PART XIV
Witnesses and Evidence in Criminal Proceedings (ss 198-277)

A. SECURING THE ATTENDANCE OF WITNESSES (ss 198-209)

[Ch0802s198]198.   Process for securing the attendance of witnesses

            (1) Either party desiring to compel the attendance of any person to give evidence or to produce any book, papers or documents, in any criminal case, may take out of the office prescribed by rules of court the process of the court for that purpose.

            (2) When the accused desires to have any witnesses subpoenaed or warned and satisfies the prescribed officer of the court-

     (a)     that he is unable to pay the necessary costs and fees; and

     (b)     that such witnesses are necessary and material for his defence,

the prescribed officer of the court shall subpoena such witnesses or cause them to be warned.

            (3) In any case where the prescribed officer of the court is not so satisfied, he shall, upon the request of the accused, refer the application to the officer presiding over the court, who may grant or refuse such application or may defer giving his decision until he has heard the other evidence in the case or any part thereof.

            (4) For the purposes of this Part "prescribed officer" means the Registrar, Assistant Registrar, clerk of the court or any officer prescribed by rules of court.

[Ch0802s199]199.   Service of subpoenas

            Service of subpoenas in criminal cases shall be effected in the manner provided by rules of court.

[Ch0802s200]200.   Duty of witness to remain in attendance

            Every witness duly subpoenaed or warned to attend and give evidence at any criminal trial shall be bound to attend and to remain in attendance throughout the trial unless excused by the court.

[Ch0802s201]201.   Subpoenaing of witnesses or examination of persons in attendance by the court

            The court may at any stage subpoena any person as a witness or examine any person in attendance though not subpoenaed as a witness, or may recall and re-examine any person already examined; and the court shall subpoena and examine or recall and re-examine any person if his evidence appears to it essential for the purpose of arriving at a just decision of the case.

[Ch0802s202]202.   Powers of court in case of default of witness in attending or giving evidence

            (1) Whenever any person appearing either in obedience to a subpoena or warning or by virtue of a warrant, or being present and being verbally required by the court to give evidence, refuses to be sworn or, having been sworn, refuses to answer such questions as are put to him, or refuses or fails to produce any document or thing which he is required to produce, without in any such case offering any just excuse for such refusal or failure, the court may adjourn the proceedings for any period not exceeding eight days, and may, in the meantime, by warrant commit the person so refusing or failing to a gaol, unless he sooner consents to do what is required of him. If such person upon being brought up at the adjourned hearing again refuses or fails to do what is so required of him, the court, if it sees fit, may again adjourn the proceedings and commit him for the like period, and so again from time to time until such person consents to do what is required of him.

            (2) Nothing contained in this section shall prevent the court from giving judgment in any case or otherwise disposing of the same in the meantime according to any other sufficient evidence taken.

            (3) No person shall be bound to produce any document or thing not specified or otherwise sufficiently described in the subpoena unless he actually has it in court.

[Ch0802s203]203.   Requiring witness to enter into recognizance

            (1) Every court before which a trial is proceeding may lawfully require any witness, either alone or together with one or more sufficient sureties to the satisfaction of the court, to enter into a recognizance under the condition that the witness shall at any time within 12 months from the date thereof appear and give evidence at the trial upon being served with a subpoena or upon being warned at some certain place to be selected by the witness; and if any witness being so required to enter into any such recognizance refuses or fails to do so, the court may commit to and detain in a gaol the witness so refusing or failing, until such recognizance has been entered into as aforesaid.

            (2) Every recognizance so entered into shall specify the name and surname of the person entering into it, his occupation or profession (if any), the place of his residence and the name and number (if any) of the street in which that place is, and whether he is an owner or tenant thereof or a lodger therein.

            (3) All such recognizances shall be liable to be estreated in the same manner as any forfeited recognizance is by law liable to be estreated by the court before which the principal party thereto was bound to appear.

[Ch0802s204]204.   Absconding witness

            Whenever any person is bound by recognizance to give evidence or is likely to give material evidence before any court in respect of any offence, any magistrate may, upon information in writing and on oath that such person is about to abscond or has absconded, issue his warrant for the arrest of such person; and, if such person is arrested, any magistrate, upon being satisfied that the ends of justice would otherwise be defeated, may commit him to a gaol until the time at which he is required to give evidence, unless in the meantime he produce sufficient sureties; but any person so arrested shall be entitled on demand to receive a copy of the information upon which the warrant for arrest was issued.

[Ch0802s205]205.   Committal of witness who refuses to enter into recognizance

            Any witness who refuses to enter into any recognizance as aforesaid may be committed by the court by warrant to the gaol for the place where the trial is to be held, and to be kept there until after the trial, or until the witness enters into such a recognizance as aforesaid before a magistrate having jurisdiction in the place where the gaol is situated:

            Provided that, if the accused is afterwards discharged, any magistrate having jurisdiction shall order such witness to be discharged.

[Ch0802s206]206.   Compelling witness to attend and give evidence

            The provisions of section 66 shall mutatis mutandis apply in connection with any person subpoenaed or warned to attend any trial as a witness.

[Ch0802s207]207.   Witnesses from prison

            (1) When the attendance of any person confined in any gaol in Botswana is required in any court of criminal jurisdiction in any criminal case cognizable therein or at a preparatory examination, the court before which such prisoner is required to attend, or the judge of the High Court, may before or during the sittings or session of the court at which the attendance of such person is required, or the magistrate holding the preparatory examination (as the case may be) may make an order upon the gaoler or other person having the custody of such prisoner to deliver such prisoner to the person named in such order to receive him; and the person so named shall, at the time prescribed in the order, convey such prisoner to the place at which such person is required to attend, there to receive and obey such further order as to the said court seems fit.

            (2) The judge of the High Court may at any time order to be brought before the court any person confined in any gaol in Botswana for the purpose of taking such evidence as such judge may consider necessary.

            (3) Whenever the attendance of any person confined in a gaol is required as a witness on behalf of a private prosecutor or an accused person (other than an accused person to whose defence the evidence of such witness is deemed material and who has not sufficient means to make the deposit) there shall be deposited with the gaoler or other officer having the custody and control of the person so confined such sum as may be necessary to cover the expenses to be occasioned by the person so confined and his necessary escort to and from the court and his maintenance during such period as the person so confined and his escort are likely by reason of the attendance to be detained outside the gaol, and no person shall be required or allowed to obey any such summons unless such a sum has previously been deposited.

            (4) The expenses mentioned in subsection (3) shall be determined in accordance with a scale prescribed by the Minister.

[Ch0802s208]208.   Service of subpoena to secure the attendance of a witness residing in Botswana outside jurisdiction of court

            (1) Whenever a subpoena to give evidence in a criminal case has been issued out of any court and it appears that the person whose attendance is thereby required resides or is for the time being in a district in Botswana outside the area of jurisdiction of that court, a magistrate of that district shall endorse on the subpoena his order that it be served on the person named therein, and the subpoena so endorsed shall, when delivered to the proper officer within that district, be served by him as soon as possible on such person:

            Provided that-

      (i)     the necessary expenses to be incurred by the person subpoenaed, in going to and returning from the court whereat the subpoena was issued and his detention at the place whereat and for the purpose of which his attendance is required, shall be tendered to him with the subpoena;

      (ii)     if the subpoena is not sued out by the State a sum sufficient to cover the expenses of serving the subpoena shall be lodged with the Registrar or clerk of the court by the person suing out the subpoena.

