Commissioner of Police v Stephen Alleyne
| Jurisdiction | Barbados |
| Judge | Chandler JA,Narine JA,Belle JA |
| Judgment Date | 15 April 2021 |
| Neutral Citation | BB 2021 CA 2 |
| Docket Number | Magisterial Criminal Appeal No. 7 of 2019 |
| Court | Court of Appeal (Barbados) |
| Year | 2021 |
The Hon. Rajendra Narine and The Hon. Francis Belle, Justices of Appeal and The Hon. William Chandler, Justice of Appeal (Acting).
Magisterial Criminal Appeal No. 7 of 2019
IN THE SUPREME COURT OF BARBADOS
COURT OF APPEAL
Ms. Krystal Delaney Attorney-at-Law for the Appellant
Mr. Arthur Holder Attorney-at-Law for the Respondent
Chandler JA (Acting):
Before this Court is a Notice of Appeal filed 26 July 2019 against the decision of His Worship Mr. Elwood Watts, the Learned Magistrate for District B Magistrate's Court, Oistins, to dismiss the charge of rape of a male complainant against the Respondent. The Appellant asks this Court to set a side that decision.
The respondent was charged with the offence of having sexual intercourse with H N without his consent on the 2 August 2015 knowing that the said H N did not consent to intercourse or being reckless as to whether he consented contrary to section 3(6) of the Sexual Offences Act, Cap. 154 (Cap. 154).
On 17 February 2019 when the respondent appeared in the Magistrate's court, the Learned Magistrate enquired of the virtual complainant whether he was male or female, he responded that he was male. A similar enquiry of the then accused, now the respondent, revealed that he was also male. The Learned Magistrate spoke with the Prosecutor and indicated that there was incongruity between the charge and the persons presenting before the court. He invited Mr. Arthur Holder, counsel for the respondent, and the police prosecutor to make submissions on whether the charge of rape was appropriate where the virtual complainant was male.
The Magistrate's reasons for decision indicate that Mr. Holder submitted that section 3(6) of Cap. 154 (sec 3(6)) defined the offence of rape and that it was pellucid in its import that rape in so far as it involved penetration of the anus required compliance with that subsection which reads “… in circumstances where the introduction of the penis of a person into the vagina of another would be rape.” The circumstances where a penis penetrates a vagina, Mr. Holder submitted, was where, in the ordinary course of things, a male and a female were concerned and not a male and a male.
Assistant Superintendent of Police Blackman submitted that section 3 (1) of Cap. 154 (sec 3(1)) spoke specifically to rape being committed where “a person” had sexual intercourse with another person. The offence, in his submission, was gender neutral and therefore rape could be committed by a male on a male.
We deem it appropriate to now set out the applicable law, the provisions of which are not disputed save and except for the varying interpretations which counsel have sought to place on them.
There is no divide between the parties that the applicable law is found in sections 3(1) and (6) of Cap. 154 and section 9 (sec 9) of Cap. 154 which we now reproduce:
Sec 3(1) “(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 (emphasis added).
(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 vagina of another would be rape,
(a) of the penis of a person into the anus or mouth of another person; or
(b) an object, not being part of the human body, manipulated by a person into the vagina or anus of another.”
Sec 9 of Cap. 154 provides that:
“Any person who commits buggery is guilty of an offence and is liable on conviction on indictment to imprisonment for life.”
The single ground of appeal under section 243 (g) of the Magistrate's Court Act Cap. 116A is that the Magistrate's decision is erroneous in point of law.
The sole issue for our determination is whether sec 3 creates the offence of rape where a male has sexual intercourse with another male by the penetration of the anus by the penis without consent or is reckless as to whether the other person consents to the intercourse.
Ms. Krystal Delaney, counsel for the appellant, referred to the preamble of Cap. 154 which was intended “to revive and reform the law relating to sexual crimes” and submitted that sec 3 was intended to reform the law relating to sexual crimes and broaden the scope of the offence of rape beyond its previous definition. She submitted, therefore, that the reference to “any person” and “another person” in sec 3(1) does not differentiate between male and female.
