Stephen Albert Louis Muscat v Magistrates' Court of South Australia and South Australian Police No. SCGRG 95/2298 Judgment No. 5551 Number of Pages 15 Procedure Judgments and Orders Amending, Varying and..

[1996] SASC 5551

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA LANDER J

CWDS
Procedure - judgments and orders - amending, varying and setting aside - Magistrate published reasons containing suspended sentence - discovered had sentenced without taking into account the fact that this conviction involved a modus operandi similar to that involved in the defendant's previous convictions - Magistrate withdrew reasons - action for judicial review - whether Magistrate was functus officio. Criminal Law (Sentencing) Act 1988 (5A) s9; Magistrates Court Act 1991(SA); Summary Procedure Act 1921(SA) ss70, 76a, 76b; Justices Act 1921(SA), referred to. R v Roberts-Smith; Ex Parte Kowald (1977) 16 SASR 147; Gray v Jones (1948) SASR 201; R v Sheridan (1936) 2 All ER 883; R v Manchester Justices; Ex Parte Leaver (1937) 2 KB 96, not followed. Holtby v Hodgson (1889) 24 QB 103; R v O'Loughlin; Ex Parte Ralphs
(1971) 1 SASR 219; R v Smith; Ex Parte James (1966) SASR 47; Daire v Louss
(1984) 35 SASR 508; R v Judge Crowe; Ex Parte Rees (1985) 39 SASR 398; S (An Infant) v Recorder of Manchester (1971) AC 481; McNicholl v Tothill (1988) 47 SASR 134; Tarasenko v Boylan (1972) 58 SASR 587, discussed. Craig v State of South Australia (1995)131 ALR 595, considered.

HRNG ADELAIDE, 20 February, 1 March 1996 #DATE 9:4:1996 #ADD 21:5:1996

Counsel for plaintiff:     Mr C Kourakis

Solicitors for plaintiff:    Caldicott and Co

Counsel for defendant:     Mr M Hinton

Solicitors for defendant:    DPP (SA)

ORDER
Application dismissed,

JUDGE1 LANDER J The plaintiff brings an application for judicial review pursuant to Rule 98 of the Supreme Court Rules, in relation to proceedings in the Adelaide Magistrates' Court on 1 September 1995. The application is one seeking an order for certiorari upon the basis that the Magistrates' Court exceeded its jurisdiction in making the order that it did (Craig v State of South Australia
(1995) 131 ALR 595).

2. The plaintiff was charged, on information dated 1 April 1995, with four counts of false pretences contrary to s195 of the Criminal Law ConsolidationAct 1935 (SA). He was subsequently charged, again upon information, with two further counts of false pretences.

3. He pleaded guilty to all six counts which were dealt with together in the Adelaide Magistrates' Court, before Mr Gumpl SM, on 30 August 1995. On that day, submissions in relation to penalty were made by Mr D'Angelo for the plaintiff, and by Sergeant Harper, the Police prosecutor.

4. The prosecutor informed the Court of previous convictions imposed upon the plaintiff, and in particular, that the plaintiff had received a penalty of six months' imprisonment in the District Court on 26 May 1992 in relation to thirteen counts of false pretences and twelve counts of fraudulent conversation. The prosecutor tendered, with the consent of the plaintiff's counsel, a victim impact statement.

5. Mr D'Angelo, who then appeared for the plaintiff, admitted in his submissions to the Court that the plaintiff had been convicted of similar offending in the past. Mr D'Angelo said in an affidavit tendered and relied upon by the plaintiff in these proceedings: "By that submission, I intended to convey that not only did the defendant have prior convictions for false pretences, but that they involved a similar modus operandi."

6. Mr D'Angelo, apart from making the admission to which I have referred, tendered, with the consent of the Police prosecutor, reports from Mr Allen Fugler, Psychologist, a report from Gamblers Anonymous, a report from Mr Ian Law, a counsellor at the Adelaide Central Mission Counselling Services, and a character reference given by a Mrs Joy Turvey.

7. The report of Mr Fugler, which was dated 4 August 1996 stated this:
    "Your client has prior convictions for false pretences,
    fraudulent conversion and fail to return electoral form. He
    was imprisoned for six months in relation to the first two
    offences in 1992."

8. Mr Fugler also said:
    "Your client made full admissions with respect to his
    offending behaviour. Essentially, his motivation was to
    acquire money to support his gambling addiction.

