A LITHUANIAN man who attempted to rape a 14-year-old East Lothian girl after plying her with drink has lost his appeal against conviction and sentence.

In a judgment issued at the weekend, three judges at the Appeal Court in Edinburgh said there had been no miscarriage of justice in the case of Ruslanas Kukanauza, who was sentenced to five years in jail after a trial in June of last year.

Kukanauza, who was 25 when he was sentenced, had also been found guilty of sexual assaults on three girls aged 14 or 15, and was placed on the sex offender register. All of the offences took place in Haddington in 2013.

The victim of the attempted rape had claimed in court that Kukanauza had raped her while she was asleep after becoming “quite drunk” on alcohol bought by the accused.

Kukanauza was originally charged with rape, and neither the prosecution nor the defence had raised the possibility of him having committed an attempted rape, but in his summing-up at the original trial, judge Michael O’Grady QC raised the “option” of attempted rape.

Kukanauza had appealed only against the verdict of attempted rape, with his lawyers arguing that counsel for the defence had not been pre-informed that the judge was going to raise the issue of attempted rape.

In the Note of Appeal, Kukanauza’s lawyers argued that “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.”

In her written judgement, Lady Paton, who was sitting with Lord Turnbull and Lord Malcolm, noted that neither Matt Jackson QC for Kukanauza nor the advocate depute had mentioned “attempted rape” when addressing the jury.

Lady Paton continued: “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.”

Jackson contended that there was a miscarriage of justice as the judge’s actions had deprived the defence of the right to address the jury on the lesser alternative.

He also argued that the sentence was excessive, as Kukanauza was a first offender who recognised that he should not have bought alcohol for the girls. The offences had taken place at a party in his flat and the victims had attended parties there after the assaults had taken place, the allegation of rape only being made five months afterwards.

The Crown responded by arguing that “past practice in the Scottish criminal courts did not require the trial judge to intimate to counsel, in advance of their speeches, that it was proposed to give a direction on an obvious alternative verdict or verdicts reasonably available on the evidence.”

Rejecting the appeal, Lady Paton concluded: “The defence position was quite clear to the jury: no sexual act of any sort had taken place. It was on that basis that defence counsel addressed the jury, inviting them to reject the complainer’s evidence as nothing but lies.

“In such circumstances, the absence in the defence speech of a reference to attempted rape (clearly a sexual act) and submissions that no such act took place was, in our opinion, inconsequential. In the result therefore we are not persuaded that any miscarriage of justice occurred.”

She also wrote that since the charges were serious and three involved sexual assault of children “we are unable to say that the sentence was excessive.”