Commissioner of Police v Stephen Alleyne

• Jurisdiction: Caribbean States
• Judge: Saunders,Wit,Anderson,Rajnauth-Lee,Barrow,Jamadar,Mr Justice Barrow,Mr Justice Jamadar,Mr Justice Burgess
• Judgment Date: 01 February 2022
• Court: Caribbean Court of Justice
• Docket Number: CCJ Appeal No BBCR2021/002

Between

Commissioner of Police

Appellant

and

Stephen Alleyne

Respondent

[2022] CCJ 2 (AJ) BB

Before

the Honourable: Mr Justice A Saunders, PCCJ

Mr Justice J Wit, JCCJ

Mr Justice W Anderson, JCCJ

Mme Justice M Rajnauth-Lee, JCCJ

Mr Justice D Barrow, JCCJ

Mr Justice A Burgess, JCCJ

Mr Justice P Jamadar, JCCJ

CCJ Appeal No BBCR2021/002

BB Magisterial Criminal Appeal No 7 of 2019

IN THE CARIBBEAN COURT OF JUSTICE

APPELLATE JURISDUCTION

Statute — Interpretation — Sexual Offences Act Cap 154, s 3(1) — Respondent charged with rape of another man — Respondent discharged by Magistrate — Magistrate found that rape did not include anal intercourse between men — Magistrate decision upheld by Court of Appeal-Meaning of ‘rape’ — Whether a man can be charged for rape of another man.

SUMMARY

Stephen Alleyne (‘Alleyne’) was charged with the offence of Rape contrary to the Sexual Offences Act (‘the Act’). Before the start of the evidence in his trial he was discharged by the Magistrate after hearing submissions that the charge alleged that he had sexual intercourse with another man without his consent. The Magistrate decided that the crime of rape in (s 3(1)) did not extend to anal intercourse between men. On appeal by the Commissioner of Police the majority in the Court of Appeal agreed with the Magistrate's decision. The Commissioner of Police appealed to this Court.

The Court, in a judgment authored by Barrow JCCJ, found that on a correct interpretation of s 3(1) of the Act, a man can be charged for the rape of another man. The Act uses gender neutral language and extends the definition of rape to include anal penetration. The Court found that considering the literal meaning of the words used in the Act, their context, and comparable legislation, any person, male or female, can be the offender or victim of rape. The retention in the legislation of the offence of buggery did not prevent males from being charged with rape, as the Interpretation Act (s 22) allows offenders to be charged with either offence, once they are not punished twice for the same act. The Court noted that it was aware that the issue of the constitutionality of the offence of ‘buggery’ has been adjudicated in several courts, including within the Caribbean. However, the issue did not arise for decision, and in the circumstances, it was the duty of the Court to exercise proper judicial restraint and refrain from deciding an issue that was not argued before it.

In a separate judgment, Jamadar JCCJ, entirely supported the opinion of Barrow JCCJ and agreed that the Act permits a man to be charged for rape of another man. Jamadar JCCJ, found when judges are interpreting legislation, they must also respect the fundamental rights in the Constitution and consider a State's international treaty commitments. A gender-neutral interpretation of the Act respects the right to protection of the law regardless of sex, and the prohibition against discriminatory laws under the Constitution. It also respects Barbados' international law commitments to ensure equality before the law regardless of gender and the enjoyment of fundamental rights and freedoms without restrictions based on sex.

In a dissenting judgment, Burgess JCCJ found that the Act does not create an offence of rape of a male by another male and would have dismissed the appeal. He considered that under the common law, only a man could commit rape and only against a woman. He found that s 3 of the Act does not purport to do anything as revolutionary as changing the common law to create an offence of rape by a male of another male. For Parliament to do so, it would have had to express that intention in clear and unambiguous language. He considered the natural and ordinary meaning and legal meaning of the words used in s 3, as well as their context in the Act as a whole and the rules of natural justice. Burgess JCCJ found that the words ‘sexual intercourse’ used in creating the statutory offence means penile-vaginal penetration. He found that s 3(6) of the Act, modifies the common law by providing that, not only a man can commit the actus reus of rape, but any of the parties to sexual intercourse, a male, or a female, can do so.

The appeal was therefore allowed, and the case remitted to the Magistrate's Court for it to proceed with the preliminary inquiry.

Cases referred to:

