Criminal Procedure And Evidence - Bail (Ss 104-122) A. After Preparatory Examination Is Concluded (Ss 104-110)

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=1466

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PART IX
Bail (ss 104-122)

A. AFTER PREPARATORY

EXAMINATION IS CONCLUDED (ss 104-110)

[Ch0802s104]104. Bailable offences

Every person committed for trial or sentence in respect

of any offence except treason or murder may be admitted to bail in the

discretion of the magistrate:

Provided that-

(i) the refusal by

the magistrate who has committed any person for trial, to grant such person

bail shall be without prejudice to such person's rights under section 113, and

(ii) the

magistrate may admit to bail a person under the age of 18 committed for trial

on a charge of murder.

[Ch0802s105]105. Verbal application for bail

It shall be competent for the accused at the time

of the commitment to apply verbally to the judicial officer granting the

warrant of commitment, to be liberated on bail.

[Ch0802s106]106. Application for bail after commitment

(1) At any period subsequent to the time of commitment

it shall be competent for the accused to make written application to the

magistrate who granted the warrant of commitment, or to a magistrate having

jurisdiction within the district in which he was committed for trial, or to a

magistrate having jurisdiction within the district in which he is in custody,

unless bail has already been refused by any magistrate. When the commitment is

on a warrant issued by the High Court it shall only be competent to apply for

bail to the High Court.

(2) Every such written application for bail shall

be in a form of a petition and shall be accompanied by a copy of the warrant of

commitment or by affidavit that a copy is denied.

[Ch0802s107]107. Magistrate to determine whether the offence is bailable

(1) Every magistrate to whom an application for

bail is made under section 106 shall within five days thereafter if the offence

is bailable by him, fix the amount of the bail to be given, or after

consideration of such application may, in his discretion, refuse to grant bail.

(2) In determining whether the offence for which

the accused has been committed is bailable or not by him, the magistrate shall,

in the ordinary case, take the charge against the accused as he finds it on the

face of the warrant of commitment.

[Ch0802s108]108. Refusal of bail from the uncertain issue of act committed

In cases where a doubt may arise concerning the

degree and quality of the offence from the uncertain issue in the case of an

injury of which it cannot be foretold whether the person injured will die or

recover, every judicial officer to whom application for bail is made may refuse

to grant the same until all danger to the life of the person injured is at an

end.

[Ch0802s109]109. Conditions of recognizances

(1) The recognizance which is taken on the

admission of an accused person to bail under sections 104 to 108 of this Part

shall be taken by the judicial officer either from the accused alone or from

the accused and one or more sureties in the discretion of the judicial officer

according to the nature and circumstances of the case.

(2) The conditions of the recognizance shall be

that the prisoner shall appear and undergo any further examination which the

magistrate or the Director of Public Prosecutions may consider desirable and

also answer to any indictment that may be presented, or charge that may be

made, against him in any competent court for the offence with which he is

charged at any time within a period of 12 months from the date of the

recognizance; that he will also attend during the hearing of the case and to

receive sentence; and that he will accept service of any summons or warning to

undergo further examination and any such indictment or charge, notice of trial,

and summons thereon and any other notice under this Act at some certain and

convenient place within Botswana chosen by him and expressed therein.

(3) The recognizance shall continue in force

notwithstanding that for any reason, when the trial takes place, no verdict is

then given, unless the indictment or charge is withdrawn.

[Ch0802s110]110. On failure of accused to appear at trial, recognizance to be

forfeited

If upon the day appointed for the hearing of a

case it appears by the return of the proper officer or by other sufficient

proof that a copy of the indictment and notice of trial or, in case of a

remittal to a magistrate's court, the summons or warning has been duly served

or given and the accused does not appear after he has been three times, in or

near the court premises, called by name, the prosecutor may apply to the court

for a warrant for the apprehension of the accused, and may also move the court

that the accused and his sureties (if any) be called upon their recognizance,

and, in default of his appearance, that the same may be then and there declared

forfeited; and any such declaration of forfeiture shall have the effect of a

judgment on the recognizance for the amounts therein named against the accused

and his sureties respectively.

B. IN CASES TRIED BY

MAGISTRATES' COURTS (s 111)

[Ch0802s111]111. Power to admit to bail, nature of bail and provision in case of

default

(1) When a criminal case before a magistrate's

court is adjourned or postponed and the accused remanded, the magistrate may in

his discretion, admit the accused to bail in manner herein provided:

Provided that the accused shall not be remanded

for more than one month if not in custody, or for more than 15 days if in

custody.

(2) When a magistrate decides to admit an accused

person to bail under this section, a recognizance shall be taken from the

accused alone or from the accused and one or more sureties, as the magistrate

may determine, regard being had to the nature and circumstances of the case.

The conditions of the recognizance shall be that the accused shall appear at a

time and place to be specified in writing and as often as and at such intervals

not exceeding one month as may be necessary thereafter within a period of six

months, until final judgment in his case has been given, to answer the charge

of the offence alleged against him or the charge of any other offence which may

appear to the Director of Public Prosecutions or the local public prosecutor to

have been committed by the accused.

(3) The magistrate may further add to the

recognizance any conditions which he may deem necessary or advisable in the

interest of justice as to-

(a) times

and places at which and persons to whom the accused shall present himself;

(b) places

where he is forbidden to go;

(c) prohibition

against communication by the accused with witnesses for the prosecution or any

named person; or

(d) any

other matter relating to his conduct.

