Criminal Procedure And Evidence - Preparatory Examination (Ss 60-103)

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=1465

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PART VIII
Preparatory Examination (ss 60-103)

[Ch0802s60]60. Persons who may hold preparatory examinations

The term "magistrate", when used in

relation to preparatory examinations, means a Magistrate Grade I or over.

[Ch0802s61]61. Summons to appear at preparatory examination

At the request of a public prosecutor who has

decided to institute a preparatory examination against any person not in

custody, the clerk of the court to which such public prosecutor is attached

shall make out a summons, requiring the said person to appear before such court

for the purpose of undergoing a preparatory examination and shall deliver such

summons to the person who is to serve it in terms of section 62(2).

[Ch0802s62]62. Contents of summons

(1) A summons referred to in section 61 shall be

directed to the accused person, and shall state the nature of the offence which

he is alleged to have committed together with such particulars of the offence

as are sufficient to enable him to know the substance of the charge he has to

meet and shall also state the time and place where he is required to appear.

(2) Every summons shall be served by a person

authorized to serve criminal process in the district in which the accused is

required to appear, or by any other duly authorized person, upon the accused

person to whom it is directed, either by delivering it to him personally, or,

if the accused cannot conveniently be found, by leaving it for him at his place

of business, or most usual or last known place of abode, with some inmate

thereof.

(3) The service of any such summons may be proved

by the testimony upon oath of the person effecting the service, or by his

affidavit or by due return of service under his hand.

(4) Nothing in this section or in section 61 shall

be deemed to abrogate the custom whereby an accused person may be warned

through his Chief, Sub-Chief or Headman to appear before a magistrate's court.

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

of any person for the purpose of undergoing a preparatory examination, he fails

to appear, and the magistrate is satisfied upon the return of service that he

was duly summoned, or is satisfied by evidence upon oath that he was duly

warned, the magistrate 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 P10, or, in default of payment, may sentence him

to imprisonment for a term not exceeding one month. The court may, upon cause

shown, remit any fine or imprisonment imposed under this subsection.

[Ch0802s63]63. Commencement of preparatory examination

(1) When the accused is before a magistrate having

jurisdiction, whether voluntarily or upon summons or after warning or after

being apprehended with or without warrant or while in custody for the offence

of which he is accused or any other offence, the local public prosecutor or

other person charged with the prosecution of criminal cases shall institute a

preparatory examination before the magistrate, and the magistrate shall proceed

in the manner hereinafter described to inquire into the matters charged against

the accused.

(2) Before proceeding to inquire into the matter

charged against the accused, the magistrate shall read and explain the charge

to the accused and the procedure on a preparatory examination shall be made

clear to him but he shall not be required to make any statement in reply to the

charge: this same procedure shall be followed in the case of any person

subsequently joined as an accused.

(3) At any stage after the commencement of a

preparatory examination any person suspected of having committed or of having

taken part in the commission of the offence in respect of which the preparatory

examination was instituted may be joined with the accused, and thereupon the

preparatory examination of the accused and such person shall proceed jointly:

Provided that the evidence given by every witness

before such joinder shall be read over to such person, and if he or his

representative requests the magistrate holding the preparatory examination to

recall any such witness for the purpose of being cross-examined, the magistrate

shall recall him and if necessary shall direct that he be subpoenaed to

reappear before him, for the purpose of being cross-examined by the said person

or his representative, and re-examined by the public prosecutor.

[Ch0802s64]64. Irregularities not to affect the proceedings

No irregularity or defect in the substance or form

of the summons or warrant or in the manner of arrest, and no variance between

the charge contained in the summons or warrant and the evidence adduced on the

part of the prosecution at the inquiry, shall affect the validity of any

criminal proceedings at or subsequent to the hearing.

[Ch0802s65]65. Clerk of the court to subpoena witness

(1) A public prosecutor who has decided to

institute or has instituted a preparatory examination, or an accused against

whom a preparatory examination is being or is to be held (or the latter's

representative), may compel the attendance of any person at such preparatory

examination to give evidence, or to produce any book or document, by means of a

subpoena, issued at the instance of the public prosecutor or accused, as the

case may be, by the clerk of the court of the district in which the preparatory

examination is being or is to be held.

(2) If a magistrate holding a preparatory

examination believes that any person may be able to give evidence or to produce

any book or document which is relevant to the subject of the examination, he

may direct the clerk of the court to issue, in the manner aforesaid, a subpoena

requiring such person to appear before him at a time and place mentioned

therein to give evidence or to produce any book or document.

(3) Any such subpoena shall be served in the

manner prescribed by the rules of court upon the person to whom it is

addressed.