            (2) If any person who has been served as aforesaid with a subpoena and to whom has been tendered the expenses aforesaid fails, without lawful excuse to attend at the time and place mentioned in the subpoena, a magistrate of the said district may issue a warrant for the apprehension of that person, who shall be liable to be dealt with in the same manner as he might have been dealt with if he had failed to attend without lawful excuse when served with a subpoena to attend a like court in the area wherein he resides or is for the time being.

            (3) The return of the proper officer showing that service of the subpoena has been duly effected, together with a certificate under the hand of the Registrar or clerk of the court that the person whose attendance was required by the subpoena failed to attend when called upon, and has established no lawful excuse for the non-attendance, shall be deemed sufficient proof of the non-attendance for the purpose of dealing with the said person under subsection (2):

            Provided that, in the case of a warning through a Chief, Sub-Chief or Headman, the court shall satisfy itself that the person concerned was duly warned.

            (4) The expression "proper officer" as used in this section includes a Sheriff, Deputy-Sheriff, messenger, deputy-messenger, or other officer who by law or rule of court is charged with the duty of serving subpoenas to witnesses in criminal cases.

[Ch0802s209]209.   Payment of expenses of witnesses

            (1) Any person who has attended any criminal proceedings as a witness for the State shall be entitled to such allowance as may be prescribed by regulations made under subsection (3):

            Provided that the officer presiding at such proceedings may if he thinks fit direct that no such allowance or only a part of such allowance shall be paid to any such witness.

            (2) Subject to any regulations made under subsection (3), the officer presiding at any criminal proceedings may, if he thinks fit, direct that any person who has attended such proceedings as a witness for the accused shall be paid such allowance as may be prescribed by such regulations, or such lesser allowance as such officer may determine.

            (3) The Minister may, by regulations, prescribe a tariff of allowances which may be paid out of public moneys to witnesses in criminal cases and may, by such regulations, prescribe different tariffs for witnesses according to their several callings, occupations or station in life, and according also to the distances to be travelled by them to reach the place of trial, preparatory examination or other criminal proceedings, and may, by regulations, further prescribe the circumstances in which any such allowance may be paid to any witness for the accused.

B. EVIDENCE ON COMMISSION (ss 210-213)

[Ch0802s210]210.   Taking evidence on commission

            (1) Whenever in the course of a trial, preparatory examination or any other criminal proceedings it appears to a court that the examination of a witness is necessary for the ends of justice and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience, which under the circumstances of the case would be unreasonable, such court may dispense with such attendance and may issue a commission to any magistrate or, where the witness is resident outside Botswana, to any person authorized by such court to take evidence on commission in civil cases outside Botswana, within the local limits of whose jurisdiction such witness resides:

            Provided that-

      (i)     in any such application, the specific fact or facts with regard to which the evidence of the witness is required shall be set out, and the court may by its order confine the examination of the witness to those facts, and

      (ii)     when the application is on behalf of the State, the court may, if it thinks fit to do so, direct as a condition of such order that the expense necessary to the representation of the accused by attorney or counsel at the examination shall be paid by the State.

            (2) The magistrate or other person to whom the commission is issued shall proceed to the place where the witness is or shall summon the witness before him, and shall take down his evidence in the same manner as in the case of an ordinary preparatory examination taken before himself or, where the commission is executed outside Botswana, in the same manner as a commission to take evidence in civil cases is executed.

[Ch0802s211]211.   Parties may examine witnesses

            (1) Any party to any criminal proceedings in which a commission is issued may transmit any interrogatories in writing which the court directing the commission may think relevant to the issue, and the magistrate or other person to whom the commission is directed shall examine the witness upon such interrogatories.

            (2) Any such party may appear before such magistrate or other person by counsel or attorney or, if not in custody, in person, and may examine, cross-examine and re-examine (as the case may be) the said witness.

[Ch0802s212]212.   Return of commission

            (1) After a commission under section 210 has been duly executed, it shall be returned, together with the deposition of the witness examined thereunder, to the court which issued it; and the commission, the return thereto, and the deposition shall be open at all reasonable times to the inspection of the parties, and may, subject to all just exceptions, be read in evidence in the case by either party and shall form part of the record.

            (2) Any deposition so taken may also be received in evidence at any subsequent stage of the case before another court.

[Ch0802s213]213.   Adjournment of inquiry or trial

            In every case in which a commission is issued under section 210 the trial, preparatory examination, or other criminal proceeding may be adjourned for a specified time, reasonably sufficient for the execution and return of the commission.

C. COMPETENCY OF WITNESS (ss 214-218)

[Ch0802s214]214.   No person to be excluded from giving evidence except under this Act

            Every person not expressly excluded by this Act from giving evidence shall be competent and compellable to give evidence in a criminal case in any court in Botswana or before a magistrate on a preparatory examination.

[Ch0802s215]215.   Court to decide questions of competency of witnesses

            It shall be competent for the court in which any criminal case is pending, or in the case of a preparatory examination, the magistrate, to decide upon all questions concerning the competency or compellability of any witness to give evidence.

[Ch0802s216]216.   Incompetency from insanity or intoxication

            No person appearing or proved to be afflicted with idiocy, lunacy, or insanity, or labouring under any imbecility of mind arising from intoxication or otherwise, whereby he is deprived of the proper use of reason, shall be competent to give evidence while under the influence of any such malady or disability.

[Ch0802s217]217.   Evidence for prosecution by husband or wife of accused

            (1) The wife or husband of an accused person is competent and compellable to give evidence for the prosecution without the consent of the accused person where such person is prosecuted for any offence against the person of either of them or any of the children of either of them or where the accused is charged with the offence of bigamy or incest or perjury committed in connection with or for the purpose of any judicial proceedings instituted or to be instituted or contemplated by the one of them against the other, or in connection with or for the purpose of any criminal proceedings in respect of any offence included in this section, or where the accused is charged with the offence of abduction or any contravention of any law in force in Botswana in regard to indecency or immorality.

            (2) The wife or husband of an accused person is competent but not compellable to give evidence for the prosecution without the consent of the accused person where such person is prosecuted for an offence against the separate property of the wife or husband of the accused person.

            (3) For the purposes of this section, the expressions "wife" and "husband" include persons married according to customary law recognized within Botswana, and if under such customary law more marriages than one validly existed at the time of the alleged offence, then any of the wives of the accused person shall-

     (a)     be competent and compellable to give evidence for the prosecution under subsection (1) where the alleged offence is against the person of another wife or her children; and

     (b)     be competent but not compellable to give evidence for the prosecution as provided in subsection (2) where the alleged offence is against the separate property of another wife.

[Ch0802s218]218.   Evidence of accused and husband or wife on behalf of accused

            (1) Every accused person, and the wife or husband (as the case may be) of every accused person, shall be a competent witness for the defence at every stage of the proceedings, whether the accused is charged solely or jointly with any other person:

            Provided that-

      (i)     an accused person shall not be called as a witness except upon his own application;

      (ii)     the wife or husband of an accused person shall not be called as a witness for the defence, except upon the application of the accused person.

