Lawyer says real estate agent stopped sexual acts with woman when asked
Sexual assault trial for city businessman Alket Kulla continues later this month
‘‘ You could have consented but you just don’t remember.”
DAVE MCFADDEN lawyer
Lawyer Dave McFadden says his client Alket Kulla stopped when his accuser asked him to.
He also suggested there was no "mystery" drug and the complainant's lapses in memory were caused by copious amounts of alcohol.
"You could have consented but you just don't remember," McFadden put to the woman as Kulla's sexual assault trial continued in front of justice Esther Rosenberg in Peterborough Provincial Court on Friday.
"It's kind of hard to consent when you're passed out," the woman replied.
The woman can't be named under a publication ban that protects her name and information that could identify her.
"You just don't remember," McFadden responded, telling the woman she wasn't asleep or unconscious when Kulla started to perform oral sex on her.
McFadden told the court the two were on the floor fooling around. The woman, McFadden said, was kissing Kulla's neck and touching his genitals above his pants before Kulla removed the woman's pants and underwear to perform oral sex.
"You grabbed his head and said 'no, stop.'"
At that point, McFadden explained, his client suggested they continue but the woman told Kulla she wasn't that girl so he asked her to call him a taxi.
During his cross-examination, McFadden also highlighted inconsistencies between the woman's testimony and her original police statement taken by the case's lead officer, Peterborough police Det. Const. Mike Stephens.
She agreed with McFadden that she didn't originally tell the investigator that her stomach was exposed or that the back of her head hurt when she says she woke up on the floor. The woman also testified she doesn't know why she didn't mention it but explained the situation has been a stressful and traumatic experience.
"I am trying to hold myself together," she said.
During chief examination earlier this week by assistant crown attorney Lisa Wannamaker, the woman testified that she woke up on the floor in the early hours of Feb. 20, 2017 with her pants and underwear around her knees.
The court heard how the woman and Kulla met at The Junction night club on George St. After a night of drinking, the two of them and a friend of the each of theirs ended up back at the woman's business.
McFadden started his crossexamination by reading a series of text between the woman and her friend in the days leading up to the night and morning in question. McFadden pointed to.a text that he said suggested the women planned on drinking large amounts of alcohol on the day the girls called "Sunday Funday."
During her chief examination, the woman agreed with Wannamaker that she had an estimated 10 to 12 drinks between 9:30 p.m. and 2 a.m.
On Friday, McFadden suggested the woman had closer to 15 or 16 drinks. He showed video surveillance at the night club, and
pointed to six occasions between midnight and closing time where Kulla's friend bought the woman a drinks.
The women had been drinking earlier in Riley's before meeting the men.
"I was clearly intoxicated. I never denied that," the woman said.
She added she felt it was predatory-like for Kulla's friend to be feeding them drinks all night.
In chief examination, the woman admitted she probably drinks too much and has a high tolerance for alcohol but that morning she recalled what she described as a strange, foreign feeling, and that she believed it was caused by someone spiking her drink with a date rape drug. On Friday, McFadden highlighted that there was no proof she had been drugged.
Betty Chow, forensic scientist in the toxicology department at the Centre of Forensic Sciences, testified earlier in the day that no date rape drugs were found in the woman's blood and urine samples submitted for testing. But Chow did explain that drugs containing central nervous system depressants (the main component of a date rape drug), are quickly eliminated from urine and blood — some disappearing within four hours of being administered.
The woman's samples were not taken until about 20 hours after her interaction with Kulla, when she went to the hospital to get checked.
"I truly believe I was drugged," the woman maintained.
"Unfortunately, I waited too long (to get tested)."
After Kulla left at around 5 a.m., the woman previously testified that she spent the majority of the day trying to piece together what happened. Her efforts included sending texts to her friend and Kulla. She told the court it was unlike her to forget things and not remembering good chunks of the night caused her concern. She recalled seeing bruising on her breast, neck, knee, and arm when preparing to take a shower. That's when she became freaked out and went to the hospital
"That's when I saw myself in the mirror and saw bruising and got freaked out," she said earlier in the week.
McFadden said the woman was embarrassed and throughout the day she became progressively paranoid about her reputation being ruined.
"I feel like such a fool…And will feel like a total drunk slut if they don't find anything (date rape drug) lol," McFadden read from the woman's text history with her friend.
"I am far from a slut," the woman responded sharply.
In re-examination, Wannamaker pointed to another text exchanged between the friends where the woman said "I feel so f—-ing violated."
Wannamaker asked if this was actually how the woman was feeling that day.
"I absolutely felt violated," she said.
"I was well beyond the point where it was consent."
The trial continues April 27.