(4) A magistrate holding a preparatory examination

may call as a witness any person in attendance, although not subpoenaed as a witness,

or may re-call and re-examine any person already examined as a witness.

(5) Every person subpoenaed to attend a

preparatory examination shall obey the subpoena and remain in attendance

throughout the examination unless excused by the magistrate holding the

examination.

(6) Nothing in this section shall be deemed to

abrogate the custom whereby a witness may be warned through his Chief,

Sub-Chief or Headman to attend before a magistrate's court.

[Ch0802s66]66. Arrest and punishment for failure to obey subpoena or to remain

in attendance

(1) If any person subpoenaed or warned to attend a

preparatory examination fails without reasonable excuse to obey the subpoena or

warning, and it appears from the return or from evidence given under oath that

the subpoena was served upon or warning given to the person to whom it is

directed or that he is evading service or warning, or if any person who

attended in obedience to a subpoena or warning has failed to remain in

attendance, the magistrate holding the preparatory examination may issue a

warrant, directing that he be arrested and brought, at a time and place stated

in the warrant, or as soon thereafter as possible, before such magistrate or

any other magistrate.

(2) Such warrant may be executed anywhere within

the area of jurisdiction of the magistrate who issued it, and if the person to

be arrested thereunder is outside the area, the provisions of section 38 shall mutatis

mutandis apply in regard thereto.

(3) When the person in question has been arrested

under the said warrant he may be detained thereunder before the magistrate who

issued it or in any gaol or lock-up or other place of detention or in the

custody of the person who is in charge of him, with a view to securing his

presence as a witness at the preparatory examination:

Provided that the magistrate holding that

examination may release him on a recognizance with or without sureties for his

appearance to give evidence as required, and for his appearance at the inquiry

mentioned in subsection (4).

(4) The magistrate may in a summary manner inquire

into the said person's failure to obey the subpoena or warning or to remain in

attendance, and unless it is proved that the said person had a reasonable

excuse for such failure, the magistrate may sentence him to pay a fine not

exceeding P50 or to imprisonment without the option of a fine for a term not

exceeding one month.

(5) Such sentence shall be enforced and shall be

subject to an appeal as if it were a sentence in a criminal case imposed by a

magistrate's court of the district in which it was imposed.

(6) If a person who has entered into any

recognizance for his appearance to give evidence at a preparatory examination

or for his appearance at an inquiry referred to in subsection (4) fails so to

appear, he may, apart from the estreatment of his recognizance, be dealt with

as if he had failed to obey a subpoena or warning to attend a preparatory

examination.

[Ch0802s67]67. Tender of witness's expenses not necessary

No repayment or tender of expenses shall be

necessary in the case of a person who is required to give evidence at a

preparatory examination, and who is also within five kilometres of the premises

in which such examination is being held.

[Ch0802s68]68. Witness refusing to be examined or to produce document may be

committed

(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 magistrate to give evidence at a preparatory

examination, 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 magistrate may adjourn the

proceedings for any period not exceeding eight clear days and may, in the

meantime, by warrant commit the person so refusing to gaol unless he sooner

consents to do what is required of him. If such person upon being brought up

upon the adjourned hearing again refuses to do what is required of him, the

magistrate may, if he sees fit, again adjourn the proceedings, and by order

commit him for a like period, and so again from time to time until such person

consents to do what is required of him. An appeal shall lie from any such order

of committal to the High Court and the High Court may make such order on the

appeal as to it seems just.

(2) Nothing in this section shall prevent the

magistrate from committing the accused for trial or otherwise disposing of the

proceedings in the meantime according to any other sufficient evidence taken by

him.

(3) No person shall be bound to produce at a

preparatory examination any document or thing not specified or otherwise

sufficiently described in the subpoena or of which he has not had adequate

warning, unless he actually has it with him.

[Ch0802s69]69. Procedure where trial in magistrate's court has been turned into

a preparatory examination

Whenever any magistrate's court has stopped the

summary trial of an accused person under the powers conferred by the law

governing such court, and the proceedings have thereupon become those of a

preparatory examination, it shall not be necessary for the magistrate to recall

any witness who has already given evidence at the trial, but the magistrate's

record of evidence so given certified by him to be correct shall, for all

purposes whatsoever, have the same force and effect and shall be receivable in

evidence in the same circumstances as the depositions made in the course of a

preparatory examination in the manner provided in section 70:

Provided that as often as it appears to the

magistrate himself or it is made to appear to him either by the prosecutor or

by the accused that the ends of justice might be served by having a witness

already examined recalled for further examination, then such witness shall be

summoned and examined accordingly. The examination so taken shall be recorded

in the manner hereinafter directed as to other examinations.

