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Paynter v Lewis

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Paynter v Lewis



[(1965), 8 W.IR 

before the jury of such a “convincing, cogent, and irresistible character” as to make it A apparent that, properly directed, the jury must inevitably have come to the same conclusion. In the present instance, however, we do not sit as a Court of Criminal Appeal. In reviewing the decisions of magistrates we are a court of rehearing, 80 that we are entitled to review the evidence in the light of the magistrato’s assessment of its credibility and to arrive at a conclusion for ourselves on such corroborative evidenco as there is. Moreover, it is to be observed that the dictum upon which B such reliance was placed is restricted to cases in which there is no corroborative evidence at all and in which, therefore, it should be made to appear that the conse. quent risk of convicting has been clearly kept in mind. But where, as here, there is corroborative evidence and the magistrate or a judge sitting without a jury pro nounces that he accepts it as true, the dictum in our opinion has no application whatever. 

The corroborative evidence hero is the severity of the bite which the prosecutrix gave the appellant in the course of her resistance to his advances. He admitted that she bit him. And he sought to explain it by saying that it was a little bite deliber ately leaving a smear of lipstiok on his shirt to embarrass him with his wife. But the doctor’s evidence, which the magistrato believed, was that there was a deep abrasion on the left side of the neck which, in our opinion, was not only totally inconsistent with the playful lovemaking devoid of passion or ecstasy, to which the appellant deposed, but was wholly corroborative of a woman’s struggle to free her. self from the unwanted attentions of a man in amorous pursuit. And that is what the magistrate believed. In the circumstances, once it is accepted that the prose outrix impressed the court 88 & truthful witness, the doctor’s evidence as to the severity of the bite was corroborative in a vital respect. And it was corroboration E implicating tho appellant since admittedly it was she who inflicted the bite at the material time and place. Accordingly we think that the evidence fully justified the conviction and we therefore dismissed the appeal. 

Nevertheless, we would add that when writing their reasons for decisions which they have reached magistrates should advert expressly to the fact, so as to leave no room for doubt, that they have given themselves all proper directions according to law. In so doing, they should in a case such as this intimate whether, having warned themselves of the risk of convicting on the evidence of a prosecutrix, if uncor roborated, they have nevertheless convioted because they are completely satisfied that her evidence is true or because they accepted other evidence which was in their view corroborative of hers. In that way many an unnecessary argument should be avoided, 

Appeal dismissed. 



Phillips, JJ.A.), April 12, 1965] Magistrates-Conviction of defendant-Convictiva recalled thereafter and acquittal entered-Magistrate functus officio after convicting defendant–Acquittal of defendant set aside and conviction restored. 

At the trial of the respondent on a charge of larceny the prosecution proved that the respondent went into a store and there called for a few small articles which she was given together with a cash bill to take w the cashiero counter. Instead of pay. ing for them as she was expected to do before leaving ‘ihe atore she placed the articles 




and the cash bill in her bag and walked out into the street where she was arrested by a policeman on the information of the appellant who had her under observation. At the close of the prosecution case the respondent’s 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. The magistrato thereupon convicted the respondent but he later recalled the conviction and entered an acquittal holding finally that the offence committed was ono of obtaining credit by fraud. On appeal, 

Held: (i) the magistrato was functus officio after he had convicted the respondent and had no power to recall the conviction thereafter and enter an acquittal. R. v. Sheridan (1) applied; Ford v. Pilgrim (2) overruled; 

(ii) on the facts proved by the prosecution the magistrate was right in convicting the respondent of larceny since the clear inference was that ab initio 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; 

(iii) a conviction for larceny must be entered against the respondent and the case remitted to the magistrate to pass such sentence upon her as may be just. D Appeal allowed. Cases referred to: 

(1) R. v. Sheridan, [1936] 2 All E.R. 883; (1937] 1 K.B. 223; 108 L.J.K.B. 6; 155 

L.T. 207; 100 J.P. 319; 52 T.L.R. 626; 80 Sol. Jo. 535. 34 L.G.R.. 447; 26 

Cr. App. Rep. 1; 30 Cox, C.C. 447, C.C.A.; 33 Digest (Ref:.) 187, 355. (2) Ford v. Pilgrim (1913), 2 T’dad L.R. 254. (3) R. v. Grant, [1936] 2 All E.R. 1156; 106 L.J.K.B. 9; 155 L.T. 209; 100 J.P. 324; 

