Paynter v Lewis

• Jurisdiction: Trinidad & Tobago
• Judge: Wooding, C.J.,McShine,Phillips, JJ.A.
• Judgment Date: 12 April 1965
• Neutral Citation: TT 1965 CA 48
• Docket Number: Mag. App. No. 56 of 1965
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 12 April 1965

Court of Appeal

Wooding, C.J., McShine and Phillips, JJ.A.

Mag. App. No. 56 of 1965

Paynter

and

Lewis

Appearances

N.M. Hassanali for the appellant.

The respondent appeared in person.

Practice and Procedure - Courts — Magistrate Court — Conviction recalled and acquittal entered by magistrate — Whether magistrate had power to recall conviction

Facts: Respondent was charged with larceny at trial, magistrate convicted the respondent but later recalled the conviction and entered an acquittal holding that the offence committed was one of obtaining credit by fraud. Appellant appealed.

Held: The magistrate was functus officio after he had convicted the respondent and had no power to recall the conviction thereafter and enter an acquittal. On the facts proved by the prosecution the magistrate was right in convicting the respondent of larceny since the clear inference was that when she took the goods for which she had called she did so fraudulently without intending to pay for them and with intent to deprive their owner permanently of them. Conviction of larceny must be entered against respondent. Case remitted to the magistrate to pass such sentence as may be just. Appeal allowed.

Judgment:

1 The respondent was charged with the larceny on November 9, 1963 of certain small articles of clothing of the aggregate value of $6.42, the property of A.A. Hodgkinson Ltd. At the close of the prosecution case her counsel submitted that the facts disclosed a case of obtaining goods by fraud but did not support a charge of larceny. He rested his case on that submission and elected to call no evidence. In the result, the magistrate at first convicted the respondent, but he later recalled the conviction and entered an acquittal. So the appellant appealed.

2 Although we are a court of rehearing and it is therefore both our right and duty to consider in any event the validity of the respondent's submission, we think we ought in the first instance to refer to the point, which we ourselves raised, whether the magistrate had any power to recall the conviction. In Ford v Pilgrim, (1913) 2 T'dad L.R. 254 the Full Court held that until a conviction is formally drawn up or entered, there is a ‘ locus penitentiae’ for a magistrate to alter his judgment or call fresh evidence. That however is not the law. Once a magistrate has accepted a plea of guilty or has adjudicated and found a defendant guilty or not guilty, he is ‘ functus officio’ as regards the commission or non- commission of the offence and accordingly he has no power to alter the conviction or acquittal as the case may be: see R v Sheridan, [1937] 1 K.B. 223; R v Grant, [1936] 2 ALL E.R. 1156; R v Manchester Justices, [1937] 2 K.B. 96; and R v Campbell, ex parte Hoy, [1953] K.B. 585. It appears that a contrary view was acted upon in Warne v Martin, (1954) Cr. L.R. 936 and R v Devon Justices, ex parte West Somerset Cooperative Society Ltd, (1958) 122 J.P. Jo.525, but in R v Birkenhead Justices, ex parte Fisher, [1962] 3 ALL E.R. 837, Parker L.C.J. said of the decisions in those cases that “the judgments must be treated as having been given ‘per incuriam’”. Later in the same year, in R v Essex Justices, ex parte Final, [1962] 3 ALL E.R. 924, he had to deal with the question again and said:

“It is abundantly clear from R v Manchester JJ., ex p. Lever 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, where he said:

‘I find it difficult to treat seriously the argument that a statement by magistrates who are a court of competent jurisdiction that a person who has been tried before them is guilty, followed by a statement that he is to pay certain penalties does not form a conviction, and that there is no conviction unless and until some clerk has made a record of that finding and sentence in a book which...