[Ch0802s70]70. Evidence on oath at preparatory examination

(1) All preparatory examinations shall, except

when an oath is by law dispensed with, be taken upon oath, or by affirmation

where such is allowed by law, and every witness, before giving his evidence,

shall make oath or affirmation (as the case may be) before the magistrate by

whom he is to be examined, that in the whole of his deposition he will tell the

truth, the whole truth, and nothing but the truth, and each witness shall be

examined apart from the others.

(2) Subject to the proviso to subsection (3) of

section 63 and to sections 100 and 101 the evidence given by a witness at a

preparatory examination shall be given in the presence of the accused, shall be

taken down in writing, and shall be read over to the witness who gave it. If

such evidence was taken down in shorthand writing, any document purporting to

be a transcript of the shorthand record of the said evidence, and purporting to

have been certified as correct under the hand of the person who took such

evidence down, shall prima facie be equivalent to the shorthand record.

(3) The accused or his representative may

cross-examine any such witness and thereupon the public prosecutor may

re-examine him.

(4) Any evidence given under section 101 in the

absence of the accused may be read over to him at the preparatory examination

and shall be deemed to have been given at the examination, and thereupon the

proviso to subsection (3) of section 63 shall apply.

(5) If a preparatory examination is held on a

charge that the accused committed or attempted to commit any indecent act

towards another person or committed or attempted to commit any act for the

purpose of procuring or furthering the commission of an indecent act towards or

in connection with any other person, or that the accused committed or attempted

to commit extortion or a statutory offence of demanding from any person some

advantage which was not due and, by inspiring fear in such person's mind, compelling

him to render such advantage, no person shall at any time publish by radio or

in any document produced by printing or any other method of multiplication any

information relating to the said preparatory examination or any information

disclosed thereat, unless the magistrate holding the preparatory examination

has, after having consulted the person against or in connection with whom the

offence charged is alleged to have been committed (or if he is a minor, his

guardian), consented in writing to such publication.

(6) Any person contravening subsection (5) shall

be guilty of an offence and liable to a fine not exceeding P100 or to

imprisonment for a term not exceeding three months, or to both.

[Ch0802s71]71. Recognizance of witness to appear at trial

(1) Every magistrate before whom any preparatory

examination is taken may lawfully require any witness, either alone or together

with one or more sufficient sureties to the satisfaction of the magistrate to

enter into a recognizance under the condition that the witness shall at any

time within 12 months from the date thereof, upon being served with a subpoena

or upon being warned at some certain place within Botswana to be selected by

the witness, appear and give evidence at the trial of the person in respect of

whom the preparatory examination was taken.

(2) Every recognizance so entered into shall

specify the full name 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 it is, and whether he is the owner of such place of

residence or a 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.

[Ch0802s72]72. Absconding witness may be arrested

Whenever any person is bound by recognizance to

give evidence or is likely to give material evidence in respect of any offence,

any judicial officer before whom the offence is triable may, if he sees fit

upon information being made in writing and on oath that such person is about to

abscond or has absconded, issue his warrant for the arrest of such person. If

such person is arrested any judicial officer aforesaid may, if satisfied that

the ends of justice would otherwise be defeated, commit such person to a gaol

until the time at which he is required to give evidence, unless in the meantime

he produces sufficient sureties; but any person so arrested shall be entitled

on demand to receive a copy of the information upon which the warrant for his

arrest was issued.

[Ch0802s73]73. Witness refusing to enter into recognizance

Any witness who refuses to enter into any such

recognizance as aforesaid may, by warrant, be committed by the magistrate

holding the examination to a gaol, there to be kept 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.

[Ch0802s74]74. Provisions as to taking statement or evidence of accused person

(1) If, after the conclusion of the evidence in

support of the charge, the magistrate considers that on the evidence as it

stands there are sufficient grounds for committing the accused for trial, he shall

frame a charge under his hand declaring with what offence or offences the

accused is charged and shall read the charge to the accused person and explain

the nature thereof to him in simple language, and address to him the following

words, or words to the like effect:

"This is not your trial but, subject

to the power of the Director of Public Prosecutions to remit this case for

trial to a magistrate's court, you will be tried later in another court before

a judge, where all the witnesses you have heard here will be produced and you

will be allowed to question them. You will then be able to make any statement

you may wish or to give evidence on oath and call any witnesses on your own

behalf. Unless you wish to reserve your defence, which you are at liberty to

do, you may now either make a statement not on oath or give evidence on oath,

and may call witnesses on your behalf. If you give evidence on oath you will be

liable to cross-examination. Anything you may say whether on oath or not will

be taken down and may be used in evidence at your trial.

