The Supreme Court has dismissed Clement Limen’s appeal against convictions arising from a party at his apartment in June 2014, where two women said he sexually attacked them while they were deeply asleep.
The appeal concerned whether, in a trial involving several alleged victims, one person’s account can support another’s, and what guidance a jury should receive. The court said accounts need not be strikingly similar before a jury may consider whether they support each other. The relevant question is whether a feature of one account logically supports another, while each count must still be proved.
The women, both in their 30s, had met Limen while out in a large rural town. They went to a party at his home, where there was music, dancing, alcohol and cannabis. They stayed overnight. One woman woke to find Limen raping her; she later found her friend, who said she had also been sexually attacked. Toxicology reports did not indicate that either had been drugged. The judgment said the interaction of alcohol and drugs may instead have caused sleepiness.
At trial, the judge directed the jury to consider each count separately. The prosecution’s closing address referred to the women’s accounts as “strikingly similar”, causing concern for the defence. The trial judge gave no direction on cross-support. The Supreme Court said that direction was favourable to Limen and that the prosecutor’s rhetorical reference did not require correction by the judge.
The court said that where the prosecution intends to argue that one complainant’s evidence supports a count concerning another, it should raise the point with the judge outside the jury’s presence. The defence should be heard and the judge should rule before closing addresses. A judge may then identify relevant common features for the jury, while ensuring that jurors assess each count on its own evidence. One proven count does not automatically make another account more reliable or establish another count.
The judgment also distinguished cross-support between allegations in the same trial from corroboration in its technical legal sense, which requires independent evidence supporting the accused’s involvement. It said cross-support depends on the accounts’ evidential relationship and can be undermined by a reasonable possibility that witnesses jointly concocted their accounts. Merely discussing experiences or supporting one another does not establish such concoction.
Although the Supreme Court considered there was sufficient evidence for the women’s accounts to support each other, it concluded that the trial judge’s directions did not prejudice Limen. The appeal was dismissed.