Appeal: Two cases in one trial fair?

The Dominion Post
April 20 2007

Two rapes in one hearing 'prejudiced jury'

A former Wellington restaurant owner convicted of two separate rapes at the same trial has claimed that his jury was prejudiced by hearing the cases together.
Mustafa Can, 40, of Newtown, had been found guilty by a Wellington District Court jury of two charges of rape, one of abduction, indecent assault and sexual violation by unlawful sexual connection. The first victim was a 16-year-old whom he met outside the restaurant in August 2004 and invited inside. He raped her in a toilet. Can was charged and freed on bail.
A month later he met a handicapped woman at a bar and took her to the public toilets near the Wellington waterfront lagoon, where he raped her. The name of the restaurant and the nature of the woman's handicap are suppressed.
Can was jailed for 12 years. Yesterday, he appealed against his convictions.
The Court of Appeal reserved its decision.
His lawyer, Colin Carruthers, QC, said that by allowing the two counts to be heard in one trial, it could be seen that one has infected the other.
He said there were separate issues for each complainant, the first was whether Can had a reasonable belief of consent and with the second it was whether she could consent.
Mr Carruthers said the judge had directed the jury that they had to put themselves into Can's shoes in deciding whether he had reasonable belief that the first complainant consented.
He said she then did not explain Can's particular circumstances.
It was unhelpful to have to put yourself in the accused's shoes without showing the factors involved, Mr Carruthers said. He said the two cases were not so similar that they should have been run in one trial.
Crown prosecutor Kate Feltham said the Crown had not alleged that the handicapped woman was not capable of consenting, but that she ended up in a situation she could not handle and did not understand what was happening.
She said the two cases showed a similar pattern of behaviour.