Counsel submitted that sec 3(6) is intended to provide that rape is committed in circumstances where the introduction of the penis into a vagina would be rape; namely, where the complainant did not consent and with the knowledge or belief that the complainant was not consenting. Therefore, the introduction of a penis or objects into the anus or vagina of another person or into the mouth of another person would also amount to rape.
Ms. Delaney also submitted that sec 3 was not intended to confine the gender of the complainants to only female, as the Learned Magistrate held. Such an interpretation would result in situation where a person convicted of penetration of a woman's vagina with an object with the requisite mens rea would be liable to imprisonment for life contrary to sec 3(2), whereas, a person who is convicted of penetration of a man's anus with an object would be liable to imprisonment for only 10 years for serious indecency contrary to sec 12(1). Such an interpretation, counsel argued, would lead to arbitrary discrimination on gender where offences against women would be punished more harshly than similar offences against men. This she submitted would give the appearance that the law views offences against women as more serious than similar offences committed against men. Accordingly, counsel urged upon us that the offence of rape is now defined in gender neutral terms.
Counsel further submitted that the interpretation which the Learned Magistrate placed on sec 3(6) namely, that a complainant of rape could only be female and an accused could only be male, would be a regression and would not have “reformed the law relating to sexual crimes as intended by Cap. 154”.
Counsel referred to the 1994 the amendments to the offence of rape occasioned by section 142 of the Criminal Justice and Public Order Act 1994 of the United Kingdom which reads as follows:
“It is an offence for a man to rape a woman or another man.”
This section, Ms. Delaney opined, “redefined the offence of rape to include non-consensual anal intercourse with a man or a woman”. She relied upon paragraph 20– 2a of Archbold Criminal Pleading, Evidence and Practice 1996 Sweet & Maxwell, London Volume 2 (Archbold).
It was Ms. Delaney's contention that the amendments to Cap. 154 and the Criminal Justice and Public Order Act 1994 (UK) constituted a shift in the law as it relates to rape to offer protection to both male and female complainants.
In addition, counsel argued that section 4 of the Crimes ( Sexual Offences) Act 1980 which amended section 2A of the Crimes Act 1958 (The 1958 Act) of the Australian state of Victoria was similar to sec 3(6) and was inserted into the 1958 Act by the Crimes ( Sexual Offences) Act 1980. The Court of Appeal of Victoria in her view stated that this amendment significantly changed the pre-existing common law definition of rape. Amongst other things the amendments were intended to make the crime of rape “gender neutral” so as to render it capable of being committed by man or woman and by the use of penis or objects. R v Jon Edgar Hewitt [1996] VSC 26 ( Hewitt) at paragraph 5 per Winneke P.
It was Ms. Delaney's further submission that, since sec 3(6) is drafted similarly to the Victoria legislation, this court should place an interpretation similar to that of the Australian court on sec 3(1) and (6) so that the offence of rape could be committed against a male or female. Such an interpretation, she finally submitted, would “reform the law relating to sexual offences” and would ensure that the law does not discriminate against persons on the basis of sex.
Mr. Arthur Holder, counsel for the respondent, submitted that the definition of rape in sec 3(1) is confined to vaginal sexual intercourse. Sec 3(6), he argued, expands the definition of rape to include the insertion of objects into the vagina or anus of a woman. Counsel urged us to apply the ordinary interpretation to the words used in sec 3(1) which would confine rape to the insertion of a penis into the vagina of a woman.
Counsel further submitted that the appellant was incorrectly charged with the offence of rape since the offence of buggery is defined in sec 9 of Cap. 154. We take this submission to infer that the charge of buggery was the more appropriate charge. Accordingly, counsel submitted that the Learned Magistrate was correct in law in dismissing the charge of rape against the appellant.
I think it important to start my analysis with a brief excursus into the common law relating to rape and buggery and the transition to sec 3(6). It is not denied that, prior to the passage of Cap. 154 in 1992, the offence of rape could be committed only by the insertion of the penis into the vagina. The common law defined rape as consisting in “having unlawful sexual intercourse with a woman without her consent by force, fear or fraud. 1 East PC 434: and…1 Hale 627 et seq. Archbold, Pleading, Evidence and Practice...
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