Criminal Procedure And Evidence - Witnesses And Evidence In Criminal Proceedings (Ss 198-277) A. Securing The Attendance Of Witnesses (Ss 198-209)

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=1471

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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

Nothing contained in this Part shall be construed as modifying those

provisions of any law whereby in any criminal matter specifically referred to

or provided in such law a person is deemed a competent witness, or certain

specified facts and circumstances are deemed to be evidence, or a particular

fact or circumstance may be proved in a manner specified therein.