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[1] The appellant was indicted, together with two co-accused, on a charge of rape. The case first called at a preliminary hearing on 22 October 2012. After two further preliminary hearings, a trial diet was fixed for 22 April 2013. Prior to this, the appellant had timeously lodged a special defence of consent and a notice of incrimination against one of his co-accused.
[3] On the first day of the trial on 22 April 2013, but before the trial had commenced, counsel sought leave to argue the minute though late. The advocate depute opposed this motion, although he accepted that no prejudice was caused to the Crown by the matter being raised late.
[4] The trial judge narrates in her report to us the argument advanced before her on behalf of the appellant as follows:
Counsel argued that the police should have cautioned the appellant and should have given him the opportunity to get advice from a solicitor. He was the householder of a flat in which the police had been told a sexual assault had occurred in which one of the perpetrators was the tenant of the flat. He was present at the flat within a few hours of the report of the crime. It was unfair to ask him any questions as he was a suspect.”
[4] The trial judge decided to refuse leave, in terms of section 79(1) of the Criminal Procedure (Scotland) Act 1995, for the preliminary issue of the admissibility of this evidence to be heard. She summarised her reasons for doing so in her report to her as follows:
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