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Criminal Procedure And Evidence - General And Supplementary (Ss 328-337)

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PART XXIII
General and Supplementary (ss 328-337)

[Ch0802s328]328.   How documents are to be served

            (1) Unless some period is expressly provided, any notice or document, except a summons to an accused person, required to be served upon an accused person shall be served by delivering it to the accused 10 days at least before the day specified therein for his trial if his trial is before the High Court, or two days at least (Sundays and public holidays excluded) before that day if his trial is before a magistrate's court, or, when the accused cannot be found, by leaving a copy of the notice or document with a member of his household at his dwelling, or, if no person belonging to his household can be found, then by affixing such copy to the principal outer door of the said dwelling or of any place where he actually resides or was last known to reside.

            (2) Where the accused has been admitted to bail any such notice or document may either be served upon him personally or left at the place specified in the recognizance as that at which any notice of trial and service of the indictment or summons may be made.

            (3) The officer serving any such notice as aforesaid shall forthwith deliver or transmit to the official from whom he has received the notice or document for service a return of the mode in which service was made, and such return shall be prima facie evidence that the service of the notice or document was made in the manner and form as in the return stated.

            (4) Members of the Botswana Police Force shall, subject to the rules of court, be qualified to serve any notice or document under this Act as if they had been appointed Deputy-Sheriffs or deputy-messengers or other like officers of the court.

[Ch0802s329]329.   Person making a statement in a criminal case entitled to copy

            Whenever a person has made to a peace officer a statement in writing, or a statement which was reduced to writing, relating to any transaction, and criminal proceedings are thereafter instituted in connection with that transaction, any person in possession of such statement shall furnish the person who made the statement, at his request, with a copy of such statement.

[Ch0802s330]330.   Mode of proving service of process

            Whenever it is necessary to prove service of any summons, subpoena, notice, or other process, or the execution of any judgment or warrant under this Act, the service or execution may be proved by affidavit made before a justice or commissioner of oaths having jurisdiction to take affidavits in the district wherein the affidavit is made or in any other manner in which the service or execution might have been proved if it had been effected in the district or other area wherein the summons, subpoena, notice or other process or judgment or warrant emanated.

[Ch0802s331]331.   Transmission of summonses, writes, etc., by telegraph

            Any summons, writ, warrant, rule, order, notice or other process, document, or communication, which by any law, rule of court, or agreement of parties is required or directed to be served or executed upon any person, or left at the house or place of abode or business of any person, in order that such person may be affected thereby, may be transmitted by telegraph, and a telegraphic copy served or executed upon such person, or left at his house or place of abode or business, shall be of the same force and effect as if the original had been shown to, or a copy thereof served or executed upon, such person, or left as aforesaid, as the case may be.

[Ch0802s332]332.   Liability to punishment in case of offences by corporate bodies, partnerships, etc.

            (1) In any criminal proceedings under any enactment against a company, the secretary and every director or manager or chairman thereof in Botswana may, unless it is otherwise directed or provided, be charged with the offence and shall be liable to be punished therefor, unless it is proved that he did not take part in the commission of the offence, and that he could not have prevented it.

            (2) In any such proceedings against a local authority, the mayor, chairman, city or town clerk, secretary or other similar officer shall, unless it is otherwise directed or provided, be liable to be so charged, and in like circumstances punished for the offence.

            (3) In any such proceedings against a partnership, every member of such partnership who is in Botswana shall, unless it is otherwise directed or provided, be liable to be so charged, and in like circumstances punished for the offence.

            (4) In any such proceedings against any association of persons not specifically mentioned in this section, the president, chairman, secretary, and every other officer thereof in Botswana shall, unless it is otherwise directed or provided, be liable to be so charged, and in like circumstances punished for the offence.

            (5) Nothing in this section shall be deemed to exempt from liability any other person guilty of the offence.

            (6) In any criminal proceedings against a corporate body, any record which was made or kept by a director, servant or agent of the corporate body within the scope of his activities as such director, servant or agent, or any document which was at any time in the custody or under the control of any such director, servant or agent within the scope of his activities as such director, servant or agent, shall be admissible in evidence against the accused.

