Pa Samba Saye v. His Majesty’s Advocate [2025] HCJAC 8

Note of Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellant was indicted to a Preliminary Hearing at Glasgow High Court on 16 November 2022 on 4 charges including a charge of rape of RM at an address in Glasgow on 19 June 2021 (charge 1). The charge alleged that the complainer was raped whilst she was under the influence of alcohol and asleep and incapable of giving or withholding consent and then after she had woken. The appellant lodged a special defence of consent together with a special defence of incrimination, stating that the rape was carried out by one or two named individuals (SKOD or AS). On 6 February 2023, at a continued Preliminary Hearing, the court granted an application under section 275(1) of the 1995 Act, which was not opposed by the Crown which included:- “(ii) shortly prior (the time period is thought to be minutes) to charge (1) taking place … the complainer and the accused engaged in consensual penile/vaginal sexual intercourse.” Further paragraphs of the application included:- “(iii) is that, if the rape in charge (1) had been committed, it was not committed by the appellant but by one or other of the named persons.” The remaining paragraphs (iv) to (viii) related to the finding of the DNA of the appellant on the person or clothing of the two named persons and the DNA of the complainer on the boxer shorts of one of the named persons. On 10 June 2023, at a further continued Preliminary Hearing, the Crown sought, in terms of section 275(9) of the 1995 Act, to limit the extent of the evidence by prohibiting questioning in respect of paragraphs (iii) to (viii). The motion was granted. The appellant appealed. On behalf of the appellant it was submitted that the case had become confused because the appellant had lodged special defences of both consent and incrimination. It was the appellant’s position that he had consensual sex earlier in the evening and that the rape libelled was committed by another person. It was submitted that the Crown could not convert an admission of consensual sex earlier in the day into an admission regarding the conduct in the libel. On behalf of the Crown it was submitted that the issue was not whether the sexual acts between the complainer and the appellant took place but whether the complainer consented to them and para iii of the application amounted to an entirely different line of defence and that whether or not either or both of the named incriminees had any sexual contact with the complainer could not assist on whether the complainer consented to sexual acts with the appellant. The court refused the appeal. The only issue at trial was whether the admitted episode of sexual intercourse between the appellant and the complainer was consensual and any incrimination of others relating to conduct outwith the libel carried out by a third party was irrelevant and inadmissible at common law. The court considered that if evidence of an episode of intercourse with the named incrimnees was admissible, it would be struck at by section 274(1)(b) as it would relate to sexual behaviour which does not form part of the subject matter of the charge and would be inadmissible under section 275(1) as even if it was regarded as relevant its probative value would not outweigh the risk of prejudice to the proper administration of justice as would likely result in the jury’s attention being deflected from the key issue at trial.