52 T.L.R. 676; 80 Sol. Jo. 572; 34 L.G.R. 452; 30 Cox, C.C. 453; 26 Cr. App. 8, 

C.C.A.; 14 Digest (Repl.) 381, 3725. (4) R. v. Manchester Justices, Ex p. Lever, [1937] 3 All E.R. 4; [1937) 2 K.B. 96; 

108 L.J.K.B. 519; 157 L.T. 68; 101 J.P. 407; 53 T.L.R. 687; 81 Sol. Jo. 571; 

35 L.G.R. 281; 30 Cox, C.C. 603, D.C.; 14 Digest (Repl.) 378, 3707. F (5) R. v. Campbell, Ex p. Hoy, [1953] 1 All E.R. 684; (1953) 1 Q.B. 585; 117 J.P. 

189; 97 Sol. Jo. 191, D.C.; 33 Digest (Repl.) 245, 762. (6) Warne r. Martin, (1954) Crim. L.R. 936; 105 L.J. 235, D.C. (7) R.v. Devon Justices, Ex p. West Somerset Co-op. Soc., Ltd. (1958), 122 J.P.Jo.525. (8) R. v. Birkenhead Justices, Ex p. Fisher, [1962] 3 All E.R. 837;(1962) 1 W.L.R

1410; 127 J.P. 15; 106 Sol. Jo. 856, D.C.; 33 Digest (Repl.) 227, 615. G (9) R. v. Essex Justices, Ex p. Final, [1962] 3 All E.R. 924; [1982] 2 W.L.R. 38

127 J.P. 39; 106 Sol. Jo. 1069, D.C.; 33 Digest (Repl.) 244, 745. (10) R. v. Marsham, Ex p. Pethick Lawrence, (1912] 2 K.B. 362; 81 L.J.K.B. 957

107 L.T. 89; 76 J.P. 284; 28 T.L.R. 391; 23 Cox, C.C. 77, D.C.; 14 Digest 

(Repl.) 392, 3817. (11) R. v. McNally, [1954] 2 All E.R. 372; 118 J.P. 399; 98 Sol. Jo. 440; 38 Cr. App. 

Rep. 90, C.C.A.; 14 Digest (Repl.) 286, 2622. (12) R. v. Riley, (1963] 3 All E.R. 949; 3rd Digest Supp. (13) R. v. Guest, Ex p. Anthony, (1964] 3 All E.R. 385; (1964) 1 W.L.R. 1273; 128 

J.P. 585; 108 Sol. Jo. 693, D.C.; 3rd Digest Supp. (14) R. v. Blaby, [1894) 2 Q.B, 170; 63 L.J.M.C. 133; 70 L.T. 879; 58 J.P. 576; 42 

W.R. 511; 10 T.L.R. 431; 38 Sol. Jo. 420; 18 Cox, C.C. 5; 10 R. 277, C.C.R.; 

14 Digest (Repl.) 575, 5746. (15) R. v. Campbell (1827), I Mood. C.C. 179, C.C.R.; 15 Digest (Repl.) 1039, 

10,208. Appeal by Arthur Paynter, District Constable, against the decision of a magistrate acquitting the respondent Esther Lewis on a charge of larceny preferred against her by the appellant. The facts are stated in the judgment of the wurt. 

  1. M. Hassanali, Senior Crown Counsel, for the appellant. Respondent in person. 

FB C @ @ @ 3 



[(1965), 8 W.I.R. 

Cur. adv. vult. A WOODING, C.J.: 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 sub mitted 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 B 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. 

