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 honest and reliable about a particular charge, they then had to ask about corroboration. Charges 11 (rape) and 20 (sexual assault) were “stand alone” charges where there was independent evidence of the third complainer’s testimony relating to the specific charges in the form of admissions from the appellant, DNA, medical findings of bruising and distress. The judge said:
“But on the [? other] sexual charges: the charges of rape and sexual assault, there is no direct corroboration from anyone because she didn’t go to the police … so there’s no medical evidence or distress evidence. Then the Crown rely upon the doctrine of mutual corroboration for all these charges, the ones I’m talking about, that’s the various rape charges and the sexual assault.”
After providing an example, the judge continued:
“If you believe the evidence of the complainers, or at least two of them, then what you have to ask yourselves is whether the evidence of those various incidences of sexual assault by the accused, done to different people, are so interrelated in time, character and circumstance, that the fact that he’s acted in a certain way in one offence against one complainer supports the evidence of another complainer that he acted in a similar way against her.”
The judge did tell the jury that they should consider all the evidence, including that about Paris before concluding on the topic as follows:
“The starting point, of course, must be that you believe the complainers on the individual charges, and you must believe at least two of them because it’s the evidence of two different complainers which makes it, on this basis, compelling.”
Submissions
Appellant
[10] The central submission was that, having acquitted the appellant of the rapes of the first two complainers, there was no corroboration available on charge 16 involving the third complainer. It was “incongruous” to speculate that the jury would have reached a different conclusion on the credibility and reliability of a complainer only by virtue of the location of the rape. The judge had correctly directed the jury upon the principle of mutual corroboration and, in particular, that, in order to return a verdict of guilty on, amongst others, charge 16, they required to believe and accept the evidence of at least two of the complainers (Moorov v HM Advocate 1930 JC 68; Ogg v HM Advocate 1938 JC 152 at 157; Ainsworth v HM Advocate 1997 SLT 56 at 57; Lauchlan v HM Advocate (No.2) 2015 JC 75, at para [28]; Cannell v HM Advocate 2009 SCCR 207; and Danskin v HM Advocate 2002 SLT 889 at para [13]). The verdicts in respect of the charges of rape involving the first two complainers gave rise to the “logical” conclusion that the jury did not accept these two complainers in relation to allegations of a sexual nature. The guilty verdict on charge 16 could not be sustained by the application of mutual corroboration. The jury had failed to follow the directions given by the trial judge. Even if the jury had been entitled to reject the evidence in support of the charges libelled, yet to accept that relative to the events in Paris, the judge’s directions about this meant that such a course was illegitimate.
Crown
[11] The advocate depute responded by making two preliminary points: (1) the jury’s verdicts had been discerning ones; and (2) they had plainly accepted the third complainer on charge 16. The verdicts had been reasonably open to the jury (Dreghorn v HM Advocate [2015] HCJAC 69 at para [32]). The evidence about an incident occurring in a foreign jurisdiction was available for the jury’s consideration. Evidence of charges upon which an accused had been acquitted had a similar status. The evidence remained available to prove the remaining charges (HM Advocate v Mair 2014 JC 137 at para [9]). The evidence relating to the rape charges upon which the appellant was acquitted and those relative to Paris was available as potential corroboration of the rape in charge 16 (Lauchlan v HM Advocate (supra); Cannell v HM Advocate (supra); Danskin v HM Advocate (supra); HM Advocate v Mair (supra) at para [9]; Keaney v HM Advocate [2014] HCJAC 3 at para [16]). The evidence was available to the jury in their assessment of credibility and reliability (Ruben v HM Advocate 1984 SCCR 96 at 103 and Webb v HM Advocate 1927 SLT 631 at 636). The acquittal of the appellant on the rape charges did not lead to a conclusion that the verdict on charge 16 was incongruous. It was a matter for the jury to determine what parts of the witnesses’ evidence they chose to accept or reject (Harris v HM Advocate 2012 SCCR 234 at para 67). There was a rational basis for the jury’s decision to convict on charge 16 (Harper v HM Advocate 2005 SCCR 245 at 261).
