R v Zhang [2007]

R v Zhang [2007] EWCA Crim 2018, the Court of Appeal addressed issues related to the interpretation and application of Section 75 of the Sexual Offences Act 2003. The court emphasised the importance of avoiding the elevation of the evidential presumption in Section 75 into a conclusive presumption.

The complainant, a former employee of Zhang, the defendant, alleged that Zhang raped her in a hotel room while she was intoxicated and in and out of consciousness. To establish the offence of rape, the prosecution had to prove three elements: sexual intercourse had occurred, the complainant had not consented, and Zhang did not reasonably believe that she had consented.

Under Section 75 of the Sexual Offences Act 2003, if it is proven that the complainant was asleep or unconscious, and Zhang knew this, the complainant would be presumed not to have consented unless proven otherwise by Zhang. Additionally, Zhang would be presumed not to have reasonably believed that the complainant consented unless proven otherwise by Zhang.

Zhang was convicted of rape in the lower court and appealed, arguing that the judge had misdirected the jury by treating the evidential presumption in Section 75 as conclusive. The Court of Appeal dismissed the appeal, upholding Zhang's conviction for rape. The court examined the judge's direction to the jury and concluded that, taken as a whole, it did not elevate the presumption in Section 75 to a conclusive presumption.

Hallet LJ, delivering the judgment, highlighted that the jury's task was to determine whether the prosecution had proven, beyond a reasonable doubt, that the complainant did not consent and that the defendant did not reasonably believe she had consented. The judge's instructions were clear, and the jury understood their responsibility.

Additionally, Hallet LJ advised trial judges to exercise caution and avoid elevating the evidential presumption in Section 75 to a conclusive presumption. The court emphasised that trial judges should consult with counsel when faced with legal complexities to ensure proper guidance on the law.

This decision reinforces the importance of clear and accurate jury instructions in cases involving sexual offences. It also underscores the need for trial judges to carefully consider legal nuances and seek guidance when interpreting and applying statutory provisions, particularly those involving presumptions related to consent in cases of sexual assault.
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