Mr Muscat met a woman in 1991, after he had been charged
    with a criminal offence. Part of his bail conditions were
    to report to Police on a daily basis. Embarrassed about
    having to inform his recently met romantic partner, he told
    the woman he was a legal practitioner in order to account
    for his behaviour. As the couple's circle of acquaintances
    increased, Mr Muscat found himself having to stick with the
    fabrication he had created. Your client began to understand
    those he met trusted him and decided he could obtain
    finances by continuing to misrepresent himself. He told me,
    `One part of me was rotten and the other believing my
    behaviour was insane'."

9. Mr D'Angelo also called the plaintiff's defacto wife, Iva Burke, who gave oral evidence in support of the submissions made by Mr D'Angelo.

10. At the conclusion of the parties' submissions, Mr Gumpl SM reserved the question of sentence, remanding the plaintiff on bail until the next day, 1 September 1995, at 2:15 pm. On that day the plaintiff and Mr D'Angelo attended and Mr Roger Laganin, a Police Officer, attended as prosecutor.

11. Mr Laganin has sworn an affidavit dated 15 November 1995, which was tendered by the defendants in support of their case. He said that on 1 September 1995 his responsibility was merely to accept the sentence of the Court on behalf of the prosecution.

12. He received the prosecution file from Sergeant Harper at approximately 12:00 noon. He read Mr Fugler's report which had been tendered and decided to check the plaintiff's modus operandi in relation to prior convictions for offences of fraudulent conversation and false pretences. He received facsimile copies of the apprehension reports relevant to the plaintiff's previous conduct and offences, which reports he read on his way from the prosecution unit offices to the Adelaide Magistrates' Court. He noticed that those reports disclosed a modus operandi identical to the one involved in the charges currently before the Court.

13. He reached the conclusion that the fact that the modus operandi was common to the earlier convictions and the offences for which sentence was about to be given, invalidated the premises upon which Mr Fugler had prepared his report.

14. Mr Gumpl SM entered the courtroom and immediately upon taking his seat stated that he had prepared brief written remarks as to penalty. He handed those remarks to his clerk and the sentencing remarks were handed to Mr D'Angelo and Prosecutor Laganin.

15. There is a dispute as to exactly what Mr Gumpl SM said at that time. Mr D'Angelo stated in his affidavit: "Mr Gumpl SM indicated that he had prepared written reasons for his sentence and indicated words to the effect that he now published those reasons and handed copies of the reasons from the bench to the bar table."

16. Mr Laganin said in his affidavit: "I recall his Honour entering the Court and immediately upon being seated, stating that he had prepared brief written remarks as to penalty."

17. Mr Laganin went on to say: "At no time on 1 September, 1995 did Mr Gumpl SM state that he was publishing his remarks as to penalty and imposing penalty."

18. I am not able to determine from the affidavits exactly what was said, but it is clear, as Mr Hinton, who appeared for the defendants, properly conceded, that Mr Gumpl SM did publish his reasons in as much as the reasons were handed to both the prosecutor and the plaintiff's counsel. Mr Hinton also properly accepted that it was not necessary to resolve whether the Magistrate said at the time that those reasons were published, and that, regardless of exactly what was said, he was in fact publishing his reasons.

19. I shall proceed on the basis, therefore, that the handing out of the reasons by the Magistrate to the prosecutor and to counsel for the plaintiff, amounted to a publication of his reasons.

20. Mr D'Angelo said that he read the first page of the reasons and without reading the document in full, turned to the last page where he read that Mr Gumpl SM had given the plaintiff a suspended sentence.

21. When this matter first came before me, neither party sought to tender the reasons of the learned magistrate. I pointed out that in the absence of the reasons it would be difficult to find what the magistrate had written and whether it amounted to a sentence or indeed a pronouncement. The matter was adjourned to enable the parties to make inquiries. During the period of the adjournment the reasons were supplied to me by the defendants and the parties agreed that I may have regard to those reasons.

22. Mr Gumpl SM's reasons concluded with the following passage:
    "I shall impose one penalty on a global basis. On the
    Information dated 1 April 1995, the defendant shall be
    convicted and imprisoned for three and a half years; I fix a
    non-parole period of two years. That sentence will be
    suspended upon the defendant entering into a bond for a term
    of three years, in the amount of $10. There will be court
    fees of $86, two levies each of $40, and an appearance fee
    of $15.

23. On the Information dated 15 June 1995, there will be court fees of $86, four levies each of $40, and an appearance fee of $15."