(4) If it appears to the magistrate that default

has been made in any condition of a recognizance taken before him or if it

appears to the magistrate before whom an accused person has to appear in terms

of any recognizance entered into before another magistrate that default has

been made in any condition of such recognizance, such magistrate may-

(a) issue

an order declaring the recognizance forfeited, and such order shall have the

effect of a judgment on the recognizance for the amounts therein named and

against the person admitted to bail and his sureties respectively; and

(b) issue a

warrant for the person admitted to bail and afterwards, on being satisfied that

the ends of justice would otherwise be defeated, commit him, when so arrested,

to a gaol until his trial.

C. GENERAL FOR ALL

CRIMINAL CASES (ss 112-122)

[Ch0802s112]112. Excessive bail not to be required

The amount of bail to be taken in any case shall

be in the discretion of the judicial officer to whom the application to be

admitted to bail is made:

Provided that no person shall be required to give

excessive bail.

[Ch0802s113]113. Appeal to High Court against refusal of bail

Whenever an accused person considers himself

aggrieved by the refusal of any magistrate to admit him to bail or by such

magistrate having required excessive bail, he may apply in writing to the judge

of the High Court who shall make such order thereon as to him in the

circumstances of the case seems just.

[Ch0802s114]114. Power of the High Court to admit to bail

Except where otherwise expressly provided the High

Court shall have power, at any stage of any proceedings taken in any court in

respect of an offence, to admit the accused to bail, whether the offence is or

is not one of the offences specifically excepted in section 104.

[Ch0802s115]115. Insufficiency of sureties

If, through mistake, fraud, or otherwise,

insufficient sureties have been accepted or if they afterwards become

insufficient, the judicial officer granting the bail may issue a warrant of

arrest directing that the accused be brought before him and may order him to

find sufficient sureties, and on his failing to do so may commit him to prison.

[Ch0802s116]116. Release of sureties

(1) All or any sureties for the attendance and

appearance of an accused person released on bail may at any time apply to the

judicial officer before whom the recognizance was entered into to discharge the

recognizance either wholly or so far as relates to the applicants.

(2) On such application being made, the judicial

officer shall issue a warrant of arrest directing that the accused be brought

before him.

(3) On the appearance of the accused pursuant to

the warrant or on his voluntary surrender, the judicial officer shall direct

the recognizances to be discharged either wholly or so far as relates to the

applicants and shall call upon the accused to find other sufficient sureties

and, if he fails to do so, may commit him to prison.

[Ch0802s117]117. Render in court

The sureties may bring the accused into the court

at which he is bound to appear during any sitting thereof and then, by leave of

the court, render him in discharge of such recognizance at any time before

sentence, and the accused shall be committed to a gaol there to remain until

discharged by due course of law; but such court may admit the accused person to

bail for his appearance any time it deems meet.

[Ch0802s118]118. Sureties not discharged until sentence or discharge of the accused

The pleading or conviction of any accused person

released on bail as aforesaid shall not discharge the recognizance, but the

same shall be effectual for his appearance during the trial and until sentence

is passed or he is discharged; nevertheless the court may commit the accused to

a gaol upon his trial or may require new or additional sureties for his

appearance for trial or sentence (as the case may be) notwithstanding such

recognizance; and such commitment shall be a discharge of the sureties.

[Ch0802s119]119. Death of surety

When a surety to a recognizance dies before any

forfeiture has been incurred, his estate shall be discharged from all liability

in respect of the recognizance, but the accused may be required to find a new

surety.

[Ch0802s120]120. Person released on bail may be arrested if about to abscond

Whenever an accused person has been released on

bail under any of the provisions of this Part, any judicial officer may, if he

sees fit, upon the application of any peace officer and upon information being

made in writing and upon oath by such officer or by some person on his behalf

that there is reason to believe that the accused is about to abscond for the

purpose of evading justice, issue his warrant for the arrest of the accused,

and afterwards, upon being satisfied that the ends of justice would otherwise

be defeated, commit him, when so arrested, to gaol until his trial.

[Ch0802s121]121. Deposit instead of recognizance

(1) When any person is required by any judicial

officer to enter into recognizances with or without sureties under any of the

provisions of this Act, such judicial officer may, except in the case of a bond

for good behaviour, instead of causing such recognizances to be entered into,

permit him or some person on his behalf to deposit such sum of money as the

judicial officer may fix. Conditions in writing shall be made, in respect of

such a deposit of money, of the same nature as the conditions prescribed by

this Part in respect of recognizances, and all the provisions of this Part

prescribing the circumstances in which recognizances taken from the accused

alone shall be forfeited, his arrest if about to abscond, and remission of

forfeited bail, shall apply mutatis mutandis in respect of any such

deposit of money.

(2) Where the charge against the accused person is

not one of the offences mentioned in subparagraphs (i) and (ii) of paragraph (b)

of section 28 any policeman of or above the rank of Sub-Inspector, may, at a

police station and at such times as no judicial officer is available, admit to

bail an accused person who makes or on whose behalf is made a deposit of such a

sum of money as such police officer may in the particular circumstances fix.

The provisions of subsection (1) as to conditions, forfeiture and remission of

forfeited bail shall mutatis mutandis apply in respect of a deposit of

money made under this subsection.

[Ch0802s122]122. Remission of bail

The President may in his discretion remit any

portion of any amount forfeited under this Part and enforce payment in part

only.