I must also give you clearly to understand

that you have nothing to hope from any promise of favour and nothing to fear

from any threat which may have been held out to you to induce you to make any

admission or confession of your guilt, and that whatever you now say may be

given in evidence at your trial notwithstanding any such promise or

threat."

(2) Immediately after complying with the

requirements of subsection (1), the magistrate shall ask the accused if he

wishes to say anything either by way of statement or evidence and everything

which the accused person says, either by way of statement or evidence shall be

recorded in full and shall be shown or read over to him, and he shall be at

liberty to explain or add to anything contained in the record thereof and the

magistrate shall record such explanation or addition and show or read it over

to him. The statement or evidence as agreed by the accused person shall then be

attested by the magistrate who shall certify that such statement or evidence

was taken in his presence and hearing and contains accurately the whole

statement made, or evidence given, as the case may be, by the accused person.

The accused person shall be called on by the magistrate to sign or attest by

his mark such record. If he refuses, the magistrate shall add a note of such

refusal, and the record may be used as if he had signed or attested it. If an

interpreter has been used in the recording of the statement or evidence, the

interpreter shall also sign the record.

[Ch0802s75]75. Evidence and address in defence

(1) Immediately after complying with the

requirements of section 74 relating to the statement or evidence of the accused

person, and whether the accused person has or has not made a statement or given

evidence, the magistrate shall ask him whether he desires to call witnesses on

his own behalf.

(2) The magistrate shall take the evidence of any

witnesses called by the accused person in like manner as in the case of the witnesses

for the prosecution, and every such witness, not being merely a witness to the

character of the accused person, shall, if the magistrate is of opinion that

his evidence is in any way material to the case, be bound by recognizance to

appear and give evidence at the trial of the accused person.

(3) If the accused person states that he has

witnesses to call but that they are not present in court and the magistrate is

satisfied that the absence of such witnesses is not due to any fault or neglect

of the accused person, and that there is a likelihood that they could, if

present give material evidence on behalf of the accused person, the magistrate

may adjourn the examination and issue process or take other steps to compel the

attendance of such witnesses and, on their attendance, shall take their

depositions and bind them by recognizance in the same manner as witnesses under

subsection (2).

(4) In any preparatory examination under this Part

the accused person or his legal representative shall be at liberty to address

the magistrate-

(a) after

the examination of the witnesses called on behalf of the prosecution;

(b) if no

witnesses for the defence are to be called, immediately after the statement or

evidence of the accused person;

(c) if the

accused person elects-

(i) to

give evidence or to make a statement and witnesses for the defence are to be

called; or

(ii) not

to give evidence or to make a statement but to call witnesses,

immediately after the evidence of such

witnesses.

(5) If the accused person or his legal

representative addresses the magistrate in accordance with the provisions of

paragraph (a) or (b) of subsection (4), the prosecution shall

have the right of reply.

(6) Where the accused person reserves his defence,

or at the conclusion of any statement in answer to the charge, or evidence, as

the case may be, the magistrate shall ask him whether he intends to call

witnesses at the trial, other than those, if any, whose evidence has been taken

under the provisions of this section, and, if so, whether he desires to give

their names and addresses so that they may be summoned. The magistrate shall

thereupon record the names and addresses of any such witnesses whom the accused

person may mention.

[Ch0802s76]76. Saving as to further evidence and admissions

Nothing in section 75 shall-

(a) prevent

the magistrate receiving further evidence for the prosecution after hearing any

evidence given on behalf of the accused, or re-opening the examination;

(b) prevent

the prosecution from giving in evidence any admission or confession or other

statement made or any evidence given by the accused which under this Act would

be admissible at his trial.

[Ch0802s77]77. Discharge of accused person

(1) If, at the close of the case for the

prosecution or after hearing any evidence in defence, the magistrate considers

that the evidence against the accused person is not sufficient to put him on

his trial, the magistrate shall forthwith order him to be discharged as to the

particular charge under inquiry; but such discharge shall not be a bar to any

subsequent charge in respect of the same facts nor derogate from the

Attorney-General's powers under section 81:

Provided always that nothing contained in this

section shall prevent the magistrate from either forthwith, or after such

adjournment of the examination as may seem expedient in the interests of

justice, proceeding to investigate any other charge upon which the accused

person may have been summoned or otherwise brought before it, or which in the

course of the charge so dismissed as aforesaid, it may appear that the accused

person has committed.

