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Senior Stipendiary Magistrate of the NCD Court at Port Moresby; Ex Parte Acting Public Prosecutor, The State v [1976] PNGLR 344 (27 August 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 344 - The State v The Senior Stipendiary Magistrate of the NCD Court at Port Moresby; Ex Parte The Acting Public Prosecutor 

[1976] PNGLR 344

SC103

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE STATE

V

THE SENIOR STIPENDIARY MAGISTRATE, EX PARTE THE ACTING PUBLIC PROSECUTOR

Waigani

Prentice DCJ Williams J Saldanha J

23 August 1976

27 August 1976

INFERIOR COURTS - District Courts - Jurisdiction - When Magistrate functus officio - No power in magistrate to alter conviction or sentence once pronounced - Nature of District Courts.

The District Courts of Papua New Guinea are not courts of record but creatures of statute (viz. the District Courts Act 1963) and as such have only those powers vested in them by statute. Accordingly, the sentencing power of a magistrate of the District Courts is exhausted once he has pronounced sentence; he has, subject to the courts power to correct a slip, no power to make any alteration which amounts to a fresh adjudication; if any alteration goes further than mere correction of an error or a mistake, that part of the conviction or order may be quashed.

Kennedy Allen’s Justices Act of Queensland 3rd ed. p. 401; McRory v. Findlay (1911), 48 Sc. L.R. 314; Reg. v. Essex Justices; Ex parte Final [1963] 2 Q.B. 816 at p. 820; Rex v. Manchester Justices; Ex parte Lever [1937] 2 K.B. 96 and Rex v. Sheridan [1937] 1 K.B. 223 followed and applied.

Fitzgerald v. Newing; Ex parte Newing [1965] Q.W.N. 14; Gregory v. Murphy [1905] VicLawRp 88; [1906] V.L.R. 71; Gray v. Jones [1948] SAStRp 13; [1948] S.A.S.R. 201 referred to.

Held

Accordingly where on a charge of being in possession of goods reasonably suspected of being stolen under s. 18a of the Police Offences Act, a District Court magistrate convicted the accused and sentenced him to 2½ months’ imprisonment with hard labour, and after adjourning the matter proceeded to take further evidence, and then suspended the sentence upon a bond to be of good behaviour being entered into, the sentence and order of the District Court should be removed into the Supreme Court and quashed and there should be substituted therefor confirmation of the conviction and sentence of 2 ½ months’ imprisonment with hard labour.

Certiorari

This was the return of an order nisi for certiorari directed to the Senior Stipendiary Magistrate of the National Capital District made on the motion of the Acting Public Solicitor, arising out of District Court proceedings on a charge of being in possession of goods reasonably suspected of being stolen under s. 18a of the Police Offences Act, in which the magistrate having convicted and sentenced the accused to 2½ months’ imprisonment with hard labour, adjourned the proceedings and proceeded to take further evidence, and then suspended the sentence upon a bond to be of good behaviour being entered into.

Counsel

KB Egan for the applicant (Public Prosecutor)

Cur. adv. vult.

27 August 1976

PRENTICE DCJ WILLIAMS J SALDANHA J:  On the return of an order nisi for certiorari directed to the Senior Stipendiary Magistrate of the National Capital District made on the motion of the Acting Public Prosecutor, submissions have been made to the Court on behalf of the latter. The learned magistrate was not represented, but the Court has had the benefit of an affidavit from him. The person convicted in the proceedings with which we are concerned has had, we were informed, the benefit of the Public Solicitor’s advice. He is not represented and may be thought to be indifferent to the outcome of these proceedings, as he has since been sentenced to imprisonment for 18 months, we were informed, on a charge of breaking, entering and stealing from a trade store.

The matter arises from a District Court hearing of a criminal charge against Leilolo Toripi on 16th and 17th March, 1976. After reading the affidavits of Mrs. Lloyd the Court clerk, sergeant Major Marru the police prosecutor, and the learned Magistrate, the Court is left in some degree of uncertainty as to the precise sequence of events on 17th March, 1976. It is satisfied at least that the following account sets out the events which occurred.

On 16th March, Mr. Toripi was charged before the District Court with an offence under s. 18 (a) of the Police Offences Act (“goods in custody”). The Court file consisting of some four pages indicates that the charge was on 16th March, read and explained to the accused, and the necessity for an explanation from him of his possession of the goods, set out. The defendant then made a short statement admitting possession and knowledge that the goods were stolen. The Court directed a verdict of guilty be entered. The Bench paper is noted “Remanded to tomorrow 1.30 to sentence. Remanded in custody” and signed.

The next entry reads: “17th March 1976. Defendant appears in custody. No previous. Defendant is again asked if he has anything to say. 2½ months I.H.L.” The magistrate’s signature follows. The next entry reads: “17th March 1976. Defendant applies to be dealt with as first offender. Application adjourned to 20th March”. Neither the affidavits filed nor the ingenuity of counsel is able to explain this last mentioned notation. It seems that possibly it was made in error on the file and in relation to some other matter.

