Beswick v R 

318 

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(1987) 36 WIR 

Beswick v R 

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL LORD KEITH OF KINKEL, LORD BRANDON OF OAKBROOK, LORD GRIFFITHS, b LORD MACKAY OF CLASHFERN and SIR DUNCAN MCMULLIN 23rd JUNE, 20th JULY 1987 

Magistrate – Functus officio – Conviction of defendant and sentence – Subsequent order vacating conviction and sentence – Whether jurisdiction to make subsequent order 

on change his plea and pleadecavuus 

The appellant was charged with a minor offence at the traffic court. The hearing was adjourned and was resumed before a different magistrate. At the resumed hearing the appellant was properly allowed to change his plea and pleaded “Guilty”. He was duly sentenced by the second magistrate. Subsequently, however, the second magistrate ordered the summons to be re-issued and his original order to be vacated. The summons was heard before the original magistrate, who rejected the appellant’s plea of autrefois acquit, convicted him and imposed a more severe penalty than that imposed at the earlier hearing. The appellant appealed to the Court of Appeal who upheld the appellant’s conviction on the ground that the second magistrate had had no jurisdiction to continue a case begun before the original magistrate. On further appeal, 

Held, allowing the appeal, that the second magistrate had fairly taken up the adjourned case and in the circumstances he was required to accept the appellant’s change of plea; once he had convicted and sentenced the appellant, the magistrate was functus officio and his subsequent order was made without jurisdiction and was of no effect. 

R v Ebanks (1944) 4 Jamaica LR 158 considered. 

Cases referred to in the opinion of the Board Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC 147, 

(1969) i All ER 208, 1969) 2 WLR 163, HL. Coleshill v Manchester Corporation (1928) 1 KB 776, 97 LJKB 229, 138 

LT 537, England CA. Guerin, Re (1888) 58 LJMC 42, 60 LT 538. Lewis v Lewis (1928) 92 JP 88, 26 LGR 323. R v Ebanks (1944) 4 Jamaica LR 158. Samuels v Smithson (1939) 3 Jamaica LR ISI

Appeal Paul Beswick appealed to the Judicial Committee of the Privy Council 

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(appeal 31 of 1986) against the dismissal by the Court of Appeal of a Jamaica on 14th February 1986 of his appeal against his conviction and 

sentence at the traffic court (Her Honour Miss Francis) on 6th March 1985 for disobeying a traffic light. The facts are set out in the opinion of the Board delivered by Lord Griffiths. 

Bertram Macauley QC, Mrs M. Macauley and T. Ballantine (instructed 

by Simons, Muirhead & Burton) for the appellant. James Guthrie (instructed by Charles Russell & Co) for the respondent. 

Their Lordships took time for consideration. 

Lord Griffiths delivered the opinion of the Board. This is an appeal from a judgment of the Court of Appeal of Jamaica given on 14th February 1986 dismissing the appeal of the appellant from his conviction by the judge of the traffic court, Her Honour Miss Eve Francis, on 6th March 1985 for the offence of disobeying a traffic light in breach of section 97 of the Road Traffic Act, for which the appellant was sentenced to a fine of $40 or seven days’ imprisonment. 

The circumstances giving rise to this appeal are as follows. On 3rd e October 1984, the appellant appeared before Her Honour Miss 

Francis, sitting as the judge of the traffic court. He pleaded “Not Guilty” and his trial commenced. After one prosecution witness had given his evidence the trial was adjourned at the request of the defence 

to 26th October. Miss Francis then went on leave and on 26th October f the appellant appeared before His Honour Mr Lopez, who was 

presiding that day in the traffic court. The appellant asked leave to change his plea to “Guilty”. Mr Lopez, after consulting with the clerk prosecuting the case, accepted his plea of “Guilty” and imposed a fine 

of $20 or seven days’ imprisonment. The appellant paid the fine g immediately. 

Mr Lopez then appears to have changed his mind about the propriety of accepting the plea. For on 26th October 1984 he ordered the summons to be re-issued and, on 2nd November, he made a further order which reads “Order made on 26th October 1984 vacated. Fine to be remitted in toto”. 