24. Mr Laganin did not read the reasons because during the time the reasons were being published he was making further submissions to the Magistrate in respect of the plaintiff's modus operandi in relation to the earlier offences. At that time he advised the Magistrate of the facts surrounding the plaintiff's previous convictions. Following those submissions by Mr Laganin, and without hearing Mr D'Angelo, his Honour requested the return of his sentencing remarks.

25. The parties immediately complied with his Honour's request and the sentencing remarks were returned to his Honour.

26. Mr D'Angelo sought further instructions in relation to Mr Laganin's submissions and then sought an adjournment of the matter. The matter was adjourned to 15 September 1995.

27. On that occasion Mr Kourakis appeared on behalf of the plaintiff and submitted that the sentence had been pronounced on 1 September 1995 by virtue of Mr Gumpl SM having handed out his written reasons and that by that pronouncement, Mr Gumpl SM was thereby rendered functus officio. The learned Magistrate did not accede to that submission and indicated that he believed he was entitled to recall the written reasons which had been circulated. He said that in his opinion he was entitled to sentence the plaintiff afresh. The matter was adjourned to 22 September 1995 when, upon the application of the plaintiff, Mr Gumpl SM disqualified himself from the further hearing of the matter. At the same time he remanded the plaintiff until 27 October 1995, upon his bail, for re-hearing before another Magistrate.

28. On 26 October 1995 the plaintiff commenced these proceedings seeking the following orders:-
    "1. A declaration that the learned Special Magistrate, Gary
    Clive Gumpl, had pronounced sentence on 1 September 1995 and
    that accordingly he and the Magistrates' Court in general
    had become functus officio.

2. An order in the nature of prohibition, restraining the
    Magistrates' Court from further hearing the matter.

3. An order in the nature of mandamus, that the Magistrates'
    Court do all things necessary to give effect to the sentence
    pronounced.

4. In the alternative, an order that, if the matter is to
    proceed for re-hearing in the Magistrates' Court before
    another Magistrate, any submission should not go further
    than the ambit of submissions made before Mr Gumpl SM."

29. At the hearing before me the first three of those orders were sought, and the fourth abandoned.

30. A court must, upon sentencing a defendant who is present in court, state its reasons for imposing the sentence and cause an explanation of the legal effect and obligations of the sentence, and where appropriate, of the consequences of non-compliance with it, to be given in simple language to the defendant (s9 Criminal Law (Sentencing) Act 1988 (SA)). The Magistrate was, therefore, under an obligation to state his reasons for imposing whatever sentence was imposed.

31. The publication of the reasons for sentence to the prosecutor and Mr D'Angelo was in compliance with the Magistrate's obligation. Those reasons contain the sentence that the Magistrate intended to impose upon the plaintiff and the publication of the reasons to his counsel was, in my opinion, publication to the plaintiff of the intended sentence.

32. The plaintiff argued that the publication of Mr Gumpl SM's reasons amounted to a pronouncement in the written form of the sentence and thereby rendered the Magistrate functus officio so as to disentitle him from withdrawing the reasons for sentence and thereby the sentence and hence also disentitling him from reconsidering the sentence in light of what was said to be the new material.

33. However, in my opinion, it cannot always be said that publication of written reasons, including reasons for any sentence to be imposed and the sentence itself, amount to a pronouncement of the sentence. At the very least, in my opinion, a publication of reasons, such as those published by Mr Gumpl SM, which are not expressed with any finality, but rather state, for example, that the judicial officer will suspend a sentence upon the defendant entering into a bond, cannot constitute a pronouncement of that sentence. Rather, in my opinion, in a case such as this, pronouncement of the sentence occurs upon the defendant entering into the prescribed bond. It is only at that stage that the intimation of sentence crystallizes into a pronouncement of sentence.

34. For this reason I find that even if pronouncement of sentence renders a Magistrate functus officio, there was no such pronouncement in this case and hence Mr Gumpl SM was entitled to withdraw his reasons for sentence and the sentence itself so as to reconsider the sentence.

35. However, if that conclusion is wrong, and the publication of the reasons amounted to a pronouncement of the sentence, I do not believe that such a pronouncement was of itself sufficient to render the learned Magistrate functus officio.

36. In Holtby v Hodgson (1889) 24 QB 103, in an action for malicious prosecution against a married woman, judgment was obtained by default and the Judge at trial directed the judgment to be entered, but judgment was not actually entered or signed until a time later.