The learned magistrate having noted his sentence, apparently turned to other matters one of which involved the same accused. He had occasion to leave the Bench at least twice, once to seek an interpreter, once to procure a law book. During adjournments of the Court he gave instructions to the clerk on one occasion to prepare a warrant of committal, and seemingly on another to have Toripi brought back into court. It had in the meantime become apparent to the magistrate that Toripi’s employer had been in attendance and wished to speak for him. Toripi’s conviction for “goods in custody” was discussed in court with the prosecutor in the light of what had meantime happened to another accused on a charge of “conveying” the very same goods. The court adjourned at lunchtime.

The Bench paper’s next note records that at 2.30 on 17th March Toripi was brought again before the magistrate who heard evidence from his employer and then recorded and signed a notation as follows:

“Court considers s. 613 and says: I adjourned this case yesterday so that, if possible, defendant would not lose his job and I specifically said that that was why I adjourned it. This morning, however, he was charged with a very grave charge and I said that, because of the Court’s practice of not releasing on the first appearance on a breaking and entering charge, no purpose would be served by refraining from sentencing and I sentenced him. The situation is now changed. I exercise my powers under s. 613 and I suspend the 2 ½ months’ sentence and I release the defendant conditionally upon his being of good behaviour for 12 months and attending at the Boroko Police Station each Monday and Wednesday and fulfilling the conditions of the Order I will make this day in the other case. Sentence suspended. Defendant released.”

The police prosecutor on affidavit, asserts that at this point he asked the learned magistrate for an explanation of the court’s authority to amend a sentence already given. The magistrate in his affidavit in effect denies that this occurred.

The statement in Kennedy Allen’s Justices Act of Queensland, (3rd ed.) at p. 401 “... a magistrate is functus officio the moment he has pronounced a conviction by word of mouth ...” appears to put the law correctly, subject to the Court’s power to correct a slip. Similarly, a magistrate’s sentencing power would seem to be exhausted once he has pronounced sentence, McRory v. Findlay[cccxcix]¹. He has “no power to make such an alteration as amounts to a fresh adjudication. If (an) alteration goes further than a mere correction of an omission or a mistake, that part of the conviction or order may be quashed” (op. cit. p. 401). The doubt which might be thought to have been left in that regard by the decision of Jones v. Williams and Roberts[cd]² has been removed in recent years. In Reg. v. Essex Justices; Ex parte Final[cdi]³, a defendant was convicted and fined, but after further representation the information against him was dismissed. On motion to quash the dismissal and for order of mandamus that the conviction and fine be registered, the Divisional Court applied the earlier decisions of Rex v. Manchester Justices; Ex parte Lever[cdii]⁴ and Rex v. Sheridan[cdiii]⁵. Parker L.C.J. at p. 820 stated:

“It is perfectly clear that what the Chairman of the Bench announced amounted to a conviction. There is a dispute as to the actual words used but, whatever version one looks at, it is perfectly clear that the justices intended and were understood to find that the case against the defendant had been proved and to have inflicted a fine of £3.

It is also clear from Rex v. Manchester Justices; Ex parte Lever ([1937] 2 K.B. 96) that there is a complete and effective conviction, although that conviction has not been entered in the register. It is sufficient to quote a passage from the Judgment of Humphreys J. in that case: ‘I find it difficult to treat seriously the argument that a statement by justices, who are a court of competent jurisdiction, that a person who has been tried before them is guilty of the offence charged against him does not constitute a conviction until a clerk has made a record of the finding of the magistrates in a register which the court is required to keep. I also think that the matter is concluded by authority’, that authority being Rex v. Sheridan ([1937] 1 K.B. 223).

That has always been the law and has been reiterated again and again by this court. Mr. Lloyd-Eley, for the defendant, however, while admitting that general principle, nevertheless contends that it does not follow that the justices are functi officio from the moment that they have announced the conviction and that if, before they have passed from that case or dispersed, a matter is drawn to their attention which would make them change their minds, they are at liberty to do so and to substitute an acquittal or indeed, if they have acquitted originally, to substitute a conviction. There is clearly no statutory power to enable them to do so nor do I think that there is any inherent power. They are, in my judgment, functi officio from the moment when they have announced their decision, however inconvenient the result may be.”

Salmon J. agreeing, stated “... Once the justices have convicted or acquitted they are functi officio and cannot alter their decisions”. The Manchester Justices’ case[cdiv]⁶ decision was held binding by another Divisional Court in R. v. Campbell; Ex parte Hoy[cdv]⁷. The Essex Justices’ case[cdvi]⁸ and R. v. Campbell; Ex parte Hoy[cdvii]⁹ were cited with approval and applied by the Full Court of Queensland in Fitzgerald v. Newing; Ex parte Newing[cdviii]¹⁰. In Gregory v. Murphy[cdix]¹¹ it was held by the Full Court of Victoria in construing a section which allowed for correction of errors and omissions on adjudication, that justices had no inherent jurisdiction to alter a decision in fact made. Madden C.J. stated:

“... It is said that justices have an inherent jurisdiction to put things right in their own Court. I think that it is too wide a statement. It is quite clear that justices sit in a Court which has no common law rights. The court of petty sessions is a creature of statute, and has no powers not expressly conferred by statute....”

