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R v White [2010]

Facts

  • The defendant took pictures of the victim as he digitally penetrated her vagina; at which time the victim was asleep
  • He was convicted on the evidential presumption that the victim was asleep at the time of the photos
  • The defendant claimed that consent to the photos had been forthcoming prior to the shoot, but the victim had fallen asleep during the photo preparation

Issue

  • Was the conviction safe?

Decision

  • No

Reasoning

  • The judge had failed to explain to the jury that the evidential burden created by section 75 SOA 2003 could be discharged by his evidence that consent had been given prior to the victim falling asleep
  • This decision is criticised as allowing s 75 burdens to the discharged too easily
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