            (2) Every accused person called as a witness in pursuance of this section shall, unless otherwise ordered by the court or by the magistrate holding a preparatory examination, give his evidence from the witness box or other place from which the other witnesses give their evidence.

            (3) Nothing in this section shall affect any right of the accused person to make a statement without being sworn:

            Provided that, if he gives evidence on his own behalf at the preparatory examination, such evidence may be read and put in at his trial by the prosecutor.

D. OATHS AND AFFIRMATIONS (ss 219-221)

[Ch0802s219]219.   Evidence to be on oath

            Any witness who is or may be required to give evidence before a court shall, before giving such evidence, and unless he is a person described in section 221, or unless he is permitted to make an affirmation in accordance with section 220, be required to take an oath in such form as the Chief Justice may direct.

[Ch0802s220]220.   Affirmations in lieu of oaths

            (1) In any case where any person who is, or may be, required to take an oath objects to do so, it shall be lawful for such person to make an affirmation in the following words: "I do truly affirm and declare that" (here insert the matter to be affirmed or declared). Such affirmation or declaration shall be of the same force and effect as if such person had taken such oath.

            (2) Every person authorized, required, or qualified by law to take or administer an oath shall accept, in lieu thereof, an affirmation or declaration as aforesaid.

            (3) The same penalties, punishments and disabilities which are respectively in force and are attached to any neglect, refusal or false or corrupt taking or subscribing of any oath administered in accordance with section 219, shall apply and attach in like manner in respect of the neglect, refusal, and false or corrupt making or subscribing respectively, of any such affirmation or declaration as in this section mentioned.

[Ch0802s221]221.   When unsworn or unaffirmed testimony admissible

            Any person produced for the purpose of giving evidence who, from ignorance arising from youth, defective education, or other cause, is found not to understand the nature, or to recognize the religious obligations, of an oath or affirmation, may be admitted to give evidence in any court or on a preparatory examination without being sworn or being upon oath or affirmation:

            Provided that-

      (i)     before any such person proceeds to give evidence the presiding officer before whom he is called as a witness shall admonish him to speak the truth, the whole truth, and nothing but the truth, and shall further administer or cause to be administered to him any form of admonition which appears, either from his own statement or other source of information, to be calculated to impress his mind and bind his conscience, and which is not, as being of an inhuman, immoral, or religious nature, obviously unfit to be administered; and

      (ii)     any such person who wilfully and falsely states anything which, if sworn, would have amounted to the crime of perjury, or any offence declared by any statute to be equivalent to perjury, or punishable as perjury, shall be deemed to have committed that crime or offence, and shall, upon conviction, be liable to such punishment as is by law provided as a punishment for that crime or offence.

E. ADMISSIBILITY OF EVIDENCE (ss 222-236)

[Ch0802s222]222.   Proof of certain facts by affidavit

            (1) Whenever in any criminal proceedings the question arises whether any particular act, transaction or occurrence did or did not take place in any particular department or sub-department or branch thereof or office of the Government or in a particular court of law or in a particular bank, or whether any particular officer of the Government did or did not perform any particular act or take part in any particular transaction, a document purporting to be an affidavit made by a person who in that statement alleges-

     (a)     that he is in the service of the Government or of the said bank, as the case may be;

     (b)     that if the said act, transaction or occurrence had taken place in the said department or sub-department or branch thereof or office, court or bank, or if the said official had performed the said act or taken part in the said transaction, it would in the ordinary course of events have come to his, the deponent's knowledge, and a record thereof, available to him, would have been kept;

     (c)     that no such act, transaction or occurrence came to his knowledge or that he satisfied himself that no such record was kept or that no such act, transaction or occurrence took place,

shall on its mere production in those proceedings by any person, but subject to the provisions of subsection (5), be prima facie proof that no such act, transaction or occurrence took place.

            (2) Whenever in any criminal proceedings the question arises whether any person bearing a particular name did or did not furnish any particular officer in the service of the Government with any particular information or document, a document purporting to be an affidavit made by a person who, in that affidavit, alleges that he is the said officer and that no person bearing the said name furnished him with any such information or document, shall on its mere production in those proceedings by any person, but subject to the provisions of subsection (5), be prima facie proof that the said person did not furnish the said officer with any such information or document.

            (3) In any criminal proceedings in which the registration of any matter or the recording of any fact or transaction under any law is relevant to the issue, such registration or recording and any matter connected therewith may, subject to the provisions of subsection (5), be proved prima facie by the production of a document purporting to be an affidavit made by the person upon whom the said law confers the power or imposes the duty to effect any such registration or to record any such fact or transaction.

            (4) Whenever any fact ascertained by any examination or process requiring any skill in bacteriology, biology, chemistry, physics, astronomy, geology, geography, anatomy, pathology, toxicology, or the identification of finger or palm prints is or may become relevant to the issue in any criminal proceedings, a document purporting to be an affidavit made by the person who in that affidavit alleges that he is in the service of the Republic of Botswana or of the Republic of South Africa or a province thereof or in the service of, or attached to, the South African Institute for Medical Research or any university in Southern or Central Africa or any institution designated by the President for the purposes of this section by order published in the Gazette, and that he has ascertained any such fact by means of such examination or process, and that he possesses the requisite skill in the relevant subject, shall on its mere production in those proceedings by any person, but subject to the provisions of subsection (5), be admissible to prove that fact:

            Provided that such affidavit shall not be so admissible in a magistrate's court (if objected to by an accused or his representative, where the affidavit is produced by the prosecutor, or if objected to by the prosecutor or by an accused or his representative where the affidavit is produced by another accused or his representative) unless the objector or his representative has received, not later than three days after the day upon which the accused was summoned or otherwise notified of his trial, a notice in writing that such affidavit will be tendered in evidence at the trial, and has not within three days of the day of the receipt of such notice given notice in writing to the person who gave such first-mentioned notice, that he will object to the production of such affidavit.

            (5) The court in which any such affidavit is adduced in evidence may in its discretion cause the person who made it to be summoned to give oral evidence in the proceedings in question, or may cause written interrogatories to be submitted to him for reply, and such interrogatories and any reply thereto, purporting to be a reply from such person, shall likewise be admissible in evidence in such proceedings.

            (6) Nothing contained in this section shall affect any provision of any law under which any certificate or other document is made admissible in evidence, and the provisions of this section shall be deemed to be additional to, and not in substitution for, any such provision.

[Ch0802s223]223.   Reports by medical and veterinary practitioners

            In any proceedings before any court any facts ascertained by a medical practitioner or officer or by an intern or houseman in regard to any injury or the state of mind or condition of body of any person or his opinion as to the cause of death of any person, or any facts ascertained by a veterinary surgeon or officer as to any injury or his opinion as to the cause of death of any animal may be proved by a written report purporting to be signed by such medical practitioner or officer, intern or houseman, or veterinary surgeon or officer and such report shall be prima facie evidence of the facts stated therein and such report may be received and accepted as evidence in such proceedings without further proof being given that the signature is that of the medical practitioner or officer, intern or houseman or veterinary surgeon or officer in question unless the contrary be proved:

            Provided that the court may, of its own motion or on the application of the prosecution or the accused, in its discretion decline to admit such report in evidence when tendered and require the person who has signed the report to attend the court to give evidence.

[Ch0802s224]224.   Inadmissibility of irrelevant evidence

            No evidence as to any fact, matter or thing shall be admissible which is irrelevant or immaterial and cannot conduce to prove or disprove any point or fact at issue in the case which is being tried.