Eventually there was a further hearing before Miss Francis on 6th March 1985. Counsel on behalf of the appellant entered a plea of autrefois convict based upon the conviction and sentence passed by Mr Lopez on 26th October, and further submitted that having passed sentence Mr Lopez was functus officio and his order made on and November varying the order of 26th October and remitting the fine was therefore made without jurisdiction and had no effect. 

Miss Francis rejected the plea of autrefois convict upon the ground that whatever took place before Mr Lopez on 26th October 1984 was a nullity. The appellant stood upon his plea of autrefois convict and took no further part in the trial. Miss Francis heard further evidence, 

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(1987) 36 WIR 

convicted the appellant and sentenced him to a fine of $40 or to seven days’ imprisonment. 

a The Court of Appeal upheld the conviction by Miss Francis on the ground that Mr Lopez had no jurisdiction to continue a case already begun before another magistrate. In the course of his judgment, Rowe 

P said: 

“We are of the view that a resident magistrate who commences a trial within his jurisdiction has exclusive jurisdiction over that case and that if another resident magistrate purports to intermeddle in such a trial, for whatever reason, such intermeddling is a nullity. We are of the view that Her Honour Miss Francis could validly examine what His Honour Mr Lopez had done in the case which had been commenced before her and could determine whether there was an effective legal conviction by His Honour Mr Lopez. We hold that His Honour Mr Lopez did not have jurisdiction to continue the part-heard case against the appcllant and consequently the doctrine of functus officio did not apply … His Honour Mr Lopez, although assigned to be the judge of the traffic court had no jurisdiction to continue a case already begun before another magistrate and in what he purported to do, the appellant was never in peril.” 

The expression the magistrate has “no jurisdiction” is a phrase used e by the courts to cover a very wide variety of circumstances in which it is improper for a particular magistrate to adjudicate in a particular case. It is therefore necessary to consider in what sense it was used by the Court of Appeal in this case. In its narrow sense the phrase covers the situation in which a magistrate has no power to enter upon a f hearing; he may lack territorial jurisdiction or the offence may be one which he has no power to deal with and must be tried by a higher court. In Anisminic Ltd v Foreign Compensation Commission (1969] 2 AC 147 at page 171, Lord Reid expressed the view that it would be better to confine the use of the expression “no jurisdiction” to this narrow g meaning. 

It is, however, clear that the Court of Appeal cannot have used the expression in this narrow meaning in the present case. Mr Lopez undoubtedly had jurisdiction within the narrow meaning of the expression when the case was called on before him on 26th October. h He was sitting in the traffic court in place of Miss Francis by virtue of section 8 of the Traffic Court Act and the offence with which the appellant was charged fell within his jurisdiction pursuant to section 4 of the Traffic Court Act. That he had jurisdiction to deal with the case in some ways was not disputed by the prosecution. For instance it is conceded that he had power to adjourn for a further hearing by Miss Francis. 

The expression “the magistrate had no jurisdiction” is, however, frequently used in a broader sense, to cover cases in which (although there was power to enter upon a hearing) the decision shoul

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nevertheless be quashed because it would not be fair to allow it to a stand. If, for example, the appellant had not changed his plea and Mr 

Lopez had continued the trial without hearing the evidence of the prosecution witness who had previously given his evidence before Miss Francis, his decision would have to be quashed because it is a fundamental requirement of the fair administration of justice that those charged with returning a verdict in a criminal case be they judge, magistrates or jurors should have seen and heard all the witnesses. If they have not had the opportunity to evaluate the reliability and veracity of a witness by seeing and hearing him give evidence, they lack a part of the vital material upon which their verdict should be based. It is perhaps unnecessary to cite authority for so self-evident a proposition but it is to be found in such decisions as Re Guerin (1888) 58 LJMC 42, Coleshill v Manchester Corporation (1928] 1 KB 776, Lewis v Lewis (1928) 92 JP 88 and Samuels v Smithson (1939) 3 Jamaica LR 

  1. In these cases, the courts have referred to the judge or magistrates d having no jurisdiction to continue a hearing when they have not heard 

the earlier evidence. 