37. Lord Esher said (at 107): "Pronouncing judgment is not entering judgment; something has to be done which will be a record, and so the judgment that the judge has pronounced is the judgment which is to be entered."

38. I recognize immediately that that case was a civil case heard in a superior court which was itself a court of record, but, for the reasons which I shall give, I think it to be the case that the Magistrates' Court, as it is now constituted by the Magistrates Court Act 1991(SA), is so constituted that a magistrate sitting in the criminal division of the Magistrates' Court has the same obligation as that referred to by Lord Esher.

39. The procedure in the Magistrates' Court is governed mainly, but not wholly, by the Summary Procedure Act 1921(SA). Where that Act uses the word `court', it is referring to the Magistrates' Court of South Australia.

40. Section 70 of the Summary Procedure Act provides:
    "When the court convicts or makes an order against the
    defendant, a minute or memorandum of the conviction or order
    shall then be made.

No fee shall be paid for any such minute or memorandum."

41. It seems to me that s70 supports the proposition that it is not the pronouncement that gives rise to a final conclusion of the proceedings, rather it is the entry of the minute or memorandum of the order.

42. It was argued, however, that such a view would be contrary to authority and that the pronouncement itself of the sentence, without the recording of the sentence in written form was enough to cause the Magistrate to become functus officio and therefore disentitle him from withdrawing the sentence once pronounced.

43. In R v Roberts-Smith; Ex Parte Kowald (1977) 16 SASR 147, the Full Court was called upon to consider the question of whether a court of summary jurisdiction had power to set aside a conviction upon complaint after the conviction had been recorded. In that case a summons was issued to a defendant who did not appear either in person or by counsel. Leave to proceed ex parte was sought and granted and the defendant was convicted. The complaint was endorsed "Conviction recorded". The matter was adjourned so that notices could be given under the Justices Act 1921(SA) in relation to the matter of penalty.

44. On a subsequent occasion the defendant appeared and advised that he wished to plead not guilty. The Court made an order setting aside the conviction from which order the Crown applied to the Full court of the Supreme Court, seeking prohibition and certiorari.

45. Bray CJ said (at 149):
    "There appears to be no doubt that once a conviction has
    been recorded in a court of summary jurisdiction, the court
    is functus officio except as to penalty, and there is no
    power in it to set aside the conviction. In Gray v. Jones
(1948) SASR 201, at p 204 Napier CJ said:
    `But a court of summary jurisdiction is not a court of
    record. Its judgment is a complete as soon as it is
    pronounced, R. v Manchester Justices; Ex parte Lever (1937)
    30 Cox CC 603. The cases show that that must not be taken
too literally (Jones v. Williams (1877) 36 LT 559; Bagg v.
Colquhoun (1904) 1 KB 554; R v Marsham; Ex parte Pethick
Lawrence (1912) 2 KB 362), but in this case, where the
    minute under s. 70 of the Justices Act had been made, and
    the court had dispersed, the judgment was clearly completed.

In these circumstances, there was no power to reopen the
    hearing.'

The cases referred to by the learned Chief Justice do not to
    my mind affect the present case. Jones v Williams (1877) 36
    L.T. 559 was a case where it was held that the conviction
    was not complete until it had been recorded and that the
    court could change its mind between the verbal pronouncement
    and the formal recording. But this case is of doubtful
    authority; see Reg. v. Mills; Ex parte Edwards (1958)
    SASR 54, at p 66. The better opinion is, I think, that
    the conviction is complete as soon as it is pronounced: R.
    v. Manchester Justices; Ex parte Lever (1937) 30 Cox CC
    603. In any event here the complaint was endorsed with the
    words `Conviction Recorded' as I have said. The power of a
    court of summary jurisdiction to set aside a conviction once
    recorded was denied by the Full Court in Reg. v. Mills; Ex
parte Edwards (1958) SASR 54 just referred to, and by
    the Full Court of Queensland in Kimlin v. Wilson; Ex parte
Kimlin (1966) Qd R 237."

46. There is no doubt that his Honour was of the opinion that once a formal record had been made of a conviction, the court was functus officio and could not set aside the conviction it had recorded. In coming to that conclusion his Honour relied upon the dicta of Napier CJ in Gray v Jones, that a court of summary jurisdiction was not a court of record and that once it had made its order, the court, being a court of summary jurisdiction and not a court of record, dispersed. His Honour implicitly, I think, disapproved the decision in Jones v Williams (supra).