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 rofer to the point which we ourselves raised, whether the magistrate had any power to recall the conviction. In Ford v. Pilgrim (2) the full C 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 how. over is not the law. Once a magistrate has accepted a plea of guilty or has adjudi. cated 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: Bee R. v. Sheridan (1); R. v. D Grant (3); R. v. Manchester Justices (4); and R. v. Campbell, Ex parte Hoy (5). It appears that a contrary view was acted upon in Warne v. Martin (6) and R. v. Devon Justices, Ex parte West Somerset Co-operative Society, Ltd. (7), but in R. v. Birkenhead Justices, Ex parte Fisher (8), PARKER, 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 (9), he had to deal with the question E again and said ([1982] 3 All E.R. at pp. 925, 926): 

“It is abundantly clear from R. v. Manchester Justices, Ex p. Lever (4), that there is a complete and effeotive conviction although that conviction has not been entered in the register. It is sufficient to quoto & passage from the judgment of HUMPHREYS, J., in that case, where he said ([1937] 3 All E.R. at p. 7)

‘I find it difficult to treat seriously the argument that a statement by magis trates 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 

the court is required to keep.’ He went on to say: ‘I also think that the matter is concluded by authority’, the authority being R. v. Sheridan (1). It is quite clear that that has always been the law and it has been reiterated again and again by this court. Counsel for the respondent, howover, while admitting that general principle, nevertheless says that it does not follow that the justices are functus officio at the moment when they bavo announced the conviction, and that if, before they have passed from that y 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 & conviction. There is, I think, clearly no statutory power to enable them to do so, nor do I for my part think that there is any inherent power. They are, in my judgmont, functus officio the moment they have announced their decision, however inconvenient the result i may be.” 

GORMON and SALMON, JJ., the other two members who comprised the court, agreed—subjeot however to tho observation by SALMON, J., that 

“The only apparent exception to that rule is in the sort of case which is exempli. fied by R. v. Marsham, Ex p. Pethick Lawrence (10). In that case, after the magistrate had convicted, it was discovered that one of the witnesses called had not been sworn. When the magistrate’s attention was drawn to the ciroumstance to 





which I have referred, he said, in effect, that there had been a mistrial, and he heard the case all over again.” 

The question has been mooted whether in the case of a conviction the magistrato may alter his decision if he has not yet passed any sentence. Support that, in hi

discretion, he may would appear to come from R. v. McNally (11). That viow was B however rejected by CHAPMAN, J., in the Crown Court at Liverpool in R. v. Riley (12) 

which was expressly approved by the Divisional Court in R. v. Guest (13). It had moreover been authoritatively rejected a long time before in R. v. Blaby (14) and in R. V. Sheridan (1) and R. v. Grant (3). It is also to be observed that the two cases last mentioned make it plain that the result is the same whether the conviction is on 

a finding by the court or upon a plea of guilty by a defendant. Accordingly, we hold c that it is immaterial whether conviction has resulted from a plea of guilty or from an 

adjudication after trial, or whether a conviction or acquittal has been formally entered or not, or whether & conviction has or has not been followed by the imposi. tion of a sentence or the making of an order: once there has been a conviction or acquittal, to borrow the language of Judge CHAPMAN, J. ([1963] 3 All E.R. at p. 951), 

“the guillotine falls and the court which has made that adjudication is functus officioD so far as concerns such guilt or innocence. A second duty will then arise, either to 

discharge the defendant or to assess the appropriate sentence or order which should follow on conviotion. But the first duty, that of finding guilt or otherwise, has by then been performed fully and beyond recall. Accordingly, we overrule the decision in Ford v. Pilgrim (1)

We turn then to the facts. They may be briefly stated as follows. On the morning E of November 9, 1963, the respondent went to Hodgkinson’s store and there called for 

a few small articles which she was given together with a cash bill to take to the cashier’s counter where she was expectod to pay for them befüre leaving the store. But, mixing among & crowd of persons, she put both the articles and the bill in her bag and walked out into the street where she was arrested by Sgt. Roberts on the information of the appellant who had had her under observation. In our view, the clear inference is that ab initio when she took the goods for which she had called she did so fraudulently, without intending to pay for them, and with intent to doprive their owner permanently of them. The taking was therefore felonious and the offence committed was accordingly larceny: seo R. v. Campbell (15). 

We think, then, that the magistrato was right when at first he convicted the respondent and that his powers were thereupon spent 88 regards any verdiot he might decide to pronounce; also, that he was wrong in holding finally that the offence committed was one of obtaining credit by fraud. The fact is that she neither sought nor obtained any credit. She stole the goods by what she had thought was a neat little trick. 

The appeal is accordingly allowed and a conviction must b? entered against the respondent. And we order that the matter be remitted for the magistrate to pasa H such sentence upon her as the justice of the case requires. 

Appeal allowed. 

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