Criminal Procedure And Evidence - Previous Convictions (Ss 283-288)

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=1473

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PART XVI
Previous Convictions (ss 283-288)

[Ch0802s283]283. Previous conviction not to be charged in indictment, etc.

It shall not be lawful in any indictment or

summons against any person for any offence to allege that such person has been

previously convicted of any offence whether in Botswana or elsewhere.

[Ch0802s284]284. Previous conviction not to be proved, etc., except in certain

circumstances

Except in circumstances specifically described in

this Act, it shall not be lawful to prove at the trial of any person for any

offence that he has been previously convicted of any offence, whether within Botswana

or elsewhere, or to ask any accused person, charged and called as a witness,

whether he has been so convicted.

[Ch0802s285]285. Tendering admission of previous conviction after accused has

pleaded guilty, or been found guilty

When any person indicted before the High Court for

any offence has been previously convicted of any offence, whether within

Botswana or elsewhere, it shall be lawful for the prosecutor, if the accused

has under section 80 admitted that he has been so previously convicted and his

admission has also been subscribed by the magistrate in accordance with that

section, and if further he has pleaded guilty to or been found guilty of the

offence, and before sentence is pronounced, to tender the admission in proof of

the previous conviction, and such admission shall be received by the court upon

its mere production as proof of the previous conviction unless it is shown that

the admission was not in fact duly made or that the signatures or marks thereto

are not in fact the signatures or marks of the accused and the magistrate

respectively:

Provided that if the accused made the admission

under section 80 but refused to subscribe the same by signature or mark, a

solemn declaration signed by the magistrate and attached to the document signed

by him under section 80, stating that the accused did so make the admission but

refused to subscribe the same shall, upon its mere production, be sufficient

evidence that the accused admitted the previous conviction.

[Ch0802s286]286. Notice that proof of former conviction will be offered

(1) When any person indicted in the High Court for

any offence has been previously convicted of any offence, whether within

Botswana or elsewhere, it shall be lawful for the Director of Public

Prosecutions in cases in which the procedure prescribed by section 80 has not

been followed to give notice to him, that in the event of his pleading guilty,

or being found guilty of the offence for which he is indicted, proof will be

given of such previous conviction.

(2) The period of the notice required under this

subsection (1) shall not be less than 72 hours.

[Ch0802s287]287. Mode of proof of previous conviction

(1) Whenever notice has been duly served on a

person that evidence of a previous conviction will be given against him as

provided by section 286 it shall be lawful, if such person pleads guilty, or

after he has been found guilty, for the prosecutor before sentence is

pronounced to offer to prove such previous conviction, and thereupon the court

shall ask such person whether he confesses that he is the person so appearing

to have been previously convicted and whether he was so convicted as alleged.

(2) If such person neither confesses that he has

been so convicted nor has admitted it at the preparatory examination in manner

prescribed in section 80, the court shall itself proceed to determine the truth

as to such of the alleged previous convictions as the accused has not confessed

or admitted in manner aforesaid.

(3) If the trial is before a magistrate's court

the prosecutor may, after the accused has pleaded guilty, or has been found

guilty, tender evidence of such previous convictions as he may allege in

respect of the accused. Thereupon the court shall ask the accused whether he is

the person so alleged to have been previously convicted and shall proceed to

determine the truth as to such alleged previous convictions as the accused has

not confessed or admitted.

(4) If on any trial any previous conviction is

lawfully proved against the accused, or if he confesses or has admitted such

previous conviction, the court shall take it into consideration in awarding

sentence for the offence to which he has pleaded, or of which he has been found

guilty.

[Ch0802s288]288. Finger-print record to be prima facie evidence of previous

conviction

Notwithstanding anything to the contrary in this

Act, any finger-print or foot-print records, photographs or documents

purporting to be certified under the hand of any officer having charge of

criminal records of Botswana or of any other country (whether or not such

records, photographs or documents were obtained under any law or regulation

made under a law, and the person concerned was unable to prevent their being obtained)

shall, whenever under any provision of this Act a previous conviction may be

proved, be admissible in evidence before any court in proof of such previous

conviction and shall be prima facie evidence of the facts stated in such

records, photographs or documents:

Provided that such records, photographs and

documents shall be produced to the court by a policeman or prisons officer

having the custody of the same.