Criminal Procedure And Evidence - Indictments And Summonses (Ss 123-132) A. Indictments In The High Court (Ss 123-124)

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=1467

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PART X
Indictments and Summonses (ss 123-132)

A. INDICTMENTS IN

THE HIGH COURT (ss 123-124)

[Ch0802s123]123. Charge in the High Court to be laid in an indictment

(1) When a person charged with an offence has been

committed for trial or sentence before the High Court, the charge shall be in

writing in a document called an indictment.

(2) When the prosecution is-

(a) at the

public instance, the indictment shall be in the name of, and shall be signed

by, the Director of Public Prosecutions;

(b) a

private one, the indictment shall be in the name of the party at whose instance

it is preferred (who must be described therein with certainty and precision)

and must be signed by such private party or by counsel on his behalf.

(3) It shall not be competent for two or more persons

to prosecute in the same indictment, except in a case where two or more persons

have been injured by the same offence.

(4) The service upon an accused person of any

indictment, together with any notice of trial thereof, shall be made by the

person and in the manner provided by rules of court.

[Ch0802s124]124. When the case is pending

As soon as the indictment in any criminal case

brought in the High Court has been duly lodged with the Registrar of that

Court, such case shall be deemed to be pending in that Court.

B. SUMMONSES AND

CHARGES IN MAGISTRATE'S COURTS (ss 125-127)

[Ch0802s125]125. Lodging of charges in a magistrate's court

Where a public prosecutor has, by virtue of his

office, determined to prosecute any person in a magistrate's court for any

offence within the jurisdiction of that court, he shall forthwith lodge with

the clerk of the court a statement in writing of the charge against that

person, describing him by his name, place of abode and occupation or degree,

and setting forth shortly and distinctly the nature of the offence and the time

and place at which it was committed.

[Ch0802s126]126. Summons in magistrate's court

(1) The clerk of a magistrate's court shall, upon

or after lodging of any charge, at the request of the prosecutor issue and

deliver to the messenger of the court a summons to the person charged to appear

to answer the charge, together with so many copies of the said summons as there

are persons to be summoned.

(2) Except where otherwise specially provided by

any law, the service upon accused persons of any summons or other process in a

criminal case in a magistrate's court shall be made by the prescribed officer,

by delivering it to the accused personally.

(3) If, upon the day appointed for the appearance

of any person to answer any charge, he fails to appear, and the court is satisfied

upon the return of the person required to serve the summons that he was duly

summoned, the court may, at the request of the prosecutor, issue a warrant for

the apprehension of the said person, and may also impose on him for his default

a fine not exceeding P50, or in default of payment of such fine may sentence

him to imprisonment for a term not exceeding three months or may sentence him

to imprisonment without the option of a fine for a term not exceeding one

month. The court may, upon cause shown, remit any fine or imprisonment imposed

under this subsection.

(4) In any case in which the accused is a person

ordinarily resident in Botswana it shall be regarded as a sufficient summons to

attend the court if such accused is duly warned through his Chief, Sub-Chief or

Headman to appear; and proof of such warning shall render the accused liable to

the penalties prescribed in this section in the event of his failure to appear

at the appointed time.

[Ch0802s127]127. Charges in remitted cases

(1) Whenever any case has been remitted by the

Director of Public Prosecutions to be dealt with by a magistrate's court, the

court shall, with all convenient dispatch, cause the accused to be brought

before it.

(2) If the accused has been released on bail, the

court shall cause a notice to be served on him stating that the case has been

remitted to it to be dealt with and requiring him to appear on the day

appointed for the trial. Such notice shall be served in the same manner as a

criminal summons; and if the accused does not so appear, his bail shall be

estreated and he may be apprehended and brought before the court as in the case

of a person who has not appeared upon a criminal summons.

C. INDICTMENTS AND

SUMMONSES (ss 128-132)

[Ch0802s128]128. Offence to be specified in indictment or summons with necessary

particulars

Every indictment or summons shall contain, and

shall be sufficient if it contains, a statement of the specific offence or

offences with which the accused person is charged, together with such

particulars as may be necessary for giving reasonable information as to the

nature of the offence charged.

[Ch0802s129]129. Joinder of counts in an indictment or summons

(1) Different offences may be charged together in

the same indictment or summons if they are founded on the same facts, or form

or are part of a series of offences of the same or a similar character.

(2) Where more than one offence is charged in an

indictment or summons, a description of each offence so charged shall be set

out in a separate paragraph of the indictment or summons called a count.

(3) Where, before trial, or at any stage of a

trial, the court is of opinion that a person accused may be embarrassed in his

defence by reason of being charged with more than one offence in the same

indictment or summons, or that for any other reason it is desirable to direct

that the person be tried separately for any one or more offences charged in an

indictment or summons, the court may order a separate trial of any count or

counts of such indictment or summons.

[Ch0802s130]130. Joinder of two or more accused in one indictment or summons

The following persons may be joined in one

indictment or summons and may be tried together, namely-

(a) persons

accused of the same offence committed in the course of the same transactions;

(b) persons

accused of an offence and persons accused of abetment, or of an attempt to

commit such offence;

(c) persons

accused of more offences than one of the same kind (that is to say, offences

punishable with the same amount of punishment under the same section of the Cap. 08:01 Penal Code or of any other law) committed

by them jointly within a period of 12 months;

(d) persons

accused of different offences committed in the course of the same transaction;

(e) persons

accused of any offence under Division V of Part II of the Penal Code, and

persons accused of receiving or retaining property, possession of which is

alleged to have been transferred by any such offence committed by the

first-named persons, or of abetment of or attempting to commit either of such last

named offences;

(f) persons

accused of any offence relating to counterfeit coin under Division VII of Part

II of the Penal Code, and persons accused of any other offence under the said

Division VII of Part II relating to the same coin, or of abetment of or

attempting to commit any such offence.