A-G v Joseph [2006] CCJ 3 (AJ), (2006) 69 WIR 104; A-G v Prince Ernest Augustus of Hanover [1957] AC 436; Baptiste v Alleyne (1970) 16 WIR 437; Belize International Services Ltd v A-G of Belize [2020] CCJ 9 (AJ) BZ, [2021] 1 LRC 36; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591; Canada Sugar Refining Co v The Queen [1898] AC 735; Colquhoun v Brooks (1889) App Cas 493; Commissioner of Police v Alleyne (Barbados CA, 15 April 2021); Duport Steels Ltd v Sirs [1980] 1 WLR 142; Fraser v Greenaway (1992) 41 WIR 136; Grey v Pearson [1857] 6 HL Cas 61; Guyana Geology and Mines Commission v BK International Inc [2021] CCJ 13 (AJ) (GY); Hinds v R [1975] 24 WIR 326; Hoyte v The Queen (Barbados CA, 6 April 2000); Johar v Union of India AIR 2018 SC 4321; Jones v A-G of Trinidad and Tobago [2018] 3 LRC 651; Lawrence v Texas 539 US 558 (2003); Longford, The (1889) 14 PD 34; Marin v R [2021] CCJ 6 (AJ) BZ; McCoskar v the State [2005] FJHC 500 (Fiji HC, 26 August 2005); McEwan v A-G of Guyana [2018] CCJ 30 (AJ), (2019) 94 WIR 332; National Coalition for Gay and Lesbian Equality v Minister of Justice [1998] ZACC 15; Nervais v R [2018] CCJ 19 (AJ), (2018) 92 WIR 178; Orozco v A-G of Belize (Belize SC, 10 August 2016); Pant v Nepal Government (2008) 2 NJA LJ 261; Persaud v Nizamudin [2020] CCJ 4 (AJ) (GY); R v G [2004] 1 AC 1034; R v Hewitt [1997] 1 VR 301; R v Jacobs (1817) Russ & Ry 331, 168 ER 830; R v Secretary of State for Justice [2013] 3 WLR 1076; R (Quintavalle) v Secretary of State for Health [2003] 2 WLR 692; Sakshi v Union of India [2005] 2 LRC 111; Smith v Selby [2017] CCJ 13 (AJ) (BB), (2017) 91 WIR 70; SW v United Kingdom (1996) 21 EHRR 363; The Queen v Flowers [2020] CCJ 16 (AJ) BZ, [2020] 5 LRC 628; Wik Peoples v State of Queensland (1997) 23 CLB 201.

Legislation referred to:

Australia – Crimes Act, 1958 (Vic), Crimes (Sexual Offences) Act, 1980 (Vic); Barbados – Constitution of Barbados 1966, Interpretation Act, Rev Ed 1971, Cap 1, Sexual Offences Act, Rev Ed 1971, Cap 154; Trinidad and Tobago – Larceny Ordinance, Rev Ed 1950, Chap 4 No 11; United Kingdom – Sexual Offences Act, 2003.

Treaties and International Materials referred to:

Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.

Other Sources referred to:

Antoine R-M, Commonwealth Caribbean Law and Legal Systems (2nd edn, Routledge-Cavendish 2008); Bindra N S, Rao M N and Dhanda A, N S Bindra's Interpretation of Statutes (10th edn, LexisNexis Butterworths 2007); Butler, T R Fitzwalter and Mitchell S, Archbold: Pleading, Evidence and Practice in Criminal Cases (38th edn, Sweet & Maxwell 1973); Collin's English Dictionary (3rd edn, 1991); Galand A S, UN Security Council Referrals to the International Criminal Court: Legal Nature, Effects and Limits (Brill 2018); Hale M, The History of the Pleas of the Crown (1736); Merriam-Webster's Collegiate Dictionary (10th edn, 1993); Oxford Advanced Learner's Dictionary of Current English (5th edn, 1995); Robinson T, Bulkan A and Saunders A, Fundamentals of Caribbean Constitutional Law (Sweet & Maxwell 2015); Williams G, Textbook of Criminal Law (2nd edn, Stevens 1983).

Appearances

Ms Krystal Delaney and Mr Oliver JM Thomas for the Appellant

Mr Arthur E Holder with Ms Rhea Layne, Ms Mariah Arthur, Mr Ensley Grainger and Ms Nkasi Blair for the Respondent

of

The Honourable Justices Saunders, Wit, Anderson, Rajnauth-Lee, Barrow and Jamadar

Delivered by

The Honourable Mr Justice Barrow

and

CONCURRING JUDGMENT

of

The Honourable Mr Justice Jamadar

and

DISSENTING JUDGMENT

of

The Honourable Mr Justice Burgess

on the 1 st day of February 2022

Mr Justice Barrow

JUDGMENT OF THE HONOURABLE

1 The issue to decide on this appeal is whether the law permits a man to be charged for rape of another man.

The Legislation

2 Before the start of the evidence in his trial for the offence of rape contrary to s 3(1) of the Sexual Offences Act 1 (‘the Act’), Stephen Alleyne was discharged by the Magistrate for District B Magistrate's Court after hearing submissions. Alleyne had been charged that he “… at the parish of Christ Church within the jurisdiction of the Magistrate of District ‘B’ on the 2 ^nd day of August 2015 had sexual intercourse with HN (abbreviation) without his consent and knew that HN did not consent to the intercourse or was reckless as to whether he consented to the intercourse.” As the pronouns used in the charge indicated, the alleged victim was a man.

3 The Magistrate decided that the crime of rape did not extend to anal intercourse between men, and a majority in the Court of Appeal (Chandler JA (Ag) and Narine JA, Belle JA dissenting) later upheld him. The provisions of the Act which gave rise to this interpretation are as follows:

• 3.(1) Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the intercourse or is reckless as to whether the other person consents to the intercourse is guilty of the offence of rape and is liable on conviction on indictment to imprisonment for life.

• …

• (6) For the purposes of this section “rape” includes the introduction, to any extent, in circumstances where the introduction of the penis of a person into the...