            (7) For the purposes of subsection (6) any record made or kept by a director, servant or agent of a corporate body or any document which was at any time in his custody or control shall be presumed to have been made or kept by him or to have been in his custody or control within the scope of his activities as such director, servant or agent, unless the contrary is proved.

            (8) In any proceedings against a director or servant of a corporate body in respect of an offence, any evidence which would be or was admissible against that corporate body in a prosecution for that offence, shall be admissible against that director or servant.

            (9) In this section the word "director" in relation to a corporate body means any person who controls or governs that corporate body or who is a member of a body or group of persons which controls or governs that corporate body or where there is no such body or group, who is a member of that corporate body.

[Ch0802s333]333.   Provisions as to offences under two or more enactments

            Where an act or omission constitutes an offence under two or more enactments, the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either enactment, but shall not be liable to more than one punishment for the act or omission constituting the offence.

[Ch0802s334]334.   Estimating age of person

            If in any criminal proceedings the age of any person is a relevant fact of which no or insufficient evidence is available in those proceedings, the court may estimate the age of such person by his appearance or from any information which may be available, and the age so estimated shall be deemed to be such person's correct age, unless-

     (a)     it is subsequently proved that the said estimate was incorrect; and

     (b)     the person accused in those proceedings could not have been lawfully convicted of the offence with which he was charged if the said person's correct age had been proved.

[Ch0802s335]335.   Binding over of persons to keep the peace

            (1) Whenever a complaint on oath is made to a magistrate that any person is conducting himself violently towards or is threatening injury to the person or property of another or that he has used language or behaved in a manner towards another likely to provoke a breach of the peace or assault, then, whether such conduct occurred or such language was used or such threat was made in a public or private place, the magistrate may order such person to appear before him, and if necessary may cause him to be arrested and brought before him.

            (2) The magistrate shall thereupon inquire into and determine upon such complaint and may place the parties or any witnesses thereat on oath, and in his discretion may order the person against whom the complaint is made to give recognizances with or without sureties in an amount not exceeding P50 for a term not exceeding six months to keep the peace towards the complainant and refrain from doing or threatening injury to his person or property.

            (3) The magistrate may, upon the inquiry, order the person against whom the complaint is made or the complainant to pay the costs of and incidental to the inquiry.

            (4) If any person after having been ordered to give recognizances under this section refuses or fails to do so, the magistrate may order him to be committed to gaol for a period not exceeding one month unless such security is sooner found.

            (5) If the conditions upon which the recognizances were given are not observed by the person who gave the same, the magistrate may declare the recognizances to be forfeited, and any such declaration of forfeiture shall have the effect of a judgment in a civil action in the magistrate's court of the district.

[Ch0802s336]336.   Power of Director of Public Prosecutions to invoke Court of Appeal's decision on point of law

            (1) Where the High Court, at any stage of criminal proceedings, gives or makes any decision, ruling, opinion or statement on or in relation to a question of law and the Director of Public Prosecutions has any doubt as to the correctness thereof, he may submit that decision, ruling, opinion or statement to the Court of Appeal and cause the correctness thereof to be argued before the Court of Appeal on behalf of the State in order that the Court of Appeal may determine the correctness thereof for the future guidance of all courts.

            (2) For the removal of doubt, it is hereby declared that the application of subsection (1) extends to an opinion or statement which is not essential to the determination of any issue.

[Ch0802s337]337.   Finger-prints and other marks

            (1) Any member of the Botswana Police Force or any gaoler may take the finger-prints, palm-prints and foot-prints of any person arrested upon any charge, and any such policeman, gaoler or a medical officer may take or cause to be taken such steps as he may deem necessary in order to ascertain whether the body of any such person, not being a woman, bears any mark, characteristic or distinguishing feature, or shows any condition or appearance:

            Provided that-

      (i)     the finger-prints, palm-prints or foot-prints of any person not guilty of such charge shall be destroyed;

      (ii)     any print made or taken under this section previous to the occurrence which is the subject of criminal proceedings, whenever no order exists for the destruction of such finger-print or record, may be used as evidence in a criminal trial.