[Ch0802s225]225.   Hearsay evidence

            No evidence which is in the nature of hearsay evidence shall be admissible in any case in which such evidence would be inadmissible in any similar case depending in the Supreme Court of Judicature in England.

[Ch0802s226]226.   Admissibility of dying declaration

            The declaration made by any deceased person upon the apprehension of death shall be admissible or inadmissible in evidence in every case in which such declaration would be admissible or inadmissible in any similar case depending in the Supreme Court of Judicature in England.

[Ch0802s227]227.   Admissibility of depositions at preparatory examination of witness since deceased or kept away by the contrivance of the accused

            (1) The deposition of any witness taken upon oath before any magistrate at a preparatory examination in the manner directed and required by section 70 in the presence of any person who has been brought before such magistrate on a charge of having committed an offence, or the deposition of a witness taken in the circumstances described in section 100, shall be admissible in evidence on the trial of the person for any offence charged in an indictment by the Director of Public Prosecutions on a preparatory examination at which the deposition was taken or on that person's trial before a magistrate's court or on the remittal of that person's case by the Director of Public Prosecutions after considering the same preparatory examination:

            Provided that-

      (i)     it shall be proved on oath to the satisfaction of the court that the deponent is dead, or is incapable of giving evidence, or that he is too ill to attend, or that he is kept away from the trial by the means and contrivance of the accused, and that the deposition offered in evidence is the same which was sworn before the magistrate without alteration; and

      (ii)     it appears on the record or is proved to the satisfaction of the court that the accused, by himself, his counsel or attorney had a full opportunity of cross-examining the witness.

            (2) The evidence of a witness given at a former criminal trial shall, under like circumstances, be admissible on any subsequent trial of the same person upon the same charge.

            (3) Where the witness cannot be found after diligent search or cannot be compelled to attend or is absent from Botswana and delay or unnecessary expense would arise if he were compelled to attend, the court may, in its discretion, allow his deposition to be read as evidence at the trial subject to the conditions hereinbefore mentioned.

[Ch0802s228]228.   Admissibility of confessions by accused if freely and voluntarily made without undue influence and, if judicial, after due caution

            (1) Any confession of the commission of any offence shall, if such confession is proved by competent evidence to have been made by any person accused of such offence (whether before or after his apprehension and whether on a judicial examination or after commitment and whether reduced into writing or not), be admissible in evidence against such person:

            Provided that-

      (i)     such confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto,

      (ii)     if such confession is shown to have been made to a policeman, it shall not be admissible in evidence under this section unless it was confirmed and reduced to writing in the presence of a magistrate or any justice who is not a member of the Botswana Police Force, or

     (iii)     when such confession has been made on a preparatory examination before any magistrate, such person must previously, according to law, have been cautioned by the magistrate that he is not obliged, in answer to the charge against him, to make any statement which may incriminate himself, and that what he then says may be used in evidence against him.

            (2) In any proceedings, any confession which is by virtue of any provision of subsection (1) inadmissible in evidence against the person who made it, shall become admissible against him if he or his representative adduces in those proceedings any evidence, either directly or in cross-examining a witness, of any statement, verbal or in writing, made by the person who made the confession, either as part thereof or in connection therewith, if such evidence is, in the opinion of the officer presiding at such proceedings, favourable to the person who made the confession.

[Ch0802s229]229.   Admissibility of facts discovered by means of inadmissible confession

            (1) It shall be lawful to admit evidence of any fact otherwise admissible in evidence, notwithstanding that such fact has been discovered and has come to the knowledge of the witness who gives evidence respecting it only in consequence of information given by the person under trial in any confession or deposition which by law is not admissible in evidence against him on such trial, and notwithstanding that the fact has been discovered and has come to the knowledge of the witness against the wish or will of the accused.

            (2) It shall be lawful to admit evidence that anything was pointed out by the person under trial or that any fact or thing was discovered in consequence of information given by such person, notwithstanding that such pointing out or information forms part of a confession or statement which by law is not admissible against him on such trial.

[Ch0802s230]230.   Confession not admissible against others

            No confession made by any person shall be admissible as evidence against any other person.

[Ch0802s231]231.   Admissibility of confessions and other statements made before magistrate or justice

            (1) A policeman may take or cause to be taken any person lawfully detained in his custody before a magistrate or any justice who is not a member of the Botswana Police Force and the magistrate or justice shall give that person the opportunity to make a statement to him in respect of any offence that person is alleged to have committed and, if that person elects to make a statement, the magistrate or justice shall record the same in writing in the language in which it is made or in some other language into which it is duly translated while being made.

            (2) Before any person makes a statement in terms of this section, the magistrate or justice shall caution him to the effect that he is not obliged to say anything unless he wishes to do so but that should he elect to say anything it will be recorded in writing and may be used in evidence either for or against him.

            (3) Every statement recorded in accordance with this section shall, whether it amounts or does not amount to a confession of the commission of any offence, be admissible in evidence either for or against the maker thereof at any subsequent trial or preparatory examination in respect of any offence, to the extent that the contents thereof are sufficiently relevant for the purpose of the trial or preparatory examination.

            (4) Notwithstanding subsection (3), a statement recorded in accordance with this section shall not be admissible in evidence against the maker thereof unless it is proved to have been freely and voluntarily made by him in his sound and sober senses and without having been unduly influenced thereto.

[Ch0802s232]232.   Evidence of character: when admissible

            Save as is provided in section 249 no evidence as to the character of the accused or as to the character of any woman on whose person any rape or attempt to commit rape or indecent assault is alleged to have been committed shall, in any such case, be admissible or inadmissible if such evidence would be inadmissible or admissible in any similar case depending in the Supreme Court of Judicature in England.

[Ch0802s233]233.   Evidence of genuineness of disputed writings

            Comparison of a disputed writing with any writing proved to the satisfaction of the court, or of a magistrate holding a preparatory examination, to be genuine shall be permitted to be made by witnesses; and such writings and the evidence of witnesses respecting the same may be submitted to the court or magistrate (as the case may be) as evidence of the genuineness or otherwise of the writing in dispute.

[Ch0802s234]234.   Certified copy of record of criminal proceedings sufficient without production of record

            Whenever it is necessary to prove the trial and conviction or acquittal of any person charged with any offence, it shall not be necessary to produce the record of the conviction or acquittal of such person, or a copy thereof, but it shall be sufficient that it is certified or purports to be certified under the hand of the Registrar or clerk of the court or other officer having the custody of the records of the court where such conviction or acquittal took place, or by the deputy of such Registrar, clerk or other officer, that the paper produced is a copy of the record of the indictment, summons or charge and of the trial, conviction, and judgment or acquittal (as the case may be), omitting the formal parts thereof.

[Ch0802s235]235.   Gazette evidence in certain cases

            (1) Whenever proof is required of the contents of any law, or of any other matter which has been published in the Gazette, judicial notice shall be taken of such law or other matter.

            (2) A copy of the Gazette, or a copy of such law or other matter purporting to be printed under the superintendence or authority of the Government Printer, shall, on its mere production, be evidence of the contents of such law, statutory instrument or other matter as the case may be.