47. It is important to understand the character of a court of summary jurisdiction at the time when Gray v Jones (supra) and R v Roberts-Smith (supra) were decided. A court of summary jurisdiction was constituted by a particular Magistrate, or by Justices of the Peace, ad hoc for the purpose of determining a complaint at a particular place. As Wells J said in R v O'Loughlin; Ex parte Ralphs (1971) 1 SASR 219 at 286:

    "... the principle that a court of summary jurisdiction is
    not continually in session, but is constituted by a special
    magistrate or particular justices, at a particular place,
    while he or they are sitting either on an original, or an
    adjourned, hearing. There is not one South Australian court
    of Summary Jurisdiction, as there is one South Australian
    Supreme Court, which sits at various times and in various
    places but always has the same Court."

48. Bray CJ said in the same case (at 231):
    "But I agree with Wells J and with the reason he gives that,
    whatever a court of record may do by way of staying a
    prosecution, such a course is not appropriate or even
    competent in a court of summary jurisdiction in this State.
    In fact it seems to me that each time such a court sits, it
    sits ad hoc as constituted by the particular special
    magistrate or justices on the bench. There is no court of
    summary jurisdiction for this State as a whole, or for any
    geographical part of it, possessing permanence or continuity
    so as to permit one court to remove a stay imposed by a
    differently constituted court."

49. His Honour continued (at 231):
    "At least I think that a court of summary jurisdiction in
    South Australia at the end of the day can only convict or
    dismiss or adjourn and an adjournment must be to a fixed day
    (ss. 65(2), 67 and 69)."

50. The decision in R v Roberts-Smith has been overruled by a subsequent decision of this Court and I will refer to the later cases in due course, but I return to the decision in relation to another aspect of it.

51. Bray CJ in R v Roberts-Smith, continuing on from the passage earlier extracted from his Honour's judgment, said (at 149):
    "A similar rule applies to sentence. Once that has been
    pronounced the court of summary jurisdiction is functus
    officio and has no power to quash or alter it. The locus
    poenitentiae available to a judge of a superior court
    whereby he can alter his sentence at any time before he has
    signed the so-called record or report at the end of the
session (see Reg. v. Nam and Sansbury (1968) SASR 54) is
    not available to a court of summary jurisdiction (Reg. v.
Smith; Ex parte James (1966) SASR 47)."

52. In relation to conviction his Honour relied, as I have mentioned, upon the dicta of Napier CJ in Gray v Jones (supra) which talked about the minute of a conviction having been made and the judgment being complete. Bray CJ doubted that there was a necessity to record a conviction, but that the pronouncement of the conviction was sufficient.

53. In relation to sentence his Honour did not discuss whether or not it was necessary that the sentence be recorded, but simply referred to it being pronounced. I think it is consistent with his Honour's reasons that his Honour, in relation to sentence, was of the view that the Court would become functus officio immediately upon the sentence being pronounced, and that there was no necessity for the sentence to be recorded.

54. Bray CJ, as the dicta referred to above shows, relied upon the decision in R v Smith; Ex parte James (supra). In that case (again a decision of the Full Court of this Court) the applicant sought certiorari to quash a conviction in relation to offences under the Road Traffic Act 1961-1964(SA), for which the applicant had pleaded guilty. The Magistrate, who heard the matter, endorsed the complaint, pursuant to s70 of the Justices Act, with the following:
    "Defendant present and pleads guilty to Count one. Counts
    two and three withdrawn. (1) Previous conviction admitted.
    Convicted, imprisoned for three months with hard labour.
    Order: Defendant disqualified from holding or obtaining a
    driver's licence for a period of five years."

55. The applicant and his father later appeared before the Magistrate, in his chambers, and sought a reconsideration of the sentence upon the basis that the previous conviction referred to was not in fact a previous conviction as it had been recorded on the same day.

56. The Magistrate purported to accede to the request and endorsed on the complaint:
    "Count Three: To enter into own recognizance for two years.
    Bond pound 30, under the supervision of Prob. Officer, to
    attend Police Lecture on two occasions ...

Imprisonment order rescinded in count (1). Conviction, Fine
    pound 80. Costs pound 2. Total pound 82. I/D, 4 months.
    Time, 8 months,
    8/7/64."

