The State v The Senior Stipendiary Magistrate of the NCD Court at Port Moresby; Ex Parte The Acting Public Prosecutor

• Jurisdiction: Papua New Guinea
• Judge: Prentice DCJ, Williams J, Saldanha J
• Judgment Date: 27 August 1976
• Citation: [1976] PNGLR 344
• Court: Supreme Court
• Year: 1976
• Judgement Number: SC103

Supreme Court: Prentice DCJ, Williams J, Saldanha J

Judgment Delivered: 27 August 1976

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 [1906] V.L.R. 71; Gray v. Jones [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...