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

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=1480

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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.