Appeal Against Conviction And Sentence By Alain Climent Against Her Majesty's Advocate

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 92

HCA/2015/201/XC

Lord Justice Clerk

Lord Bracadale

Lord Matthews

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION AND SENTENCE

by

ALAIN CLIMENT

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: Duguid QC; Adams Whyte, Livingston

Respondent: Fairley QC AD; the Crown Agent

8 October 2015

General
[1] On 9 December 2014, at the High Court in Edinburgh, the appellant was convicted of certain offences against three former partners. In relation to the first complainer, he was convicted of committing a breach of the peace (charge 3) on various occasions in 2003 and 2004 at an address in Dundee. However, he was acquitted of charges of repeated assault and rape in Dundee during the same period. In relation to the second complainer, the appellant was again convicted of committing breaches of the peace (charge 6) on various occasions between 2006 and 2009 at an address in Monifieth. He was, however, acquitted of repeated physical assaults and three charges of rape occurring during the same general time period in Monifieth. A peculiarity of the case is that in respect of each of these two complainers there was evidence, supported by a docket to the indictment (Criminal Procedure (Scotland) Act 1995, s 288BA), alleging that each complainer had been raped by the appellant in Paris in the course of a holiday in, respectively, 2003 and 2008.

[2] The convictions in relation to the third complainer were more numerous. The first of these (charge 11) was rape occurring in 2013 at an address in Strathaven, contrary to section 1 of the Sexual Offences (Scotland) Act 2009. Significantly, for the purposes of this appeal, there was another conviction for rape (charge 16) at the same address in Strathaven in 2014, again contrary to section 1 of the 2009 Act. The appellant was acquitted of certain other charges, including two of theft, one of assault and another of rape, this time occurring shortly after that on charge 16, but at an address in Whitburn. On the other hand, there were convictions for attempting to pervert the course of justice (charge 12), “statutory breach of the peace” (charges 13, 15 and 18), sexual and physical assaults (charges 20 and 21) and, finally, a breach of a bail condition (charge 23).

[3] On 8 January 2015, the judge imposed an extended sentence, in respect of the two rape charges and that of sexual assault, totalling 13 years with the custodial element being 8 years. He imposed a concurrent 2 years imprisonment on the breach of the peace charges (3, 6, 13, 15 and 18), 2 years concurrent respectively on the attempt to pervert and assault charges, and an admonition for the breach of bail.

[4] The appeal is only against the rape conviction on charge 16. The basis for the appeal is that the finding of guilt is inconsistent with the other verdicts of acquittal of rape returned by the jury on the charges involving the first two complainers. The appeal as framed raises the issue of whether, notwithstanding acquittals in respect of the rapes involving the first two complainers, the rape of the third complainer in charge 16 could have been seen by the jury as corroborated by either the evidence relating to the first two complainers generally or the incidents in Paris contained in the docket upon which the jury’s view was not, of course, expressed. There is also a question posed by the trial judge in his report about whether corroboration could have been found by reference to the other convictions of rape and sexual assault involving the third complainer (charges 11 and 20).

[5] Two supplementary grounds of appeal were added, although the court did not request the trial judge’s view on them. The first of these is that the trial judge misdirected the jury by omitting to direct them specifically that the evidence concerning the events in Paris could be utilised separately in the application of the doctrine of mutual corroboration, even if the jury did not accept the evidence on the rapes allegedly committed within Scotland. Secondly, the trial judge had stated that the starting point in respect of each charge was that the jury had to believe the complainers on each charge. There was no basis for supposing that the jury had gone beyond that point and considered evidence relating to the events contained in the dockets.

The evidence and charge
[6] The trial judge has not provided a report which informs the court of the facts which the jury must have found proved in relation to the matters of which the appellant was convicted nor has he provided a narrative of the evidence of the Parisian incidents or the rapes of which he was acquitted. This makes any exercise of comparison of time, character and circumstance difficult, beyond a consideration of the libels themselves.

[7] Looking at the issues which were live at the trial, it would seem unlikely that it had been anticipated, as it is now suggested by the Crown (infra), that the jury would have accepted the testimony of either of the first two complainers on the domestic rapes, yet rejected the accounts of the Parisian rapes or vice versa. Presumably, the primary significance of the two Parisian rapes was in the coincidence of the two accounts from each of the first two complainers inter se rather than their having a material bearing on events in Strathaven and Whitburn involving the third complainer in a domestic setting some years later. That appears to have been the way in which the trial judge approached matters in his charge.

[8] The trial judge did give the jury general directions on corroboration. When it came to dealing with the evidence of matters libelled in the docket, he stressed that there was “no charge on the indictment relating to the events in Paris”. He continued by stating that the evidence on the Paris events had “some potential bearing on the charges which are on the indictment”. This was said to be because, in relation to the first complainer, they put into context her allegation of rape on her return from Paris. In relation to the second complainer, the significance was said to be that the visit to Paris favoured the appellant’s account since the trip took place voluntarily after the rapes on her at home were alleged to have occurred. The trial judge continued:

“But more generally, the evidence is relevant, as is all the other evidence, to help you form a view of the credibility and reliability of the complainers and of the accused: who is telling the truth, when you come to assess the allegations made in respect of those periods”.

[9] The judge then moved off into other areas before returning much later to the principle of mutual corroboration. He directed the jury that, as a first step, they had to decide whether they accepted the testimony of the particular complainer on the “relevant charge”. He said that, if the jury were satisfied that a complainer was...