White, R. v

Where sufficient evidence raises an issue whether the complainant consented, or whether the defendant reasonably believed there was consent, the evidential presumptions in section 75 of the Sexual Offences Act 2003 do not apply. The issues must instead be left to the jury under the ordinary statutory provisions governing consent and reasonable belief.

A section 75 direction is reserved for the rare case in which sufficient evidence has not raised one or both issues. An unjustified and unexplained direction suggesting that the defendant bears a burden of proof may render a conviction unsafe, particularly where it fails to answer the jury’s factual question.

The appellant was convicted at the Crown Court at Peterborough of assault by penetration. The sole issue was whether the complainant had consented to digital penetration and to photographs being taken.

The complainant’s case was that she had not consented and may have been asleep. The appellant’s case was that she had consented, posed for the photographs and later viewed them. The trial judge directed the jury on the evidential presumptions arising where a complainant was asleep, both in the summing-up and in answer to a jury question about prior consent followed by sleep.

The appellant appealed against conviction and sentence with leave. The central issue was whether the erroneous section 75 directions left the conviction safe.

1. Appeal allowed. The conviction was unsafe because the judge gave inappropriate and insufficiently explained directions under section 75 of the Sexual Offences Act 2003.

2. Section 75 creates evidential presumptions where its statutory conditions are proved, including where the complainant was asleep. Its operation is conditional. Where sufficient evidence raises an issue that the complainant consented, or that the defendant reasonably believed in consent, the statutory route is unavailable and the issues must be left to the jury under section 74 and the elements of the offence.

3. There was plainly sufficient evidence in this case. The appellant’s evidence was that the complainant consented. The jury’s question also proceeded on an assumption that she had agreed to the penetration and photographs before falling asleep. It was therefore neither necessary nor appropriate to direct on section 75.

4. The judge’s statement that sleep placed an evidential burden on the appellant to satisfy the jury on the balance of probabilities was apt to confuse. The judge did not explain the asserted burden or tailor the direction to the evidence. The repeated direction in response to the jury’s question was especially problematic. On the factual assumption in that question, the correct answer was that the appellant would have a defence.

5. R v Zhang [2007] EWCA Crim 2018 was irrelevant because it depended on its own facts and the summing-up in that case. Counsel’s failure to assist the judge did not cure the misdirection.

• Court of Appeal (Criminal Division) — allowed the appeal and held the conviction unsafe: [2010] EWCA Crim 1929.
• Crown Court at Peterborough — convicted the appellant on 29 October 2009 of assault by penetration and sentenced him to two years’ imprisonment.