-hence Full Court frees convicted appellant
IN 1961, an appellant named 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 had 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 eyewitnesses in light of the several discrepancies.
The appellant was represented by Attorney-at-law, Mr. PN Singh, while Crown Counsel, Mr. David Singh appeared for the respondent.
After the appellant appealed, the Full Court was constituted by Justices Aubrey Fraser and B.O. Adams, S.C.
The facts of the case disclosed that the appellant (Archer) was convicted by a magistrate’s court  of the offence  of dangerous driving.
On appeal (which was allowed on another ground), it was argued on his behalf that the magistrate had 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 affect ….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 that Section 64 of Chapter 25  relates to oral evidence and not to unsworn statements, and that the defendant’s right to make an unsworn statement was specifically safeguarded and retained  by proviso (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 January 1, 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 of $12.24.
“From this conviction, he has appealed and through his counsel, has urged as one of the grounds of appeal 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 with his judgment, 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, Justice Fraser 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, and that a pedal cyclist, who was proceeding north, suddenly swerved from west to east across the road  in front of his car, and that as it was about to pass his car, swerved  and went into the trench.
He said that if the appellant’s statement were true,  he would not be guilty of dangerous driving  because  he took evasive action  in the agony of  the moment, but 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.”