Sydney Frederick v Chief of Police

West Indian Reports/Volume 11 /Sydney Frederick v Chief of Police – (1968) 11 WIR 330

(1968) 11 WIR 330

Sydney Frederick v Chief of Police

HIGH COURT OF JUSTICE, GRENADA (APPELLATE JURISDICTION)

A M LEWIS CJ, AND ST BERNARD J

6 MARCH 1968

Magistrate – Case part heard when his acting appointment terminated – Magistrate subsequently re-appointed to complete this case and other part – heard cases – Hearing continued from point where it had stopped – Whether magistrate had jurisdiction to complete hearing – Validity of trial.

A person having been appointed in June 1966, to act as magistrate began the hearing of the case which is the subject matter of this appeal, but was unable to complete it before his appointment was terminated. He was appointed in December 1966, as an additional magistrate to complete the hearing of this case and others which had not been completed in June 1966.

Counsel for the appellant submitted that the hearing should be commenced de novo because on the termination of the magistrate’s acting appointment in June 1966, he had become functus officio and accordingly he had no jurisdiction to continue the hearing from the stage where it had been left incomplete in June 1966. The magistrate overruled this submission and continued the hearing of the case. On his counsel’s advice the appellant took no further part in the proceedings. He was convicted and has appealed to this court.

Held: the magistrate had no authority to continue the hearing of the ease as he was functus officio when his acting appointment terminated in June 1966, and his re-appointment in December 1966, did not confer jurisdiction on him to resume the hearing of the case at the stage where it had been left incomplete in June 1966. The trial was accordingly a nullity.

Appeal allowed.  New trial ordered.

Case referred to

Jones v Ricketts (1964), 7 WIR 62

Appeal

Appeal from the judgment of a magistrate.

D Knight for the appellant

The Attorney-General for the respondent

A M LEWIS CJ. The appellant was convicted on 2 December 1966,

(1968) 11 WIR 330  at 331

of the offence of causing harm to Ernie Otway contrary to s 82 (1) of the Criminal Code, Cap 76 [Grenada] and was sentenced to four months’ imprisonment. He has appealed against his conviction.

It is unnecessary to deal with the facts of the case because the main ground of appeal is that at the time the magistrate delivered judgment he had no jurisdiction to do so and that the judgment is a nullity. The matter arises in this way, as appears from the learned magistrate’s reasons for conviction and sentence.

The hearing of the case was begun on 13 June 1966. A certain amount of evidence was taken and the case was adjourned for further hearing to June 20. It was resumed on that day and the prosecution closed their case. Evidence in chief for the defence was taken from the defendant and others. It was not completed on that day, one witness being left for cross-examination. Before it could be resumed, the appointment of the magistrate, who was only acting as magistrate, was terminated. In December, 1966, he was appointed an additional magistrate for the district for the purpose of completing that case and others which had been started by him and left incomplete in June, 1966. On 9 December 1966, he sat, and on the case being called Mr Knight, who then appeared for the appellant, objected to his continuing the case and urged that the hearing would have to be re-commenced as the magistrate in the meantime had become functus officio. The learned magistrate overruled his objection, and he gives his reasons for so doing. He says that he had not been referred to any statute, ordinance, or case in support of his contention; secondly, that no other magistrate had intermeddled in the case; thirdly, that some of the principal witnesses on both sides would not be available for a new hearing; fourthly, that the case had been nearly completed when his acting appointment had been terminated. Mr Knight then advised the defendant to take no further part in the case. The prosecution was called on by the magistrate to continue. The case was completed. The magistrate read out the whole of the evidence taken before on both occasions and convicted the appellant.

On this appeal, counsel for the appellant, Mr Knight, has restated the objection which he made before the learned magistrate. On this occasion he comes with authority. He has referred the court to the case of Jones v Ricketts ((1964), 7 WIR 62). That was a case heard by the Court of Appeal in Jamaica. In that country, where a resident magistrate’s appointment is determined before he delivers judgment in a case, the Resident Magistrate’s Law authorises him to deliver the reserved judgment within two months and prescribes that a judgment so delivered is to take effect in all respects in the same way that it would have taken effect if the magistrate who reserved judgment had continued to be the magistrate of the court and had delivered the judgment himself on the day that it was so read as aforesaid.

It is significant that that statute refers merely to a case in which hearing of the whole case has been completed and the judgment alone is reserved, and then it is obviously convenient that the magistrate should have authority to go back into court and deliver the judgment. Similar provision has in modern days been made under the statutes of various territories including, I believe, the Courts Order for these Associated States, under which a judge who becomes functus officio because his appointment is terminated before he completes the hearing of a case may return for the purpose of delivering judgment. The Magistrate’s Court, as has often been stated, is a creature of statute. A person who is appointed as magistrate has the powers which are conferred on him by the statute so long as he remains the magistrate. When his appointment is terminated, he becomes, as it is said, functus officio. He is divested of the authority which he had as magistrate. In the Jamaica case, as in this case, the acting resident magistrate who heard the case had been re-appointed several months after hearing and he went to deliver the judgment, overruling the

(1968) 11 WIR 330  at 332

objection then taken before him, but he had no authority so to do. The Court of Appeal held that the judgment was invalid, the magistrate having become functus officio. The President of the court said ((1964), 7 WIR 62 at p 64):

`The obvious intention of the Legislature when it enacted s 192 of the Resident Magistrate’s Law was that reserved judgments should be delivered within a limited time-fixed at two months, and I accept the argument put forward that where the resident magistrate has ceased to be resident magistrate for a particular parish that his jurisdiction in that parish to hear a particular case and to determine that case terminates and cannot be revived by his subsequent re-appointment …’

Those words apply exactly to the facts in this case. The learned magistrate here was obviously of the opinion that having been reappointed he was in the same position as though he had continued without any interval to be magistrate of the District. This was the very argument that was advanced by the respondent in Jones v Ricketts ((1964), 7 WIR 62) and which the court there held to be invalid. I was a member of that court and it is of some interest that Mr Justice henriques, who was formerly Chief Justice of the Supreme Court of the Windward Islands and Leeward Islands was also a member of the court which decided Jones v Ricketts ((1964), 7 WIR 62).

In some territories, for example in the State with which I am particularly familiar-St Lucia, there is express provision in the District Courts Ordinance which authorises the continuation of a proceeding which has been begun by one magistrate, by another magistrate where the first magistrate has ceased to act as a magistrate. The court has enquired from the learned Attorney-General and Mr Knight whether there is any similar provision in this State, and has been informed there is none.

The learned Attorney-General has said that he concedes the validity of the ground of appeal and the arguments put forward by Mr Knight. In my opinion the learned magistrate had no authority to continue the hearing of the case. He ought to have begun it again, leaving to the prosecution the decision as to whether they wished to continue it having regard to the unavailability of the witness. The unavailability of witnesses could not give him the jurisdiction which he did not have. In my opinion, this appeal should be allowed and the conviction and sentence set aside. The result is that the previous trial in my opinion was a nullity and the case would have to go back for a new trial.

St bernard J. I wish to say that I agree with the judgment just delivered by the learned president. In my view, when the magistrate vacated his office on 30 June 1966, he became functus officio and an appointment by the Governor to enable him to continue the case which he had already heard had no effect. I would allow the appeal on the ground that the magistrate had no jurisdiction to continue the hearing on 2 December 1966, and the matter must be remitted to the magistrate for a new hearing.

Appeal allowed. New trial ordered.