[Ch0802s236]236.   Appointment to a public office

            Any evidence which would be admissible in any criminal case depending in the Supreme Court of Judicature in England as evidence of the appointment of any person to any public office, or of the authority of any person to act as a public officer, shall be admissible in criminal cases in Botswana and before a magistrate holding a preparatory examination.

F. EVIDENCE OF ACCOMPLICES (ss 237-238)

[Ch0802s237]237.   Freedom from liability to prosecution of accomplices giving evidence

            (1) Where any person who to the knowledge of the public prosecutor has been an accomplice, either as principal or accessory, in the commission of any offence alleged in any indictment or summons, or the subject of a preparatory examination, is produced as a witness by and on behalf of the public prosecutor and submits to be sworn as a witness, and fully answers to the satisfaction of the court or magistrate all such lawful questions as are put to him while under examination such person shall thereby be absolutely freed and discharged from all liability to prosecution for such offence, either at the public instance or at the instance of any private party; or, when he has been produced as a witness by and on behalf of any private prosecutor who is aware of such person's complicity, from all prosecution for such offence at the instance of any such private prosecutor.

            (2) The said court or magistrate shall thereupon cause such discharge to be duly entered on the record of the proceedings:

            Provided that such discharge shall be of no force and effect and the entry thereof on the record of the proceedings shall be deleted if, when called as a witness at a re-opening of the preparatory examination or at the trial of any person upon a charge of having committed such offence, the person in respect of whom the discharge was made fails to submit to be sworn as a witness or fully to answer, to the satisfaction of the magistrate holding the preparatory examination or of the court trying such charge, all such questions as are put to him while under examination as a witness.

            (3) No such accomplice produced as a witness by and on behalf of any private prosecutor shall, in any case, be bound or legally compellable to answer any question whereby he may incriminate himself in respect of any offence alleged in the indictment or summons, or the subject of a preparatory examination, unless there is produced to him, and put on record, a writing under the hand of the officer who by law is entitled to prosecute at the public instance in such court or at the preparatory examination, discharging such accomplice from all liability to prosecution at the instance of the public prosecutor for such offence.

[Ch0802s238]238.   Evidence of accomplice not to be used against him if he should thereafter be tried for the offence

            Where any accomplice in any offence alleged in any indictment or summons, or the subject of a preparatory examination, has, as described in section 237, been produced as a witness by and on behalf of the public prosecutor, or of any private prosecutor (by whom there has been obtained from such officer as aforesaid, a written discharge of any such accomplice from liability to prosecution) and has given evidence upon a trial or preparatory examination, it shall not be lawful to give in evidence against such accomplice, if he is thereafter tried for such offence, any part of the testimony which has been so given by him at the said trial or preparatory examination:

            Provided that nothing contained in this section shall be construed as freeing or exempting any such accomplice who has been guilty of perjury while under examination as a witness in any such trial or preparatory examination from any penalties or forfeitures to which persons guilty of perjury are or shall be liable by law or as rendering incompetent or inadmissible any evidence which would otherwise be competent and admissible in the trial of such accomplice on a charge of perjury on his examination as a witness in any such trial or preparatory examination aforesaid.

G. SUFFICIENCY OF EVIDENCE (ss 239-243)

[Ch0802s239]239.   Sufficiency of one witness in criminal cases, except perjury and treason

            It shall be lawful for the court by which any person prosecuted for any offence is tried, to convict such person of any offence alleged against him in the indictment or summons on the single evidence of any competent and credible witness:

            Provided that it shall not be competent for any court-

      (i)     to convict any person of perjury on the evidence of any one witness unless, in addition to and independent of the testimony of such witness, some other competent and credible evidence as to the guilt of such person is given to such court, or

      (ii)     to convict any person of treason except upon the evidence of two witnesses where one overt act is charged in the indictment, or, where two or more such overt acts are so charged, upon the evidence of one witness to each overt act.

[Ch0802s240]240.   Conviction on single evidence of accomplice

            Any court which is trying any person on a charge of any offence may convict him of any offence alleged against him in the indictment or summons on the single evidence of any accomplice:

            Provided that the offence has, by competent evidence, other than the single and unconfirmed evidence of the accomplice, been proved to the satisfaction of such court to have been actually committed.

[Ch0802s241]241.   Conviction of accused on plea of guilty or evidence of confession

            (1) If any person arraigned before any court upon any charge has pleaded guilty to that charge or has pleaded guilty to having committed any offence other than the offence with which he is charged but of which he might be found guilty on the indictment or summons and the prosecution has accepted that plea, the court may in its discretion convict and sentence him without hearing any evidence:

            Provided that if the court is a magistrate's court, it shall, before convicting and sentencing the accused, comply with such directions as the Chief Justice may from time to time issue for the guidance of magistrates' courts generally, or of magistrates' courts of any particular class, with regard to the taking of pleas of guilty.

            (2) Any court which is trying any person arraigned before it may convict him of any offence alleged against him in the indictment or charge by reason of any confession of that offence proved to have been made by him, although the confession is not confirmed by any other evidence:

            Provided that the offence has, by competent evidence other than such confession, been proved to have been committed.

[Ch0802s242]242.   Admission in writing before trial of minor offence

            (1) Whenever a public prosecutor causes an accused person to be summoned (otherwise than in terms of subsection (5) of section 307) to appear in a magistrate's court upon a charge of having committed any offence, and he has reasonable grounds for believing that the court which will try the said charge will, on convicting the accused, not impose a sentence of imprisonment or corporal punishment or a fine exceeding P60, he may attach to such summons to be served therewith upon the accused, a form of declaration for signature by the accused, wherein the latter admits having committed the offence, expresses his intention of pleading guilty to the charge, and agrees to be convicted of the offence charged upon his plea of guilty without the calling of any evidence in support of the charge.

            (2) Such form shall contain a notice for the information of the accused that when appearing in court to answer the charge upon which he is summoned he may, in spite of having signed the said declaration, plead not guilty to the charge, and that he will thereupon be tried, upon a future date to be determined by the court, as if he had not signed such declaration, and that such declaration will, at such trial, not be admissible in evidence against him.

            (3) The said form shall also contain a notice for the information of the accused directing his attention to the provisions of section 307 and setting forth the purport of those provisions.

            (4) The person serving such summons shall, if service is upon the accused personally, explain the aforesaid form of declaration to the accused and ascertain from him whether he will or will not sign such declaration, and if the accused signs such declaration the said person shall countersign it and transmit it forthwith to the public prosecutor who caused the summons to be issued.

            (5) If the accused, on appearing in court in answer to the summons, pleads guilty to the charge, the court may deal with him in terms of subsection (1) of section 241 or it may direct that evidence be led to prove the commission of the offence charged.

            (6) If the accused, on appearing in court as aforesaid, pleads not guilty, or if after having pleaded guilty the court directs that evidence be led to prove the commission of the offence, the court shall, at the request of the public prosecutor or of the accused, postpone the trial of the case to such date as it may fix to enable the public prosecutor (and also the accused, if he so desires) to subpoena witnesses.

            (7) If the accused pleaded not guilty as aforesaid, the admission of guilt signed by him shall not be admissible in evidence against him at such trial.

