Commissioner of Police Service v Magistrate Spencer and Ors

This curious matter has given rise to number of interesting points concerning the conduct of summary hearings under the Justices Act. The essential facts of this complex matter were that an accused had appeared with his solicitor at the time and place for his summary hearing on a charge of “failing to stop a motor vehicle when directed to contrary to the Police Powers and Responsibilities Act”. The solicitor identified to the Court what the charges were and that his client was pleading guilty. The accused was then sentenced with the Magistrate imposing, inter alia, what he believed was a mandatory fine of $5,500. Henry J held that the fine was, in fact, the minimum, not mandatory, sentence and the Magistrate could have imposed the, apparently, more severe sentence of six months probation. Subsequently, on the day that the Magistrate imposed the initial sentence, he indicated in Court to the police prosecutor that he intended to re-open the hearing and the Clerk of the Court issued a notice indicating that the re-opening was to occur under s 188 of the Penalties and Sentences Act. The Magistrate subsequently indicated that he thought that the prosecution should have been brought under a different section of the PPRA. At the hearing of the re-opening of sentence the police asserted that there was no power to re-open and the accused claimed that the earlier proceedings were a nullity because the substance of the complaint had not been given to him and he had not been asked how he pleaded contrary to s 145 of the Justices Act. The Magistrate agreed with that latter proposition and determined that the original proceedings were a nullity and ordered that a new hearing occur. On that subsequent hearing the accused pleaded guilty and was sentenced by another Magistrate to, inter alia, six months probation. The police sought judicial review of the decisions of the magistrates. On these unusual facts Henry J determined as follows:

• That the Magistrate had no basis for re-opening the sentence under s 188 of the Penalties and Sentences Act. That is not a section which entitles Courts to review sentences when new facts come to light.
• The re-opening procedure under s 188 would have no effect upon any conviction which cannot be altered under that provision.
• In the circumstances, there was no power to re-open the sentencing under s 188.
• The original proceedings were not a nullity by reason of the non-compliance with s 145 of the Justices Act. The failure to comply with that section was an irregularity which could be waived as it was in the present proceedings and there was no misunderstanding or injustice occasioned by the non-compliance. The irregularity did not permit the re-opening of the proceedings.
• The circumstances in which a proceeding can be re-opened where a person has been convicted were not applicable in the present case.
• Even though it followed that the purported re-opening of the original proceedings was without power and that, necessarily the second sentencing was also without power, the Supreme Court would not interfere with the second sentencing proceedings because of the lapse of time and the fact that the second sentence could have been appealed under s 222 of the Justices Act.