R v Zhang [2007] EWCA Crim 2018

Key point

The Court of Appeal advised trial judges to take care not to elevate the evidential presumption in s.75 Sexual Offences Act 2003 into a conclusive presumption

The complainant (C), an ex-employee of the defendant (D), claimed that D raped her in a hotel room at a time while she was drunk and in and out of consciousness
To prove that D committed rape, it had to be proven that:
- sexual intercourse had occurred;
- C had not consented; and
- D did not reasonably believe that C had consented
Under s.75 Sexual Offences Act 2003, if it is proven that C was asleep or unconscious and D knew as such, C would be taken not to have consented, unless proven otherwise by D, and D would be taken not to have reasonable believed that C consented, unless proven otherwise by D
D was convicted of rape in the lower court
D appealed on the basis that the judge had erred in his direction to the jury by directing the jury to find that C had not consented and that D did not reasonably consent if they found that D was asleep or unconscious, elevating the evidential presumption under s.75 Sexual Offences Act into a conclusive presumption

Appeal dismissed; D’s conviction of rape was upheld
The judge’s direction to the jury, taken as a whole, had not elevated presumption of s.75 to a conclusive presumption

“In our view the jury could have been in no doubt whatsoever what they had to decide, namely had the prosecution proved so that they were sure that the complainant did not consent and the defendant did not reasonably believe that she had consent?”: [10]
“Trial judges would be well advised to heed guidance given by this court in the past that they should consult with counsel where any matters of any difficulty on the law arise.’: [10]