[Ch0802s243]243.   Sufficiency of proof of appointment to a public office

            Any evidence which would, if credible, be deemed in any criminal case depending in the Supreme Court of Judicature in England to be sufficient proof of the appointment of any person to any public office, or of the authority of any person to act as a public officer, shall, if credible be deemed in criminal cases in Botswana, and before any magistrate holding a preparatory examination, sufficient proof of such appointment or authority.

H. DOCUMENTARY EVIDENCE (ss 244-246)

[Ch0802s244]244.   Certified copies or extracts of documents admissible

            Whenever any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, any copy thereof or extract therefrom shall be admissible in evidence in any court or before a magistrate on a preparatory examination, provided it is proved to be an examined copy or extract, or provided it purports to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted; and such officer is hereby required to furnish such certified copy or extract to any person applying at a reasonable time for the same, upon payment of a reasonable sum for the same not exceeding 10 thebe for every 100 words.

[Ch0802s245]245.   Production of official documents

            Any original document in the custody or under the control of any Government officer by virtue of his office shall only be produced in any criminal proceedings before any court, or before a magistrate on a preparatory examination, upon the order of the Director of Public Prosecutions.

[Ch0802s246]246.   Copies of official documents sufficient

            (1) Except when the original is ordered to be produced as provided in section 245, it shall be sufficient to produce a copy of or extract from a document described in that section certified as a true copy by the head of the department in whose custody or under whose control such document is.

            (2) Such copy or extract so certified shall be admissible in evidence before any court or before a magistrate holding a preparatory examination, and shall be of like value and effect as the original document.

            (3) It shall not be necessary for any head of a Government department or office to appear in person to produce any original document in his custody or under his control as such officer, but it shall be sufficient if such document is produced by some person authorized by him to do so. Certified copies or extracts may be handed in to the court by the party who desires to avail himself of the same.

I. SPECIAL PROVISIONS AS TO BANKERS' BOOKS (ss 247-251)

[Ch0802s247]247.   Entries in bankers' books admissible in evidence in certain cases

            The entries in ledgers, day-books, cash-books and other account books of any bank (including a savings bank) shall be admissible as prima facie evidence of the matters, transactions and accounts therein recorded, on proof being given by the affidavit in writing of one of the directors, managers, or officers of such bank, or by other evidence, that such ledgers, day-books, cash-books or other account books are or have been the ordinary books of such bank and that the said entries have been made in the usual and ordinary course of business, and that such books are in or come immediately from the custody or control of such bank.

[Ch0802s248]248.   Examined copies also admissible after due notice

            (1) Copies of all entries in any ledgers, day-books, cash-books or other account books used by any such bank, may be proved in any criminal proceedings as evidence of any such entries, without production of the originals, by means of the affidavit of a person who has examined the same stating the fact of the said examination and that the copies sought to be put in evidence are correct:

            Provided that no ledger, day-book, cash-book or other account book, of any such bank, and no copies of entries therein contained, shall be addressed or received in evidence under this Act unless 10 days' notice in writing, or such other notice as may be ordered by the court or a magistrate holding a preparatory examination, containing a copy of the entries proposed to be adduced, and stating the intention to adduce the same in evidence, has been given by the party proposing to adduce the same in evidence to the other party and that such other party is at liberty to inspect the original entries and the accounts of which such entries form a part.

            (2) On the application of any party who has received such notice the court or a magistrate holding a preparatory examination may order that such party be at liberty to inspect and take copies of any entry or entries in the ledger, day-books, cash-books, or other account books of any such bank relating to the matters in question in the criminal proceedings, and such orders may be made by such court or magistrate in its or his discretion, either with or without summoning before it or him such bank or the other party, and shall be intimated to such bank at least three days before such copies are required.

            (3) On the application of any party who has received notice, the court or a magistrate holding a preparatory examination may order that such entries and copies mentioned in such notice shall not be admissible as evidence of the matters, transactions, and accounts recorded in such ledgers, day-books, cash-books, and other account books.

[Ch0802s249]249.   Bank not compelled to produce any books unless ordered by court or magistrate

            No such bank shall be compelled to produce the ledgers, day-books, cash-books, or other account books of such bank in any criminal proceedings unless the court or the magistrate holding the preparatory examination specially orders that such ledgers, day-books, cash-books or other account books shall be produced.

[Ch0802s250]250.   Inspection of bankers' books by police

            (1) Where, on application made on oath by a policeman, a magistrate or a justice who is not a member of the Botswana Police Force is satisfied that the policeman believes there are reasonable grounds to suppose that the ledgers, day-books, cash-books or other account books or other accounting devices used by a bank (including a savings bank) may afford evidence as to the commission of any offence, the magistrate or justice may issue his warrant authorizing the policeman or policemen named therein-

     (a)     to inspect all those ledgers, day-books, cash-books and other account books and other accounting devices carrying written records and make and retain in his or their possession copies or other record of any entries therein or extracted therefrom; and

     (b)     to have access to all those other accounting devices carrying unwritten records and retrieve therefrom any information and make and retain in his or their possession a written or other record of that information.

            (2) Any person who resists or hinders or aids, incites or encourages any other person to resist or hinder a policeman in executing a warrant issued under this section shall be guilty of an offence and liable to a fine not exceeding P250.

[Ch0802s251]251.   Sections 247, 248 and 249 not to apply to proceedings to which bank is a party

            Nothing contained in sections 247, 248 and 249 shall apply to any criminal proceedings to which any such bank whose ledgers, day-books or other account books may be required to be produced in evidence is a party.

J. PRIVILEGES OF WITNESSES (ss 252-258)

[Ch0802s252]252.   Privileges of accused persons when giving evidence

            An accused person called as a witness upon his own application shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed, or has been convicted of, or has been charged with, any offence, other than that wherewith he is then charged, or is of bad character, unless-

     (a)     he has personally or by his counsel or attorney asked questions of any witness with a view to establishing or has himself given evidence of, his own good character, or unless the nature or conduct of the defence is such as to involve imputation of the character of the prosecutor or the witnesses for the prosecution;

     (b)     he has given evidence against any other person charged with the same offence;

     (c)     the proceedings against him are such as are described in section 264 or 265, and the notice required by those sections has been given to him; or

     (d)     the proof that he has committed or has been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged.

[Ch0802s253]253.   Privilege arising out of the marital state

            (1) A husband shall not be compelled to disclose any communication made to him by his wife during the marriage, and a wife shall not be compelled to disclose any communication made to her by her husband during the marriage.

            (2) A person whose marriage has been dissolved or annulled by a competent court shall not be compelled to give evidence as to any matter or thing which occurred during the subsistence of the marriage or supposed marriage, and as to which he or she could not have been compelled to give evidence if the marriage were subsisting.

[Ch0802s254]254.   No witness compellable to answer question which the witness's husband or wife might decline

            No person shall be compelled to answer any question or to give any evidence, if the question or evidence is such as under the circumstances the husband or wife of such person, if under examination as a witness, might lawfully refuse and could not be compelled to answer or give.

[Ch0802s255]255.   Witness not excused from answering questions by reason that the answer would establish a civil claim against him

            A witness in any criminal proceedings may not refuse to answer a question relevant to the issue, the answering of which has no tendency to accuse himself, or to expose him to penalty or forfeiture of any nature whatsoever, by reason only or on the sole ground that the answering of such question may establish or tend to establish that he owes a debt or is otherwise subject to a civil suit.

