Pre-trial appeal against limitations on evidence relating to incrimination defence refused by High Court

About this case:

• Citation:
  [2025] HCJAC 8
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Pa Samba Saye was indicted on four charges, the others relating to possession of cannabis and attempting to pervert the course of justice. He argued that the limitations on paragraphs (iii) through (viii) of the admitted evidence should not have been granted due to the trial judge confusing the matter with his separate special defence of consent.

The appeal was heard by Lord Carloway, Lord Matthews, and Lord Beckett. Jackson KC and Deans, advocate, appeared for the appellant and CM Murray AD for the Crown.

Case became confused

It was libelled in the principal charge that the appellant raped the complainer RM while she was under the influence of alcohol on 19 June 2021 at an address in Glasgow. At trial he lodged two special defences of consent and of incrimination, naming two persons, SKOD or AS, as the incriminees. The court granted an application under section 275(1) of the Criminal Procedure (Scotland) Act 1995, in the absence of opposition from the Crown.

The admitted statements set out that, prior to having sexual intercourse, the appellant and the complainer had engaged in certain consensual sexual activity. This was followed by a statement that shortly prior to charge 1 taking place, they engaged in consensual intercourse. The picture which the appellant believed to be created by this evidence was of a consensual act of intercourse different from that in the charge, followed by a separate non-consensual act committed later by one or other of the incriminees.

At a continued procedural hearing in June 2024, the Crown moved to limit the extent of the evidence by prohibiting questioning in respect of paragraphs (iii) to (viii), which 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. This motion was granted, with the PH judge noting that the complainer’s evidence was of being raped by one person, with any sexual contact on that night being non-consensual.

The appellant submitted that the case had become confused because he had lodged special defences of both incrimination and consent. The basis of the challenged paragraphs of the section 275 application related solely to the incrimination defence and was separate to, and inconsistent with, the earlier submitted defence of consent. Evidence that the complainer may have been subjected to non-consensual sex by others on a later occasion had no bearing on whether she consented to sex with the appellant on an earlier occasion.

Deflect jury’s attention

Delivering the opinion of the court, Lord Carloway began: “The appellant accepts that he had intercourse with the complainer. The charge is one of rape of the complainer by the appellant. This refers to the episode of intercourse which admittedly took place between them. Consent on that occasion is the only issue for trial.”

He continued: “The defence of incrimination is, in that context, irrelevant since it cannot be said that the admitted intercourse which is libelled in the charge was carried out by a third party. There is no suggestion of mistaken identity in relation to that episode. The evidence concerning the activities of others is therefore inadmissible at common law.”

Considering the impact of the appellant’s application being fully accepted, Lord Carloway said: “If evidence of an episode of intercourse with the named persons were admissible, it would be struck at by section 274(1)(b) as it relates to sexual behaviour which does not form part of the subject-matter of the charge. It could not be rendered admissible under section 275(1).”

He concluded: “Even if it were regarded as relevant, since its probative value would not outweigh the risk of prejudice to the proper administration of justice. Its admission would tend to deflect the jury’s attention from the only question which they will require to answer.”

The appeal was therefore refused.