Resulting in convicted appellant being freed by Full Court
IN 1961, appellant Archer was convicted by a magistrate on a charge of dangerous driving , but his conviction and sentence were set aside by the Full Court on the ground that the magistrate committed a specific illegality that affected the merit of the case.
The Full Court also found that the magistrate not only drew erroneous inferences from the circumstantial evidence, but did not properly evaluate the evidence of the eye witnesses in the light of the several discrepancies.
The appellant was represented by Attorney-at-law Mr. P.N. Singh, while Crown Counsel Mr. David Singh appealed for the Respondent,
After the appellant appealed, the Full Court was constituted by Justice Aubrey Fraser and Justice B.O. Adams, S.C.
The facts of the case disclosed that the appellant was convicted by a magistrate’s court of the offence of dangerous driving .
In his appeal (which was allowed on another ground) it was argued on his behalf that the magistrate committed a specific illegality affecting the merits of the case when he permitted the appellant to make an unsworn statement.
Section 64 of the Evidence Ordinance , Chapter 25, provides that with certain irrelevant exceptions, “all oral evidence must be given upon oath”. However, proviso (h) to section 52 provides that nothing in that Ordinance “shall effect ….any right of the person charged to make a statement without being sworn”.
Further, section 4 provides that, subject to other statutory provisions for the time being in force , English common law rules and principles relating to evidence shall, so far as they are applicable to the circumstances of the Colony, be in force therein.
Allowing the appeal, the Full Court held Section 64 of chapter 25 relates to oral evidence and not to unsworn statements, and the defendant’s right to make an unsworn statement is specifically safeguarded and retained by poviso (h) to section 52. Pat v. Vanvieldt, 1960 L.R.B.G. 254, not followed.
Justice Fraser, who delivered the judgment of the Full Court, noted that the appellant was charged with dangerous driving contrary to section 36 (1) of the Motor Vehicles and Road Traffic Ordinances, Chapter 280.
The particulars of offence were that, on Friday, 1st January, 1960 , he drove car No. HD 585 at Ruimveldt Public Road, in the Georgetown Judicial District , in a manner that was dangerous to the public.
He was tried before a magistrate of the Georgetown Judicial District, convicted and fined $75 with costs $12.24.
From this conviction, he has appealed, and through his counsel, has urged as one of the grounds that the magistrate committed a specific illegality affecting the merits of the case when he permitted the appellant to make an unsworn statement.
In the Case of Pat v. Vanvieldt, 1960 , L.R.B.G. 254, The Full Court of appeal, consisting of Justices Date and Justice Gordon , expressed an opinion in the form of an obiter dictum on the question whether a person who has been tried in a magistrate’s court for a summary conviction offence should at the close of the case of the prosecution be given the option of making an unsworn statement from the dock as was done in trials for indictable offences before the Supreme Court.
The full Court of Appeal drew a distinction between the rights of a defendant in English Courts of summary jurisdictions and his rights in local magistrate’s courts, and concluded that while it would seem that in the former courts accused persons were given the option of making unsworn statements, the latter courts were essentially creatures of statute and had no authority to adopt such a procedure.
Continuing his judgment , President of the Full Court, Justice Fraser, declared, ”Mr. David Singh, Counsel for the respondent, ably urged upon this court the view that the expression of opinion in Pat v. Vanvieldt was incorrect.
He traced the history of a defendant’s rights to give evidence in a magistrate’s court and submitted that the position in British Guiana before 1900 was that such a defendant was not allowed to give evidence on oath, but that since 1900, the defendant has the right to give evidence on oath in his defence
with the option to make an unsworn statement..
In his concluding remarks, President Fraser of the Full Court noted that the appellant had said in a statement to the police that his car was travelling south, in the centre of the road, at between 15 to 20 miles per hour.
A pedal cyclist who was proceeding north suddenly swerved from west to east across the road in front of his car , as it was about to pass his car, and swerved and went into the trench.
If the appellant’s statement is true , he would not be guilty of dangerous driving because he took evasive action in the agony of the moment.
The prosecution led no evidence to contradict the appellant’s account, except for a statement from the witness Cummings that she did not see any cyclist which was rebutted by an allegation.

Justice Fraser’s final words in the court’s judgment were, ” This Court is unable to draw the conclusion from these measurements and the absence of skid marks that the appellant’s version was untrue, or that the car was travelling in a manner dangerous to the public;
The magistrate not only drew erroneous inferences from the circumstantial evidence, but did not properly evaluate the evidence of eye witnesses in the light of the several discrepancies.
In the circumstances, this appeal is allowed, the conviction and sentence are set aside, and the respondent is to pay the appellant’s costs.