IN 1976, Cleveland Clarke was convicted of robbery with violence and sentenced to prison, but was freed by the Court of Appeal because it found that the trial judge erred in not telling the accused of his right to call witnesses in his defence.According to the Constitution of Guyana to omit to tell an unrepresented prisoner about this rights, is to deprive him of his fundamental rights, and as such the court freed the accused and set aside the conviction and sentence.
The appellant, who was unrepresented by a defence counsel at the trial, was charged and convicted for the crime of robbery with violence. He appealed his conviction on the ground that, inter alia, the trial judge did not inform him of his right to call witnesses to testify on his behalf, even though he had witnesses who could have done so.
There was no record to be found anywhere that the trial judge had told him of that right.
The Court of Appeal constituted by Justices of Appeal Victor Crane, R. H Luckhoo and Dhan Jhappan, held: (1) It is the constitutional right of every person who is charged with a criminal offence to be afforded such facilities as would enable him to obtain the attendance of witnesses for examination on his behalf before the court.
(2) An accused person must be at no disadvantage in obtaining the attendance of his witness because, according to the Constitution, he is to have the self-same conditions as those applying to prosecution witnesses for the procuring of witnesses for his trial.
(3) Where there is a failure to inform an accused of his right to call witnesses to testify on his behalf, no matter how overwhelming the case against an accused might be a court of appeal is disinclined to apply the proviso.
(The Proviso empowers the court to dismiss an appeal if it considers that no miscarriage of justice has occurred, even though it believes that the point raised in the appeal might be decided in favour of the appellant.)
(4) The Court of Appeal regards the matter of informing the accused of his right to call witnesses as one ex debito justitiae and any officer of the court present in court should remind the judge, if needs be, of his duty to do so.
(5) The trial judge should make a note in writing of the fact that he has so informed the accused: but even if there is no such note on record or in the State Book or on the original copy of the indictment, the Court of Appeal would receive affidavit evidence, if it thinks fit, to show that the judge did in fact so inform the accused of his right.’

Appeal allowed: Conviction and sentence set aside
At the appeal, K. A. Juman-Yasin and .N. Kissoon, Counsel, appeared for the appellant and the State respectively.
` Delivering the judgment of the court, Justice of Appeal Crane said: The appellant was convicted by a jury at the Demerara Assizes where he was arraigned on a charge of robbery with violence. The case for the prosecution was that he robbed one Sheriff Deen of the sum of $331.00, and at the time of or immediately before or immediately after the robbery he used personal violence to Sheriff Deen.
It was about 8.30 a.m. on April 30, 1973 when Police Constable Bernard was on mobile patrol in the city. On hearing shouts of “Thief! Thief!” from the north-western corner of the inter-section of Regent and King Streets, he looked in the direction and saw “an African lad grappling with an East Indian man.”
After releasing the man, the lad ran west along Regent Street, turned into an alleyway out of which he emerged into Robb Street. He then ran up the steps leading to premises above the Oasis Restaurant at Robb and King Streets.
Keeping the fleeing lad continuously within vision, Bernard pursued him up the stairway, but temporarily lost sight of him when he disappeared behind a wall in the building. Checking on the entire building, Bernard and other police officers came to a bedroom door, entry to which had to be gained by wrenching off a hasp and staple. Entering the room the police officers saw accused lying in bed with his shoes, socks and trousers on: and Bernard observed that he was attired in a T shirt at the time, though not the shirt in which he was dressed when first seen. That shirt was later found in the same bedroom by a search party of policemen.
Immediately upon the accused being brought out of the building, he was identified by Sheriff Deen, who was then standing on the road outside as the man who robbed him.
Justice Crane in his judgment said it is the habit of careful and prudent judges to make enquiries of every unrepresented accused person with respect to the names and addresses of his witnesses, immediately after arraignment and before the evidence is recorded, so that subpoenas could be issued by the registrar to those witnesses in good time.
There is no rule laid down for determining at what stage of the trial such enquiries should be made. Experience has shown, however, that to make them just after arraignment, i.e. before the first State witness testifies, saves time and expense at the trial, because if delayed until the time comes for the accused to make his defence, there is danger (which is not unknown) that an uncooperative and troublesome prisoner may give a fictitious list of witnesses, send the police on a “wild goose chase” and so caused his trial to be unduly protracted.
Now, it is important to observe from the above authorities that no matter how overwhelming the case against an accused might be, a court of appeal is disinclined to save the situation by the application of the proviso. In its wisdom the Court takes the view that the principle involved is so fundamental that it is greater than the case and invariably allows the appeal. The important point then is what precautions ought to be taken to avoid, as far as possible, a repetition of the judicial error of non-direction on so important a matter. “We think the matter is one ex debito justitiae,” the Court of Appeal said.
In this case, neither the “State Book” nor the Original copy of the indictment had been of any help to us, and as the trial had taken place exactly one year ago, we did not think a letter from the trial judge could be of any assistance to us in the matter. We had no option, therefore, but to quash the conviction and sentence and discharge the accused.