Alain Climent v. Her Majesty’s Advocate [2015] HCJAC 92

Note of appeal against conviction and sentence:- On 9 December 2014, at Edinburgh High Court, the appellant was convicted after trial of various offences committed against three former partners. In relation to the first complainer he was convicted of various charges, however, he was acquitted in relation to a charge of rape. In relation to the second complainer, the appellant was again convicted of various charges, however, he was acquitted of various physical assaults and three charges of rape. In relation to the first and second complainer, a docquet in terms of section 288BA of the Criminal Procedure (Scotland) Act 1995 was attached to the indictment which stated that in respect of each of these two complainers there was evidence alleging that each complainer had been raped by the appellant in Paris in the course of a holiday in 2003 and 2008, respectively. In relation to the third complainer the appellant was convicted of a charge of rape (charge 11) occurring in 2013 at an address in Strathaven, contrary to section 1 of the Sexual Offences (Scotland) Act 2009. There was another conviction for rape (charge 16) at the same address in Strathaven a year later, contrary to section 1 of the 2009 Act. The appellant was also convicted of sexual and physical assaults in relation to the third complainer (charges 20 and 21). On 8 January 2015, the judge imposed an extended sentence, in respect of the two rape charges and that of sexual assault, of 13 years with the custodial element being 8 years. He imposed a concurrent sentence of 2 years imprisonment in relation to a number of breach of the peace charges and 2 years imprisonment also concurrently on attempting to pervert the course of justice and assault charges. The appellant appealed against his conviction in relation to the rape charge in 2014 (charge 16) on the basis that the finding of guilt was inconsistent with the other verdicts of acquittal of rape returned by the jury on the other rape charges involving the first two complainers. The appeal raised the issue of whether, having been acquitted in respect of the rapes involving the first two complainers, the rape of the third complainer in charge 16 could have been corroborated by either the evidence relating to the first two complainers generally or the reference to the incidents in Paris referred to in the docket which the jury’s view had not been expressed. There was also a question raised by the trial judge in his report to the court 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). It was submitted on behalf of the appellant 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 further submitted that it did not make sense 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. It was submitted on behalf of the appellant that the verdicts of acquittal in respect of the charges of rape involving the first two complainers meant that the jury did not accept these two complainers in relation to allegations of a sexual nature and that the guilty verdict on charge 16 could not be supported by the application of Moorov. On behalf of the Crown it was submitted that the jury’s verdicts had been discerning ones and it was clear they had accepted the evidence of the third complainer in relation to charge 16. It was further submitted that the evidence in relation to an incident occurring in a foreign jurisdiction was available for the jury’s consideration and evidence of charges upon which an accused had been acquitted had a similar status. It was further submitted on behalf of the Crown that it was a matter for the jury to determine which parts of a witness’s evidence they chose to accept or reject and in the present case there was a rational basis for the jury’s decision to convict the appellant of charge 16. Here the court allowed the appeal. The court stated that, whilst a crime committed in a foreign jurisdiction can provide corroboration of one committed in Scotland if there was sufficient similarity in time, character and circumstances, and in theory the jury could have accepted the first two complainers evidence in relation to the conduct in Paris but been rejected by the jury in relation to the conduct in Scotland, the court stated that it was “highly doubtful” that there were present here sufficient similarities between the conduct in France in 2003 and 2008 and that in Strathaven in 2014 for mutual corroboration to apply. In relation to how the trial judge charged the jury it was said that for mutual corroboration to apply they had to accept at least two of the three complainers on “the individual charges” which distinguished the conduct relating to the docquets and that of the charges libelled. As such it was clear from the charge that the trial judge had directed the jury that the conduct abroad was not available to the jury for corroborative purposes and, as such, the jury’s verdict in relation to charge 16 was not in accordance with the directions given. In addition, the court did not consider that the independent corroboration which was available to the jury in connection to the jury in relation to charges 11 and 20 allowed the jury to use that as corroboration of the complainer’s account in relation to charge 16 on the basis that the evidence showed that these offences were committed by the same person. It was noted by the court here that the jury were not directed on that basis and the conviction in relation to charge 16 was quashed. In relation to the appeal against sentence the custodial element of the extended sentence was reduced from 8 years to 7 years on account of the quashing of the verdict in relation to charge 16.