advocate depute in her speech relied on the unequivocal evidence of the complainer supported by the evidence of DS. Neither the Crown nor the defence raised the issue of attempted rape.”
The speeches and judge's charge
[3] In their speeches, neither the advocate depute nor the defence counsel addressed the jury on the alternative of attempted rape. The judge, in his charge, directed the jury as follows (page 28):
“...But I want to say another word about another crime, which is a slightly, it's still a serious one but a lesser one, which, depending on your view of the evidence, could occur in this context. Now I'm raising this not as a suggestion. I say that because I've emphasised I have no view on the evidence, but I'm raising it simply because, depending on your view of the evidence, it could be an option which is open to you, that's the only reason I'm covering it, it's not a suggestion, and that is the crime of attempted rape.
Now, why do I raise that? Well, you will recall, as I've just told you, that one of the crucial elements in rape which has to be proved by corroborated evidence is penetration. Now, the complainer in this case is quite clear and unequivocal that penetration did take place, but if you were satisfied on her account of the charge as a whole, but had a reasonable doubt about the aspect of penetration, then you could convict of the lesser charge of attempted rape. Likewise, even if you believe the complainer about penetration, but thought that, one way or another, Mr S's evidence fell short of corroborating penetration, you could convict of attempted rape."
Now bearing in mind that, of course, to amount to corroboration, Mr S doesn't actually literally have to see the penetration taking place himself. The evidence which he has given, could, depending on your view, corroborate that penetration. On the other hand, if you didn't think it did, you could find the accused guilty of attempted rape.
Now what is attempt? [and the trial judge proceeded to direct the jury concerning an attempted crime].”
After speeches and the judge's charge, the jury brought back a verdict on Charge 1 of attempted rape.
Grounds of appeal
[4] The appeal relates only to the conviction of attempted rape. The appellant sought to argue that there was no basis for the judge introducing the possibility of attempted rape in his charge. That ground of appeal did not pass the sift. The ground of appeal which passed the sift was set out at paragraph 14 of the Note of Appeal:
"Esto there was scope for introducing the possibility of attempted rape in his address to the jury, the learned trial judge misdirected himself in failing to seek the views of the advocate depute and defence counsel, especially in circumstances where the latter did not address the possibility of an attempt in his speech to the jury."
The case of Ferguson v HM Advocate
[5] In Ferguson v HM Advocate 2009 SCCR 78, the appeal court confirmed that it was the duty of the trial judge, irrespective of the wishes of trial counsel, to advise the jury of any alternative verdict obviously raised by the evidence. The court's judgment also drew attention to the recommended practice of communicating to counsel in court, outwith the presence of the jury, that it was proposed to give a direction on such an alternative verdict or verdicts.
Submissions for the appellant
[6] Mr Jackson was the defence counsel at the trial. Neither he nor the advocate depute had mentioned “attempted rape” when addressing the jury. Nor had they mentioned other lesser crimes such as assault with intent to rape, indecent assault, or assault. The trial judge had not advised counsel, in advance of their speeches and outwith the presence of the jury, that he intended to give a direction on the alternative verdict of attempted rape. He had thus not followed the guidance in Ferguson v HM Advocate 2009 SCCR 78. Had he let counsel know in advance, counsel would have addressed the...
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