[12] The trial judge had not misdirected the jury by omitting to state specifically that the events in Paris could be used separately in an application of mutual corroboration, even if the first two complainers’ evidence on the charges libelled were rejected. There had been a logic to the charge. In any event, when the whole proceedings and the charge were considered, there had been no unfairness to the appellant, no misdirection and thus no miscarriage of justice. The judge’s charge required to be read as a whole (Gemmell v HM Advocate 1980 JC 16 at 21 and McPhelim v HM Advocate 1960 JC 17 at 21-22). The jury were presumed to follow the appropriate directions (MacIntosh v HM Advocate 1997 SLT 130).
Decision
[13] It was not disputed that evidence of a crime committed in a foreign jurisdiction may be available to provide corroboration of one committed in Scotland if there was sufficient similarity in time, character and circumstances. It is theoretically possible that the jury in this case could have accepted the evidence of the first two complainers about events which occurred in Paris, yet rejected them in relation to the domestic rapes. It would then have been possible to consider whether the single incidents in Paris in 2003 and 2008 involving the first two complainers were sufficiently similar to the rape of the third complainer in Strathaven in 2014. It seems highly doubtful that such similarity could have been found so as to satisfy the requirements of mutual corroboration. However, since the court has no report from the trial judge on the circumstances, and in particular the similarities, it is not in a position to judge that matter. It is not necessary to do so because that was an issue not focused in the judge’s charge.
[14] The manner in which the judge approached the testimony of the three complainers was to direct the jury that, for mutual corroboration to apply, they had to accept at least two of them on the “individual charges”. He had distinguished between what were charges and what was contained in the docket. He had directed the jury that, in relation to the charges where there was no “direct corroboration”, they had to apply the principle of mutual corroboration. The evidence of the Parisian episodes was not seen by the judge as available to provide corroboration at all, but was available only in so far as it assisted the jury to assess the credibility or reliability of the first two complainers and the appellant. It was not presented to the jury as capable, on its own, of providing corroboration of any charge, far less that of charge 16 involving the third complainer.
[15] In these circumstances, the jury’s verdict on charge 16 must be seen as inconsistent with the directions. Had the jury followed the directions, they could only have convicted on charge 16 if they had accepted the evidence of at least one of the first two complainers on the rape charges affecting them; it not being contended that any element of the breach of the peace convictions was relevant for that purpose. It must be presumed therefore that the jury must have misunderstood the directions and that accordingly a miscarriage of justice may have occurred.
[16] In certain situations the court could look to see whether, given the jury’s acceptance of the complainers’ testimony in relation to charge 16, there was corroboration available from other sources which, from their verdicts, it was clear the jury must have accepted. That does not apply to the evidence on the Parisian events. In the absence of a specific direction that the jury could accept the Paris events as per se corroborative of charge 16, it is not possible to assert that the jury must have accepted the Paris testimony. Indeed, the opposite seems far more likely. Similarly, it may be that the independent corroboration available to support charges 11 and 20 might have provided a sufficiency to corroborate the third complainer’s testimony on charge 16, if there were sufficient similarities between these charges to indicate perpetration by the same person (see eg B v Kennedy 1987 SLT 765, Lord Dunpark, delivering the Opinion of the Court, at 768). That is not, as the trial judge recognises, how the jury were directed. In any event, the court has little information on what that corroboration was or how similar the events were. In these circumstances, the court must conclude that the inconsistency of the jury’s verdicts in the context of the trial judge’s directions has led to a miscarriage of justice on charge 16 and that that conviction must be quashed.
Sentence
[17] The trial judge reports that, had the appellant been acquitted of charge 16, he would not have reduced the cumulo sentence pro rata. The rape and sexual assaults on charges 11 and 20 involved considerable violence. The sexual assault (charge 20) was tied in closely to the physical assault (charge 21); the whole episode lasting a day or more. The judge would have reduced the custodial element to 6 or 7 years.
[18] Having regard to the judge’s reasoning, the appellant’s not insignificant criminal record, which includes domestic assaults, and the high risk of further violent, sexual offending which, according to the CJSWR, he poses, the court will select 7 years, instead of 8, as the custodial element in the extended sentence.