57. The Full Court (Napier CJ, Chamberlain and Hogarth JJ) said (at 50):
    "It seems to us that, when the Magistrate announced his
    decision, and signed the minute (under s70 of the Justices
    Act) he was functus officio, and it is clear that the
    subsequent action, when he purported to re-open the hearing,
    and to alter the sentence on the first count, and to convict
    the applicant on the third count, was a nullity (R. v S. Ex
Justices; Ex parte Final (1963) 2 QB 816). But, on the
    other hand, we have no doubt that we should have been
    compelled to refuse the application for certiorari, if it
    had been left to depend upon the evidence tendered by the
    applicant."

58. It seems to me that a reading of R v Smith (supra) shows that case to be an authority for the proposition that once a Magistrate is functus officio he cannot interfere with the sentence imposed, but it does not, with the greatest respect to Bray CJ, stand for any more. Indeed, it seems to me to be contrary to Bray CJ's reasoning in R v Roberts-Smith in that the case assumed there needed to be both a pronouncement of sentence and a signing of the minute under s70 of the Justices Act before the Magistrate was rendered functus officio.

59. The decision in R v Roberts-Smith has been criticised on a number of occasions; see Daire v Louss (1984) 35 SASR 508 and R v Judge Crowe; Ex parte Rees (1985) 39 SASR 398. In the latter, King CJ said (at 400):
    "The authority of R v Roberts-Smith; Ex parte Kowald (supra)
    has been challenged and argued in this Court on more than
    one occasion, particularly in the light of the decision from
    The House of Lords in S (An Infant) v Recorder of Manchester
(1971) AC 481, but thus far this Court has not found it
    necessary to reconsider the correctness of the decision. It
    may be that the correctness of the decision is also open to
    question by reason of the views expressed in the judgments
    of the various members of the High Court in Taylor v Taylor
(1979) 53 ALJR 629. That was the view of Yeldham J in
McLachlan v Pilgrim (1980) NSWLR 422 at 435."

60. In the last mentioned case, Yeldham J expressed the view that the decision in R v Roberts-Smith was erroneous.

61. The decision in R v Roberts-Smith was given without reference to a decision of The House of Lords in S. (An Infant) v Recorder of Manchester (supra) which was apparently not brought to the attention of that Court. In S. (An Infant) v Recorder of Manchester involved a young man who appeared in the juvenile court charged with attempted rape. He pleaded guilty, electing to be tried summarily. The plea was accepted and the Magistrates entered a finding of guilt. The matter was then adjourned for the purpose of inquiring into the appellant's physical and mental condition. On the adjourned hearing he was represented by a solicitor who drew to the attention of the court the appellant's mental condition, and the fact that the appellant had previously made spurious admissions in other matters. He argued that the appellant be allowed to withdraw his plea of guilty and to plead not guilty instead. The application was refused on the grounds that the Magistrates were functi officio and had no such authority.

62. The House of Lords allowed the appeal, deciding that a court of summary jurisdiction which had accepted a plea of guilty to an offence was not thereby debarred from permitting, at any time before passing sentence, the plea of not guilty to be substituted. In the speeches of their Lordships, their Lordships reviewed a relatively modern authority R v Guest; Ex parte Anthony (1964) 1 WLR 1273, which had decided otherwise and overruled that decision. There was no consideration by their Lordships as to whether the court of summary jurisdiction was debarred, by reason of it being such a court and not a court of record, from setting aside its own convictions once pronounced.

63. A specially constituted court of five members came to reconsider the decision in R v Roberts-Smith in McNicholl v Tothill (1988) 47 SASR 134. That Court concluded that the decision in R v Roberts-Smith was inconsistent with the decision of The House of Lords in S (An Infant) v Recorder of Manchester (supra) and ought to be reconsidered. In reconsidering the previous South Australian decision, their Honours reached the conclusion that it was plainly incorrect and the previous decision was overruled.

64. King CJ said (at 135):
    "I am satisfied by the judgments of the Law Lords that the
    decision of this Court in Kowald's case (R v Roberts-Smith;
    Ex parte Kowald), to which I was a party, is plainly wrong.
    There is no reason in principle, and since the case cited no
    reason on authority, to deny to a court of summary
    jurisdiction the discretion enjoyed by other courts
    exercising criminal jurisdiction, to permit, prior to
    sentence, the withdrawal of a plea of guilty for sufficient
    reason and in such a case to set aside a conviction."