[Ch0802s131]131. Rules for the framing of indictments or summonses

The following provisions shall apply to all

indictments and summonses, and, notwithstanding any rule of law or practice, an

indictment or summons shall, subject to the provisions of this Act, not be open

to objection in respect of its form or contents if it is framed in accordance

with the provisions of this Act-

(a) (i) a count of an indictment or summons shall

commence with a statement of the offence charged, called the statement of

offence, and a reference to the section of the law creating the offence;

(ii) the

statement of offence shall describe the offence shortly in ordinary language,

avoiding as far as possible the use of technical terms, and without necessarily

stating all the essential elements of the offence;

(iii) after

the statement of the offence, particulars of such offence shall be set out in

ordinary language, in which the use of technical terms shall not be necessary:

Provided that where any rule of law or any

law limits the particulars of an offence which are required to be given in an

indictment or summons, nothing in this paragraph shall require any more

particulars to be given than those so required;

(iv) the

forms set out in the Third Schedule to this Act or forms conforming thereto as

nearly as may be shall be used in cases to which they are applicable; and in

other cases forms to the like effect or conforming thereto as nearly as may be

shall be used, the statement of offence and the particulars of offence being

varied according to the circumstances of each case;

(v) where

an indictment or summons contains more than one count, the counts shall be

numbered consecutively;

(b) (i) where a law constituting an offence

states the offence to be the doing of or the omission to do any one of any

different acts in the alternative, or the doing of or the omission to do any

act in any one of any different capacities, or with any one of different

intentions, or states any part of the offence in the alternative, the acts,

omissions, capacities or intentions, or other matters stated in the alternative

in the law, may be stated in the alternative in the count charging the offence;

(ii) it

shall not be necessary, in any count charging an offence constituted by a law,

to deny any exception or exemption from, or qualifications to, the operation of

the law creating the offence;

(c) (i) the description of property in an

indictment or summons shall be in ordinary language, and such as to indicate

with reasonable clearness the property referred to, and, if the property is so

described, it shall not be necessary (except when required for the purpose of

describing an offence depending on any special ownership of property or special

value of property) to name the person to whom the property belongs or the value

of the property;

(ii) where

the property is vested in more than one person, and the owners of the property

are referred to in an indictment or summons, it shall be sufficient to describe

the property as owned by one of those persons by name with the others, and, if

the persons owning the property are a body of persons with a collective name,

such as a company or "Inhabitants", "Trustees", "Commissioners"

or "Club" or other such name, it shall be sufficient to use the

collective name without naming any individual;

(iii) property

belonging to, or provided for, the use of any public establishment, service or

department may be described as the property of the State;

(iv) coin, bank notes and currency notes may

be described as money; and any allegation as to money, so far as regards the

description of the property, shall be sustained by proof of any amount of coin

or of any bank or currency note (although the particular species of coin of

which such amount was composed, or the particular nature of the bank or

currency note, is not proved); and in cases of stealing and defrauding by false

pretences, by proof that the accused person dishonestly appropriated or

obtained any coin or any bank or currency note, or any portion of the value

thereof, although such coin or bank or currency note may have been delivered to

him in order that some part of the value thereof should be returned to the

party delivering the same or to any other person and such part has been

returned accordingly;

(d) the

description or designation in an indictment or summons of the accused person,

or of any other person to whom reference is made therein, shall be such as is

reasonably sufficient to identify him, without necessarily stating his correct

name, or his abode, style, degree or occupation, and if, owing to the name of

the person not being known, or for any other reason, it is impracticable to

give such a description, or designation, such description or designation shall

be given as is reasonably practicable in the circumstances or such person may

be described as "a person unknown";

(e) where

it is necessary to refer to any document or instrument in an indictment or

summons, it shall be sufficient to describe it by any name or designation by

which it is usually known, or by the purport thereof, without setting out any

copy thereof;

(f) subject

to any other provisions of this section, it shall be sufficient to describe any

place, time, thing, matter, act or omission whatsoever to which it is necessary

to refer in any indictment or summons in ordinary language in such a manner as

to indicate with reasonable clearness the place, time, thing, matter, act or

omission referred to;

(g) it

shall not be necessary, in stating any intent to defraud, deceive or injure, to

state an intent to defraud, deceive or injure any particular person, where the

law creating the offence does not make an intent to defraud, deceive or injure

a particular person an essential ingredient of the offence;

(h) figures

and abbreviations may be used for expressing anything which is commonly

expressed thereby;

(i) in any

indictment or summons relating to an offence under Division V of Part II of the

Penal Code it shall be sufficient-

(i) to

allege that the thing stated to have been stolen was taken at diverse times

between any two certain days named in the indictment or summons, and, upon such

indictment or summons, proof may be given of the theft of such thing upon any

day or days between the two certain days aforesaid,

(ii) to

charge and proceed against the accused for the amount of a general deficiency,

notwithstanding that such general deficiency is made up of any number of

specific sums of money or of any number of specific articles, the taking of

which extended over any space of time.

[Ch0802s132]132. Amendment of Third Schedule

The Minister may, by order, add to, revoke or vary

any of the forms set out in the Third Schedule.