            (2) The presiding officer of any court may order that the finger-prints, palm-prints and foot-prints of any person accused before such court of any offence, be taken, and may take all such steps as may by such officer be deemed necessary to ascertain whether the body of the accused bears any mark, characteristic or distinguishing feature, or shows any condition or appearance.

            (3) Any record from a finger-print bureau, whether within or outside Botswana, produced by the person appointed to the charge of that bureau which purports to be the record of a finger-print, palm-print, or foot-print of the accused shall be admissible and shall be accepted as prima facie evidence of the facts stated in the record.

FIRST SCHEDULE

PART I
Offences in connection wherewith Vehicles and Receptacles may be Seized and Confiscated under Sections 56 and 319

     Any offence under any law relating to the illicit possession, conveyance or supply of intoxicating liquor.

     Any offence under any law relating to the illicit possession of or dealing in precious metals or precious stones.

 

PART II
Offences Specified in the Penal Code (Cap. 08:01), Lotteries and Betting Act (Cap. 19:02)
and Foreign Enlistment Act (Cap. 21:06) in respect of which Arrests under Part VI
shall not be Made without a Warrant

Offences under the Penal Code

SECTION

     21.     Aiding, abetting, counselling, etc. another to commit an offence

     43.     Aiding members of the Forces in acts of mutiny

     44.     Inducing desertion

     45(b). Aiding prisoners of war to escape

     59.     Alarming publications

     60.     Defamation of foreign princes

     89.     Challenging to a duel

     102.   Officers charged with administration of property of special character or with special duties

     103.   False claims by officials

     104. (1)      Abuse of office

            (2)      Abuse of office (if for purposes of gain)

     105.   False certificate by public officers, etc.

     106.   Unauthorized administration of oaths

     107.   False assumption of authority

     109.   Threat of injury to persons employed in public service

     111.   Perjury and subornation of perjury

     116.   Fabricating evidence

     117.   False swearing

     118.   Deceiving witnesses

     119.   Destroying evidence

     120.   Conspiracy to defeat justice and interference with witnesses

     121.   Compounding certain serious offences

     122.   Advertisements for stolen property

     129.   Frauds and breaches of trust by public officers

     130.   Neglect of official duty

     132.   Disobedience of statutory duty

     133.   Disobedience of lawful orders

     140.   Writing or uttering words with intent to wound religious feelings

     176.   Common nuisance

     185.   Adulteration of food or drink for sale

     186.   Sale of noxious food or drink

     187.   Adulteration of drugs

     188.   Sale of adulterated drugs

     190.   Fouling air

     191.   Offensive trades

     192.   Definition of criminal defamation

     241.   Dealing in poisonous substances in negligent manner

     245.   Danger or obstruction in public way river

     246.   Common assault

     376.   Counterfeiting, etc. trade marks

     384.   Corrupt practice

     385.   Secret commission on Government contracts

     389.   Attempt to commit offences (if arrest for the offences attempted may not be made without a warrant)

     391.   Soliciting or inciting others to commit offence (if arrest for the offence solicited or incited may not be made without a warrant)

     392.   Conspiracy to commit offence (if arrest for the offence conspired may not be made without a warrant)

     393.   Other conspiracies

     395.   Punishment of accessory after the fact (if arrest for the principal offence may not be made without a warrant)

Lotteries and Betting Act

     19.     Gaming houses-

            (3)      Keeping common gaming house

            (4)      Being found in common gaming house

     21.     Betting houses

     22.     Lotteries

            (1)      Carrying on lottery

            (2)      Printing or publishing advertisement relating to lottery

Foreign Enlistment Act

     3.       Illegal enlistment

     4.       Leaving Botswana for enlistment

     5.       Inducing enlistment by misrepresentation

     6.       Taking on board illegally enlisted persons

     7.       Illegal expeditions

 

SECOND SCHEDULE
OFFENCES ON CONVICTION WHEREOF THE OFFENDER CANNOT BE DEALT WITH UNDER SECTION 308

Murder.

Rape.

Robbery.

     Any offence in respect of which a minimum punishment is by law imposed.

     Any conspiracy, incitement or attempt to commit any of the above mentioned offences.