65. Legoe J reasoned that as the decision in Gray v Jones (supra), upon which Bray CJ had relied in R v Roberts-Smith, itself relied upon English decisions such as R v Sheridan (1936) 2 All ER 883 and R v Manchester Justices; Ex parte Leaver (1937) 2 KB 96, which decisions The House of Lords had disapproved in S. (An Infant) v Recorder of Manchester (supra), that the premise underpinning Bray CJ's dicta in R v Roberts-Smith was therefore shown to be wrong, and in those circumstances, the decision in R v Roberts-Smith itself, was wrong.

66. Matheson J held that the decision in S. (An Infant) v Recorder of Manchester was persuasive and that there was nothing in the Magistrates Courts Act (U.K.) which prevented the application of its reasoning in South Australia. His Honour also reached the conclusion that the decision in R v Roberts-Smith ought to be overruled.

67. All of their Honours thus far mentioned only referred to that part of the decision in R v Roberts-Smith which related to the setting aside of a conviction.

68. Prior J said (at 150):
    "The judgment of a Magistrate's Court is complete as soon as
    it is pronounced, but that does not occur in a case like
    this until conviction in the sense of determination of guilt
    and disposition of the matter occurs. A finding of guilty
    alone does not make a Magistrate functus officio. Any
    minute or memorandum made at the time of a plea of guilty is
    to be distinguished from that required by s70 of the
    Justices Act 1921. Conviction in that section means a
    complete judgment; in this case, both the determination of
    guilt and the imposition of penalty: contrast the meaning
    of conviction in ss70, 73, 75, 76, 77, 80, 130, 163 and 187
    with the narrower determination of guilt in ss67, 69, 70a,
    70b, 129(3) and 133."

69. Von Doussa J said (at 151):
    "In my opinion this court should now follow S. (An Infant) v
Recorder of Manchester (1971) AC 481 and hold that a court
    of summary jurisdiction does not become functus officio
    until a complaint is finally disposed of after an
    adjudication of guilt by judgment or sentence. The speeches
    of their Lordships so undermined the reasoning in R v Mills;
Ex parte Edwards (1958) SASR 54 at 61, 65-66 and the R v
Roberts-Smith; Ex parte Kowald (1977) 16 SASR 147 at 149,
    153-154, that it can no longer be supported."

70. McNicholl v Tothill can only be understood as directly over-ruling R v Roberts-Smith in relation to that part of the decision which said that a court of summary jurisdiction was functus officio when a conviction was pronounced and before sentence. The Court was not called upon to consider the further point of Bray CJ's decision which dealt with sentence.

71. The case, therefore, does not decide the question that must be decided here as to whether or not it is the pronouncement of the sentence itself or the recording of the sentence which renders the Magistrate functus officio.

72. I have already pointed to the fact that in R v Smith; Ex parte James (supra) the Full Court determined that it was the pronouncement of the decision and the signing of the minute that made the court of summary jurisdiction functus officio.

73. I do not believe that any of the cases to which I have so far referred direct the conclusion that the pronouncement of the sentence makes a court of summary jurisdiction functus officio. Indeed, I believe the weight of authority would tend to suggest that a court of summary jurisdiction does not become functus officio until it has pronounced its sentence and made the minute required by s70 of the Justices Act.

74. In saying that I have not overlooked the dicta of Bray CJ in R v Roberts-Smith. I think, however, there are relevant matters that need to be mentioned in connection with the Chief Justice's statement. The first, as I have discussed, is that his Honour was considering a court of summary jurisdiction, in circumstances where it dispersed. Indeed, his Honour was comparing the circumstances of a court of summary jurisdiction with the circumstances of a court of superior record. What his Honour said must be understood in that light.

75. This matter was heard by a court of record. It was heard by a Magistrate's Court, which in its criminal division is a court of summary jurisdiction (s7 of the Magistrates Court Act).

76. By s4 of the Magistrates Court Act, the Magistrates' Court now is a court established as a juristic entity (R v O'Loughlin; Ex parte Ralphs (1971) 1 SASR 219 at 231).

