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.

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] HCA 38; (1979) 53 ALJR 629. That was the view of Yeldham J in McLachlan v Pilgrim (1980) NSWLR 422 at 435."

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

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.

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.

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.

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."

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.

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.

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.

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."

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."

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.

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.

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.

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.

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.

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).

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).

In Tarasenko v Boylan [1992] SASC 3642; (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."

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

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.

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.

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.

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.

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.

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."

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."

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.

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.

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.

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.

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.

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.

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