Director of Public Prosecutions v Tan Yeong (a pseudonym)[1]

The Director of Public Prosecutions appealed against the decision of a trial judge who ordered a permanent stay of a rape charge against the respondent. The respondent was charged with raping a woman after he removed a condom during sexual intercourse, despite the complainant stating that the condom was to be worn. The respondent argued that the complainant consented to the act of sexual intercourse, but not to the act of removing the condom, and therefore there was no consent to the act of sexual penetration as defined in s 35 of the Crimes Act 1958.

The court was required to decide whether the judge erred in ordering a permanent stay of the rape charge. The court considered whether the judge applied the correct legal principles and whether the evidence supported the conclusion that the complainant consented to the act of sexual penetration. The court also considered whether the judge was required to direct the jury on the meaning of consent under s 46 of the Jury Directions Act 2015.

The court held that the judge erred in ordering a permanent stay of the rape charge. The court held that the definition of ‘sexual penetration’ in s 35 of the Crimes Act 1958 was the correct definition to apply in this case, and that the complainant did not consent to the act of sexual penetration as defined in that section. The court held that the judge was required to direct the jury on the meaning of consent under s 46 of the Jury Directions Act 2015, but the judge did not do so. The court held that the error was not trivial or insignificant, and that it affected the outcome of the case.

The appeal was allowed, the decision of the trial judge was set aside, and the matter was remitted to the County Court for further proceedings.