It must have been in this broader sense of the term that the Court of Appeal referred to Mr Lopez having no jurisdiction to intermeddle in a case commenced by Miss Francis. Their Lordships can, however, see no considerations in either the public interest or in the interests of the defendant that make it unfair for a different magistrate to accept a change of plea from “Not Guilty” to “Guilty” on an adjourned hearing. If Miss Francis herself had been sitting on 26th October and the appellant had offered a change of plea to “Guilty” it would have been her duty to accept it and to record a conviction. Their Lordships can think of no circumstances in which she could properly have exercised a discretion to refuse the plea, save possibly if she thought that the appellant did not fully understand the meaning of what he was doing. As the appellant is a practising member of the Bar this possibility does not arise in the present case. If Miss Francis should have accepted the plea if she had been sitting, why should not Mr Lopez accept the plea in her place? Before passing sentence, he would of course have had the facts recited to him by the prosecution, including the gist of the evidence given by the witness who had been called at the earlier hearing. It seems to their Lordships that he would then have been as well informed to pass sentence in this relatively trivial case as Miss Francis would have been. If, on the other hand, he had refused to accept the plea, so far from advancing the cause of justice, it would have caused injustice. Both prosecution and defence would have been put to the extra expense of a further hearing, the matter would have hung needlessly over the head of the appellant, police officers and possibly other witnesses would have been taken unnecessarily from their normal duties to attend the adjourned hearing and other defendants would have had their cases delayed to make time for the adjourned hearing. 

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In the course of their judgment the Court of Appeal cited with approval the decision in R v Ebanks (1944) 4 Jamaica LR 158. Their Lordships are not certain how much that decision may have influenced the Court of Appeal in the present case. The facts in R v Ebanks were that a resident magistrate died after completing a hearing of a trial on indictment and before he had given judgment. A second magistrate then ordered a fresh indictment to be preferred on the same informa tion, upon which he tried and convicted the defendant. The Court of Appeal quashed the conviction on the ground that, until the order of the first magistrate had been vacated by the Attorney-General enter ing a nolle prosequi, the second magistrate had no jurisdiction to make a second order preferring a fresh indictment on the original informa- tion. This finding appears to have been based upon the construction the Court of Appeal placed upon section 275 of the Resident Magistrates Law, but the reason why this construction was adopted is far from clear. It is not necessary for the purposes of this appeal to consider whether R v Ebanks was correctly decided, but it should be said that their Lordships do not find the decision of any assistance in resolving the present appeal. 

In their Lordships’ view there was no reason why Mr Lopez should not have accepted the plea, recorded a conviction and passed sentence; in so doing he was exercising a discretion within his jurisdiction. The interests of justice are not best served by adopting a rigid rule that a resident magistrate must in all circumstances retain exclusive jurisdic tion over a case that she has begun. A magistrate who takes up the case on an adjourned hearing must consider whether he can, in fairness both to the prosecution and the defence, continue the hearing: if he can, he should do so; if he cannot then he must adjourn the case to be continued by the original magistrate. 

It follows that, as Mr Lopez had jurisdiction to accept the plea of “Guiltyon 26th October, the conviction he recorded and the sentence he passed were not a nullity. Once he had recorded the conviction and passed sentence Mr Lopez had exhausted his jurisdic tion to deal with the offence and was functus officio. His further order of 2nd November was made without jurisdiction and of no effect. The appellant was entitled to rely upon the plea of autrefois convict in respect of the conviction and sentence passed on 26th October when he appeared before Miss Francis on 6th March 1985. 

For the reasons indicated their Lordships will humbly advise Her Majesty that this appeal should be allowed and the conviction and sentence passed on 6th March 1985 quashed. The appellant is entitled to his costs of the hearing on 6th March 1985 in the traffic court, his appeal to the Court of Appeal and of this Appeal. 

į 

Appeal allowed with costs. 

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