 

THIRD SCHEDULE
FORMS OF STATING OFFENCES IN INDICTMENTS AND SUMMONSES

(section 131)

1-MURDER

Murder, contrary to section 202 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the .................. day of ................................................................. 20 ......, at ...................................... in the .......................................................................... district, murdered C.D.

2-ACCESSORY AFTER THE FACT TO MURDER

Accessory after the fact to murder, contrary to section 219 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., well knowing that one C.D., did on ............... the day of ..................................., 20 ..........., at ............................... in the ...............................................................................
district, murder E.F., did on the ....................................... day of .........................................
at ........................ in the ................................................................................. district, and on other days thereafter receive, comfort, harbour, assist and maintain the said C.D.

3-MANSLAUGHTER

Manslaughter, contrary to section 200 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on ........... the day of ..................................., 20 ..........., at ............................... in the ..................................................................................................................................
district, unlawfully killed C.D.

4-RAPE

Rape, contrary to section 142 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the ............ day of ....................................................20 ......, at ............................. in the ................................................................................... district, had carnal knowledge of C.D., without her consent.

5-WOUNDING

FIRST COUNT

Wounding with intent, contrary to section 227 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the .......... day of ................................................................................. 20 ......, at .............................. in the ...........................................................................................
district, wounded C.D. with intent to maim, disfigure or disable, or to do some grievous harm, or to resist the lawful arrest of him, the said A.B.

SECOND COUNT

Wounding, contrary to section 233 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the .................. day of ..................................................................................
20 ......, at ...................................... in the ......................................................................
district, unlawfully wounded C.D.

6-THEFT

FIRST COUNT

Stealing, contrary to section 271 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the ................. day of .....................................................................................
20 ......, at ................................... in the ............................................................................
district, stole a watch, the property of C.D.

SECOND COUNT

Receiving stolen goods, contrary to section 317 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the ..................... day of ..................................................................................
20 ......, at .................................. in the .............................................................................
district, did receive a watch, the property of C.D., knowing the same to have been stolen.

7-THEFT BY CLERK

Stealing by clerks and servants, contrary to sections 271 and 277 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the ..................... day of ..................................................................................
20 ......, at .............................. in the .................................................................................
district, being clerk or servant to C.D., stole from the said C.D. 4.5 kilograms of sugar.

8-ROBBERY

Robbery with violence, contrary to section 292 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

A.B., on the ..................... day of .....................................................................................
20 ......, at ..................... in the .........................................................................................
district, robbed C.D., of a watch, and at, or immediately before or immediately after, the time of such robbery did use personal violence to the said C.D.

9-BURGLARY

Burglary, contrary to section 300, and theft, contrary to section 271 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., in the night of the ..................... day of ..................................................................
20 ......, at .................................. in the .............................................................................
district, did break and enter the dwelling-house of C.D., with intent to steal therein, and did steal therein one watch, the property of E.F., the said watch being of the value of P25,00.

10-THREATS

Demanding property by written threats, contrary to section 295 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the ..................... day of ..................................................................................
20 ......, at ............................... in the ................................................................................
district, with intent to exort money from C.D., caused the said C.D. to receive a letter containing threats of injury or detriment to be caused to E.F.

11-ATTEMPTS TO EXTORT

Attempts to extort by threats, contrary to section 296 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the ..................... day of ..................................................................................
20 ......, at ........................... in the ....................................................................................
district, with intent to extort money from C.D., accused or threatened to accuse the said C.D. of an unnatural offence.

12-FALSE PRETENCES

Obtaining by false pretences, contrary to section 308 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the ..................... day of ..................................................................................
20 ......, at ....................... in the ........................................................................................
district, with intent to defraud, obtained from C.D. five leopard skins by falsely pretending that the said A.B. was a servant to E.F., and that he, the said A.B., had then been sent by the said E.F. to C.D., for the said leopard skins and that he, the said A.B., was then authorized by the said E.F. to receive the said leopard skins on behalf of the said E.F.