[Ch0802s256]256.   Privilege of professional advisers

            No advocate, attorney or other legal practitioner duly qualified to practise in any court, whether within Botswana or elsewhere, shall be competent to give evidence against any person by whom he has been professionally employed or consulted, without the consent of that person, as to any fact, matter or thing, as to which such legal practitioner, by reason of such employment or consultation, and without such consent would not be competent to give evidence in any similar proceeding depending in the Supreme Court of Judicature in England:

            Provided that no such legal practitioner shall, in any proceeding, by reason of any such employment or consultation, be incompetent or not legally compellable to give evidence as to any fact, matter or thing relative to or connected with the commission of any offence for which the person, by whom such legal practitioner has been so employed or consulted, is in such proceeding prosecuted, whenever such fact, matter or thing has come to the knowledge of such legal practitioner before he was professionally employed for or consulted with reference to the defence of such person against such prosecution.

[Ch0802s257]257.   Privilege from disclosure of facts on the grounds of public policy

            No witness shall, except as in this Act is provided, be compellable or permitted to give evidence in any criminal proceeding as to any fact, matter or thing, or as to any communication made to or by such witness, as to which, if the case were depending in the Supreme Court of Judicature in England, such witness would not be compellable or permitted to give evidence, by reason that such fact, matter or thing, or communication, on grounds of public policy and from regard to public interest, ought not to be disclosed and is privileged from disclosure:

            Provided that it shall be competent for any person, in any criminal proceeding, to adduce evidence of any communication alleging the commission of an offence if the making of that communication prima facie constituted an offence, and it shall be competent for the officer presiding at such proceeding to determine whether the making of such communication prima facie did or did not constitute an offence, and such determination shall, for the purposes of those proceedings, be final.

[Ch0802s258]258.   Witness excused from answering questions the answers to which would expose him to penalties, or degrade his character

            No witness in any criminal proceeding shall, except as provided by this Act or any other law, be compelled to answer any question which, if he were under examination in any similar case depending in the Supreme Court of Judicature in England, he would not be compelled to answer by reason that his answer might have a tendency to expose him to any pains, penalty, punishment or forfeiture, or to a criminal charge, or to degrade his character:

            Provided that, anything to the contrary notwithstanding in this section contained, an accused person called as a witness on his own application in accordance with section 217 may be asked any question in cross-examination, notwithstanding that it would tend to incriminate him as to the offence charged against him.

K. SPECIAL RULES OF EVIDENCE IN PARTICULAR CRIMINAL CASES (ss 259-269)

[Ch0802s259]259.   Evidence on charge of treason

            On the trial of a person charged with treason, evidence cannot be admitted of any overt act not alleged in the indictment, unless relevant to prove some overt act alleged therein.

[Ch0802s260]260.   Evidence on a charge of bigamy

            (1) On the trial of a person charged with bigamy, it must be proved that a lawful and binding marriage between the accused and another person existed at the time when the offence is alleged to have been committed:

            Provided that it shall be presumed till the contrary is proved that the marriage between the accused and that other person was at the date of the marriage lawful and binding-

      (i)     in a case where the marriage is alleged to have been solemnized in Botswana, as soon as there has been produced to the court an extract from a marriage register which is either a duplicate, original, or a copy, and which purports to be certified as such by the officer or minister of religion having for the time being the custody of such register, or by an official registrar of marriages;

      (ii)     in a case where the marriage is alleged to have been solemnized outside Botswana, as soon as there has been produced to the court a document which purports to be an extract from a marriage register kept according to law in the country where the marriage is alleged to have been solemnized, and which also purports to be certified as such by an officer or person having the custody of that register:

            Provided that the signature of such officer or person to the certificate is authenticated in accordance with any law or statutory regulations of Botswana governing the authentication of documents executed outside Botswana.

            (2) On the trial of a person charged with bigamy, as soon as the fact of a marriage ceremony in Botswana between the accused and another person has been proved, the marriage shall be deemed to have been lawful and binding as between them at the date thereof until it is shown that they were within the prohibited degrees of consanguinity or affinity, or that owing to a then subsisting marriage one of them was incapable of contracting a lawful and binding marriage with the other.

            (3) On the trial of a person on a charge of bigamy, as soon as the alleged bigamous marriage, wherever solemnized, has been proved, the fact that shortly before the alleged bigamous marriage the accused had been cohabiting with the person to whom the accused is alleged to be lawfully married and had been treating and recognizing such person as a spouse shall, if in addition there be evidence of the performance of a marriage ceremony between the accused and such person, be prima facie evidence that there was a lawful and binding marriage subsisting between the accused and such person at the time of the solemnization of the alleged bigamous marriage.

[Ch0802s261]261.   Evidence of relationship on charge of incest

            (1) On the trial of a person charged with incest-

     (a)     it shall be sufficient to prove that the party on whose person or by whom the offence is alleged to have been committed is reputed to be the grandfather, father, brother, half-brother, son, mother, sister, half-sister or daughter of the other party to the incest;

     (b)     the accused person is, until the contrary is proved, presumed to have had knowledge, at the time of the alleged offence, of the relationship existing between him or her and the other party to the incest.

            (2) Whenever the fact that any lawful and binding marriage was contracted is relevant to the issue at the trial of a person charged with incest, such fact may be proved prima facie in the manner provided in section 260 for the proof of the existence of a lawful and binding marriage of a person charged with bigamy.

[Ch0802s262]262.   Evidence as to counterfeit coin

            When upon the trial of any person it becomes necessary to prove that any coin produced in evidence against him is false or counterfeit, it shall not be necessary to prove it to be false or counterfeit, by the evidence of any officer of a Mint or other person employed in producing the lawful coin in any Commonwealth country or elsewhere whether the coin counterfeited is current coin of any part of such Commonwealth country, or of any foreign country, but it shall be sufficient to prove the same to be false or counterfeit by the evidence of a credible witness.

[Ch0802s263]263.   Evidence of gambling house

            (1) When any cards, dice, balls, counters, tables, or other instruments of gaming used in playing any unlawful game are found in or on any premises suspected to be used as a common gaming house and entered under a warrant or order issued under any law, or about the person of any of those found therein or thereon, it shall be prima facie evidence on a prosecution under any statute for keeping a common gaming house that such premises are used as a common gaming house and that the person found in or on those premises were playing therein or thereon, although no play was actually going on in the presence of the person entering the premises under the warrant or order, or in the presence of those persons by whom he is accompanied.

            (2) In any prosecution under any enactment for keeping a common gaming house it shall be prima facie evidence that those premises are used as a common gaming house-

     (a)     if any policeman authorized to enter upon those premises is wilfully prevented from or obstructed or delayed in entering the same or any part thereof; or

     (b)     if those premises or any part thereof be found fitted or provided with any means or contrivance for unlawful gaming or with any means or contrivance for concealing, removing, or destroying any instruments of gaming.

            (3) On the trial of a person charged with an offence mentioned in this section, it shall not be necessary to prove that any person found on any premises playing at any game was playing for any money, wager or stake.

[Ch0802s264]264.   Evidence on charge of receiving

            (1) When proceedings are taken against any person for having received stolen goods knowing them to be stolen, or for having in his possession stolen property, or anything obtained by means of an offence knowing the same to have been stolen or so obtained, evidence may be given at any stage of the proceedings that there was found in the possession of such person other property stolen or obtained by some such offence as aforesaid within the period of 12 months preceding the time when such person was first charged before a magistrate with the offence in respect of which proceedings are being taken.