A similar view has been taken in South Australia in Gray v. Jones[cdx]¹². Napier C.J. held that where an order imposing a fine had been made in a court of summary jurisdiction and the court had dispersed, a judgment had been clearly completed. “... The practice of the court”, his Honour said at p. 204 “forms the law of the court and in a court of record, where the judgment is incomplete until it is drawn up and recorded, the court is entitled to re-consider its decision in the meantime, i.e. until the judgment has been passed and entered. ... But a court of summary jurisdiction is not a court of record. Its judgment is complete as soon as it is pronounced. ...” In R. v. Smith; Ex parte James[cdxi]¹³ it appears that after sentencing a person to imprisonment a magistrate had purported to re-open the hearing and to alter his sentence. It was held by the Full Court of South Australia at p. 50, that when the magistrate announced his decision and signed the minute (under s. 70 of the Justices Act) he was functus officio. In R. v. Campbell; Ex parte Hoy[cdxii]¹⁴ Goddard C.J. for the Divisional Court stated that having pronounced sentence it was a magistrate’s duty to make out a warrant of commitment. In Re West[cdxiii]¹⁵ a magistrate believing after he had entered up the record that a cancellation of a licence he had made could not be supported, altered the record deleting the cancellation. Kennedy J. held “... There was no error or mistake in drawing up the conviction, that the same accurately recorded what the learned Magistrate stated. His subsequent alteration amounts to a fresh substantive adjudication. ...” It was not authorized by statute or any inherent power.

The contrasting power in a judge of a superior court to alter his sentence before the end of his sessions is traced and examined by the Full Court of South Australia in The Queen v. Nam and Sansbury[cdxiv]¹⁶.

The learned author of Hannan’s Summary Procedure of Justices in South Australia at p. 94 suggests that if justices are a court of record they should not be considered functi officio until they have signed the memorandum required by s. 70 of the South Australian Act which is in terms similar to s. 166 (1) of the District Courts Act 1963 of Papua New Guinea.

The District Court is not a court of record by statute. Halsbury (4th ed.) Vol. 10 p. 709 suggests that a court may be considered a “court of record” if it has power to fine or imprison by statute or otherwise for contempt of itself or other substantive offences but the learned authors note no case which asserts that courts of summary jurisdiction are such.

The District Courts Act 1963 of Papua New Guinea provides by s. 284 that District Courts are vested with power to deal with certain contempts of court, but the effects of s. 167 (1) and (2) thereof appear to be that the Court’s proceedings to conviction or order do not have formally to be enrolled. But despite such historical niceties, and even if it were a court of record, it is clear that the District Court being a creature of its statute has those powers only which are statutorily vested in it (Robin-Kumaina v. Reade)[cdxv]¹⁷ and see Gregory v. Murphy[cdxvi]¹⁸. No power appears in the Papua New Guinea Act which would make the situation different from that found to exist in the courts of summary jurisdiction concerned in the cases which have been discussed above. The court papers and the affidavits filed, reveal quite definitely that on the morning of the 17th March, 1976, the learned magistrate intended to and did, both sentence and convict Toripi on and for the “goods in custody” charge. He entered up and signed his adjudication of conviction and sentence. In this Court’s opinion his powers of adjudication in that matter were then exhausted. In the ancient Latin phrase he was functus officio. His subsequent purported re-commencement of the hearing, reception of evidence and alteration of sentence were done without jurisdiction.

The order nisi will be made absolute. There will be no order as to costs.

The sentence and order of the District Court of the National Capital District made at Port Moresby on 17th March, 1976 whereby Leilolo Toripi on a charge of being in possession of a wrist watch valued at K45.00 which was reasonably suspected of being stolen was sentenced to 2½ months’ imprisonment with hard labour which sentence was suspended upon a bond to be of good behaviour being entered into be removed into this Honourable Court and quashed and there be substituted therefore confirmation of the conviction and a sentence of 2½ months’ imprisonment with hard labour.

Solicitor for the applicant: L. W. Roberts-Smith, Public Prosecutor

ence>[cccxcix](1911) 48 Sc. L.R. 314.

[cd](1877) 46 L.J.M.C. 270.

[cdi][1963] 2 Q.B. 816.

[cdii][1937] 2 K.B. 96.

[cdiii][1937] 1 K.B. 223.

[1937] 2 K.B. 96.

[cdv][1953] 1 All E.R. 684.

[cdvi][1963] 2 Q.B. 816.

[cdvii][1953] 1 All E.R. 684.

[cdviii][1965] Q.W.N. 14.

[cdix][1906] V.L.R. 71.

[cdx][1948] S.A.S.R. 201.

[cdxi][1966] S.A.S.R. 47.

[cdxii][1953] 1 All E.R. 684.

[cdxiii][1934] N.Z.L.R. 893.

[cdxiv][1968] S.A.S.R. 107.

[cdxv]Unreported Judgment No. 433 of 7th July 1967 (Mann, C.J.).

[cdxvi][1905] VicLawRp 88; [1906] V.L.R. 71.