13-CONSPIRACY TO DEFRAUD

Conspiracy to defraud, contrary to section 312 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

A.B. and C.D., on the ..................... day of .........................................................................
and on divers days between that day and the ........................................................................
day of ............................, at .............................. in the ......................................................
district, conspired together with intent to defraud by means of an advertisement inserted by them, the said A.B. and C.D. in the E.F. newspaper, falsely representing that A.B. and C.D. were then carrying on a genuine business as trophy dealers at ......................................... , in
the .................. district, and that they were then able to supply certain trophies to whomsoever would remit to them the sum of P150,00.

14-ARSON

Arson, contrary to section 326 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the ..................... day of ..................................................................................
20 ......, at ........................ in the .......................................................................................
district, wilfully and unlawfully set fire to a house.

15-ARSON AND COUNSELLING OR PROCURING THE SAME

A.B., Arson, contrary to section 326 of the Penal Code (Cap. 08:01)
C.D., counselling or procuring the same offence.

PARTICULARS OF OFFENCE

     A.B., on the ........................ day of ...............................................................................
20 ......, at ........................... in the ....................................................................................
district, wilfully and unlawfully set fire to a house.

     C.D., on the same day, at .................................................................................. district
did counsel or procure the said A.B., to commit the said offence.

16-DAMAGE

Damaging trees, contrary to section 333 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the ..................... day of ..................................................................................
20 ......, at ........................ in the .......................................................................................
district, wilfully and unlawfully damaged an orange tree there growing.

17-FORGERY

FIRST COUNT

Forgery, contrary to section 345 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the ..................... day of ..................................................................................
20 ......, at ......................... in the ......................................................................................
district, forged a certain will purporting to be the will of C.D.

SECOND COUNT

Uttering a false document, contrary to section 348 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the ..................... day of ..................................................................................
20 ......, at ......................... in the ......................................................................................
district, knowingly and fraudulently uttered a certain forged will purporting to be the will of C.D.

18-COUNTERFEIT COIN

Uttering a counterfeit coin, contrary to section 367 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the ..................... day of ..................................................................................
20 ......, at ......................... in the ......................................................................................
district, uttered a counterfeit 10 thebe piece, knowing the same to be counterfeit.

19-PERJURY

Perjury, contrary to section 111 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the ..................... day of ..................................................................................
20 ......, at ........................ in the .......................................................................................
district, being a witness upon the trial of an action in the High Court of Botswana, in which one C.D. was plaintiff, and one E.F. was defendant, knowingly gave false testimony that he saw one, G.N. in the street called the ..................... on the ..................... day of ..................

20-CRIMINAL DEFAMATION

Publishing defamatory matter, contrary to section 192 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the ..................... day of ..................................................................................
20 ......, at ....................... in the ........................................................................................
district, published defamatory matter affecting C.E., in the form of a (book, pamphlet, picture or as the case may be).

(Innuendo should be stated where necessary)

21-FALSE ACCOUNTING

FIRST COUNT

Fraudulent false accounting, contrary to section 324 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the ..................... day of ..................................................................................
20 ......, at ....................... in the ........................................................................................
district, being clerk or servant to C.D., with intent to defraud, made or was privy to making a false entry in the cash book belonging to the said C.D., his employer, purporting to show that on the said day P2 000 had been paid to E.F.

SECOND COUNT

Same as first count

PARTICULARS OF OFFENCE

     A.B., on the ..................... day of ..................................................................................
20 ......, at ....................... in the ........................................................................................
district, being clerk or servant to C.D., with intent to defraud omitted or was privy to omitting from a cash book belonging to the said C.D., his employer, a material particular, that is to say, the receipt on the said day of P2 000 from E.F.

22-THEFT BY AGENT

FIRST COUNT

Theft by agents and others, contrary to section 271 and section 279 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the ..................... day of ..................................................................................
20 ......, at ........................ in the .......................................................................................
district of Botswana, stole P2 000 which had been entrusted to him by C.D. for him, the said A.B., to retain in safe custody.

SECOND COUNT

Stealing by agents and others, contrary to section 271 and section 279 of the Penal Code (Cap. 08:01)

PARTICULARS OF OFFENCE

     A.B., on the ..................... day of ..................................................................................
20 ......, at ....................... in the ........................................................................................
district, stole P2 000 which had been received by him, for and on account of C.D.