            (2) Such evidence may be taken into consideration for the purpose of proving that such person knew the property which forms the subject of the proceedings taken against him to be stolen or obtained by some such offence as aforesaid:

            Provided that not less than three days' notice in writing has been given to the accused that proof is intended to be given of such other property stolen or obtained by some such offence as aforesaid within the preceding period of 12 months having been found in his possession; and such notice shall specify the nature or description of such other property and the person, if known, from whom the same was stolen or obtained by means of an offence.

[Ch0802s265]265.   Evidence of previous conviction on charge of receiving

            When proceedings are taken against any person for having received stolen goods knowing them to be stolen, or for having in his possession stolen property or property obtained by means of an offence, and evidence has been given that the stolen property or property obtained by means of an offence, has been found in his possession, then if such person has, within five years immediately preceding the time when such person was first charged before a magistrate with the offence for which he is being proceeded against, been convicted of an offence involving fraud or dishonesty, evidence of such previous conviction may be given at any stage of the proceedings and may be taken into consideration for the purpose of proving that the accused knew that the property which was proved to be in his possession was stolen or property obtained by means of an offence:

            Provided that not less than three days' notice in writing has been given to the accused that proof is intended to be given of such previous conviction.

[Ch0802s266]266.   Evidence of counterfeit coin

            Upon the trial of any person accused of any offence respecting currency or coin, no difference in the date or year or in any legend marked upon the lawful coin described in the indictment and the date or year or legend marked upon the false coin counterfeited to resemble or pass for such lawful coin, or upon any die, plate, press, tool, or instrument used, constructed, devised, adapted, or designed for the purpose of counterfeiting or imitating any such lawful coin, shall be considered a just or lawful cause or reason for acquitting any such person of such offence; and it shall in any case be sufficient to prove general resemblance to the lawful coin as will show an intention that the counterfeit should pass for it.

[Ch0802s267]267.   Evidence on trial for defamation

            On the trial of a person charged with the unlawful publication of defamatory matter which is contained in a periodical, after evidence sufficient in the opinion of the court has been given of the publication by the accused of the number or part of the periodical containing the matter complained of, other writings or prints purporting to be other numbers or parts of the same periodical previously or subsequently published and containing a printed statement that they were published by or for the accused, shall be admissible in evidence on either side without further proof of their publication.

[Ch0802s268]268.   Evidence on charge of stealing against clerk or servant

            (1) At the trial of any person charged with theft, while employed in any capacity in the public service or by the Government, of money or any other property which belonged to Botswana or which came into such person's possession by virtue of his employment, or charged with theft, while a clerk, servant or agent, of money or any other property which belonged to his employer or principal or which came into his possession on account of his employer or principal, an entry in any book of account kept by the accused or kept under or subject to his charge or supervision, purporting to be an entry of the receipt of any money or other property shall be evidence that the money or other property so purporting to have been received was so received by him.

            (2) On the trial of a person charged with any such offence it shall not be necessary to prove the theft by the accused of any specific sum of money if, on the examination of the books of account or entries kept or made by him or kept or made in, under, or subject to his charge or supervision, or by any other evidence, there is proof of a general deficiency, and if the court be satisfied that the accused stole the deficient money or any part of it.

[Ch0802s269]269.   Evidence on charges relating to seals and stamps

            On the trial of a person charged with any offence relating to any seal or stamp used for the purposes of the public revenue or of the Post Office in any Commonwealth country or in any foreign country, a despatch from a representative of the government of the country affected, transmitting to the President any stamp, mark or impression, and stating it to be a genuine stamp, mark, or impression of a die, plate or other instrument provided, made, or used by or under the direction of the proper authority of the country in question for the purpose of expressing or denoting any stamp duty or postal charge shall be admissible as evidence of the facts stated in the despatch; and the stamp, mark, or impression so transmitted may be used by the court and by witnesses for the purposes of comparison.

L. MISCELLANEOUS MATTERS RELATING TO EVIDENCE
IN CRIMINAL PROCEEDINGS (ss 270-277)

[Ch0802s270]270.   Impounding documents

            Whenever any instrument which has been forged or fraudulently altered is admitted in evidence, the court or judicial officer who admits the instrument may, at the request of the State or of any person against whom it is admitted in evidence, direct that it shall be impounded and kept in the custody of some officer of the court or other proper person, for such period and subject to such conditions as to the court or judicial officer admitting the instrument seems fit.

[Ch0802s271]271.   Unstamped instruments admissible in criminal cases

            Every instrument liable to stamp duty shall be admitted in evidence in any criminal proceedings, although it may not be stamped as required by law.

[Ch0802s272]272.   Onus of proof in prosecutions under laws imposing licences, etc.

            Where a person carries on an occupation or business or performs an act or has in his possession or custody or owns any article or is present at any place and he would commit or have committed an offence by carrying on that occupation or business, or performing that act, or having that article in his possession or custody or owning it, or being present at that place or entering it, if he were not the holder of a licence, permit, permission or other authorization or qualification (hereinafter in this section referred to as the "necessary authorization"), to carry on that occupation or business or to perform that act or to have that article in possession or custody or to own it or to be present at that place or to enter it, he shall, if charged with having committed such offence, be deemed not to have been the holder of the necessary authorization unless the contrary is proved.

[Ch0802s273]273.   Admissions

            (1) In any criminal proceedings the accused or his representative in his presence may admit any fact relevant to the issue, and any such admission shall be sufficient evidence of that fact.

            (2) An admission made by an accused or his representative in his presence at a preparatory examination, which the magistrate presiding thereat noted on the record, may be proved at the subsequent trial of the accused by the production, by any person, of the documents purporting to constitute that record.

[Ch0802s274]274.   Impeachment and support of witness's credibility

            It shall be competent to any party in criminal proceedings to impeach or support the credibility of any witness called against or on behalf of such party in any manner and by any evidence in and by which, if the proceedings were depending before the Supreme Court of Judicature in England, the credibility of such witness might be impeached or supported by such party and in no other manner and by no other evidence whatever:

            Provided that any such party who has called a witness who has given evidence in any such proceedings (whether that witness is or is not, in the opinion of the judicial officer presiding at such proceedings adverse to the party calling him) may, after the said party or the said judicial officer has asked the witness whether he has or has not previously made a statement with which his testimony in the said proceedings is inconsistent, and after sufficient particulars of the alleged previous statement to designate the occasion when it was made, have been mentioned to the witness, prove that he previously made a statement with which his said testimony is inconsistent.

[Ch0802s275]275.   Onus of proof in prosecutions under taxation laws

            When a person is charged with any offence whereof failure to pay any tax or impost to the Government, or failure to furnish any information to any officer of the Government is an element, he shall be deemed to have failed to pay that tax or impost or to furnish that information, unless the contrary is proved.

[Ch0802s276]276.   Cases not provided for by this Part

            In criminal proceedings, in any case not provided for in this Part, the law as to admissibility of evidence and as to the competency, examination, and cross-examination of witnesses in force in criminal proceedings in the Supreme Court of Judicature in England shall be followed in like cases by the courts of Botswana and by magistrates holding preparatory examinations.

[Ch0802s277]277.   Saving as to special provisions in any other law