77. In Tarasenko v Boylan (1992) 58 SASR 587 at 589, King CJ said:
    "Courts of summary jurisdiction, upon which jurisdiction to
    dispose of charges of summary offences was conferred by the
    Summary Procedure Act 1921 (formerly Justices Act 1921),
    were not courts of record and had no continuity. A
    Magistrate or Justice sitting to hear a complaint of a
    summary offence sat ad hoc as a court of summary
    jurisdiction to dispose of that complaint. When the
    complaint was disposed of that court of summary jurisdiction
    ceased to exist: R v O'Loughlin; Ex parte Ralphs (1971)
1 SASR 219, per Bray CJ at 231. Such courts were
    effectively abolished when the Magistrates Court Act came
    into operation in 1992. Jurisdiction to hear and determine
    a charge of a summary offence was conferred upon the
    Magistrates Court by s9. The Magistrates Court was
    established by the Magistrates Court Act as a court of
    record possessing continuity and a permanent structure."

78. That it is now a court of record cannot be doubted (s5 of the MagistratesCourt Act).

79. It seems to me that constitution, by enactment of the Magistrates Courts Act, as a juristic entity and as a court of record, undermines the reasoning which caused the court in R v Roberts-Smith to suggest that the mere pronouncement of a sentence was sufficient to make the court functus officio.

80. In my opinion, a Magistrate's Court does not become functus officio until such time as it has pronounced sentence, and indeed, has minuted its order pursuant to s70 of the Summary Procedure Act. Although R v Roberts-Smith may still be authority for the proposition that a court of summary jurisdiction is functus officio upon pronouncement of a sentence, it is not authority for the proposition that a Magistrate's Court, in its criminal division, exercising the powers of a court of summary jurisdiction, is functus officio upon the pronouncement of a sentence.

81. It follows, therefore, in my view, that the Magistrate was entitled, because he was not functus officio, to withdraw the reasons for decision which he had published to Mr Laganin and Mr D'Angelo, and this is so even if my earlier conclusion is wrong and the publication of those reasons for decision amounted to a pronouncement of the sentence.

82. If I am wrong about both of these matters which I have addressed, and the Magistrate was functus officio, he still had power, pursuant to s76a of the Summary Procedure Act, on his own initiative, to set aside the order made by way of sentence.

83. Section 76a, which came into force on 7th July 1992, replaced a previous section which had provided for the setting aside of a conviction or order, but only in restricted circumstances. The new section was enacted at the same time as Parliament constituted the Magistrates' Court of South Australia a court of record.

84. Section 76a of the Summary Procedure Act reads:
    "(1) The Court may, on its own initiative or on the
    application of any party, set aside a conviction or order.

(2) An application to set aside a conviction or order under
    this section must be made within 14 days after the applicant
    received notice of the conviction or order.

(3) The Court may set aside a conviction or order under this
    section if satisfied -
    (a) that the parties consent to have it set aside;
    (b) that the conviction or order was made in error; or
    (c) that it is in the interest of justice to set aside the
    conviction or order.

(4) Where the Court sets aside a conviction or order under
    this section it may, without further formality -
    (a) proceed to re-hear the proceedings in which the
    conviction or order was made; or
    (b) adjourn the proceedings for subsequent re-hearing."

85. Section 76b was enacted at the same time and it reads: "The Court may, on its own initiative or on the application of any party, correct an error in a conviction or order."

86. Section 76a, in my opinion, operates both separately and in conjunction with 76b, to confer jurisdiction on the court to make orders which the court would not otherwise have been able to make because it was functus officio.

87. Section 76b is the statutory equivalent for the Magistrates Court of the slip rule. It would only operate in circumstances where a minute has been entered under s70, because otherwise there would be nothing to correct. There is no time limit upon applications under that section.

88. Section 76a on the other hand requires an application to be made within 14 days of the conviction or order. Whilst ordinarily such an application would follow after the applicant had received notice of the conviction or order and thus there would be a minute which would satisfy s70, it is perhaps possible that an application could be made without the recording of a minute.

89. The learned magistrate did not purport to act under either section, nor in my opinion could he have without first giving the parties notice of the exercise of his initiative and allowing the parties to be heard.

90. In my opinion, a failure to hear the parties would constitute a denial of natural justice with the consequence that, if Mr Gumpl SM was functus officio and hence relying on his power under s76a in deciding to withdraw his reasons, certiorari would lie to quash that decision.

91. But as I have indicated earlier, I do not believe that to be the case in this matter. I have concluded that Mr Gumpl SM was not functus officio, whether because sentence had not been pronounced or, alternatively, because pronouncement alone did not render him functus officio. Mr Gumpl SM was therefore entitled to withdraw his reasons without the necessity of relying upon s76a.

92. Accordingly I decline to make any of the orders sought by the plaintiff, and the plaintiff's application for judicial review will be dismissed.