(2) The magistrate, in determining whether he will

or will not commit an accused person for trial, shall take into consideration

the statement of the accused person and any evidence given by him or his

witnesses.

(3) Where there is a conflict of evidence, the

magistrate shall consider the evidence to be sufficient to commit the accused

person for trial if the evidence against the accused person is such as, if

uncontradicted, would raise a presumption of his guilt.

[Ch0802s78]78. Committal for trial

If the magistrate considers the evidence

sufficient to put the accused person on his trial, he shall commit him for

trial to the High Court in accordance with the provisions of section 82.

[Ch0802s79]79. Binding over of witnesses conditionally

(1) Where any person is committed by a magistrate

for trial by the High Court and the magistrate is satisfied after taking into

account anything which may be said with reference thereto by the accused or the

prosecutor, that the attendance at the trial of any witness who has been

examined before him is unnecessary, by reason of anything contained in any

statement by the accused person, or of the evidence of the witness being merely

of a formal nature, the magistrate shall, if the witness has not already been

bound over, bind him over to attend the trial conditionally upon notice given

to him and not otherwise, or shall, if the witness has already been bound over,

direct that he shall be treated as having been bound over to attend only

conditionally as aforesaid, and shall transmit to the High Court a statement in

writing of the names, addresses and occupations of the witnesses who are, or

who are to be treated as having been, bound over to attend the trial

conditionally.

(2) Where a witness has been, or is to be treated

as having been bound over conditionally to attend the trial, the Director of

Public Prosecutions or the person committed for trial may give notice, at any

time before the opening of the Sessions of the High Court, to the committing

magistrate, and, at any time thereafter, to the Registrar of the High Court,

that he desires the witness to attend at the trial, and any such magistrate or

Registrar to whom any such notice is given shall forthwith notify the witness

that he is required so to attend in pursuance of his recognizance.

(3) The magistrate shall, on committing the

accused person for trial, inform him of his right to require the attendance at

the trial of any such witness as aforesaid, and of the steps which he must take

for the purpose of enforcing such attendance.

(4) Any documents or articles produced in evidence

before the magistrate by any witness whose attendance at the trial is stated to

be unnecessary, in accordance with the provisions of this section and marked as

exhibits shall, unless, in any particular case, the magistrate otherwise

orders, be retained by the court and forwarded with the depositions to the

Registrar of the High Court.

[Ch0802s80]80. Admission of previous convictions by accused at conclusion of

preparatory examination

(1) As soon as the preparatory examination has

been concluded, the prosecutor shall, if he has information or reasonable

grounds for believing that the accused has previously been convicted of any

offence, transmit direct to the Registrar of the High Court for transmission to

the Director of Public Prosecutions particulars of the alleged previous

conviction.

(2) If the Director of Public Prosecutions

determines under the provisions of section 94 to indict the accused for trial

in the High Court, for an offence disclosed by the evidence taken at the

preparatory examination, he may direct any magistrate to re-open the

preparatory examination for the purpose of ascertaining whether the accused

admits that he was previously convicted as aforesaid.

(3) Such magistrate shall, in accordance with the

Attorney-General's directions of the Director of Public Prosecutions, re-open

the preparatory examination, and shall inform the accused of the particulars of

the alleged previous conviction and shall call upon him to admit or deny that

he was so previously convicted. If the accused admits that he was so previously

convicted, his admission shall be reduced to writing and signed by him if he is

willing to sign it, and shall in any case also be signed by such magistrate.

(4) No person except such magistrate, the public

prosecutor, the accused, his legal adviser, the court interpreter and the

necessary escort of the accused shall be present at any proceedings taken by

such magistrate under subsection (3).

(5) Copies of any admission or denial by the

accused made under this section shall be transmitted as soon as possible to the

Registrar of the High Court for transmission to the Director of Public

Prosecutions.

(6) Due care shall be taken by every officer that

no information relative to any alleged previous conviction of the accused is

disclosed to any person, except as provided by this section, until evidence of

such previous conviction is tendered as provided in Part XVI.

[Ch0802s81]81. Powers of Director of Public Prosecutions on discharge of

accused

(1) Where a magistrate has discharged an accused

under section 77, any recognizances taken in respect of the charge shall become

void unless, within 28 days, the Director of Public Prosecutions as hereinafter

provided orders that the accused be committed for trial or that a further

examination shall take place.

(2) Notwithstanding that the accused has, after a

preparatory examination, been so discharged, a warrant for his arrest may upon

information on oath (other than that recorded at his examination), be issued on

the specific instructions of the Director of Public Prosecutions by a person

empowered under Part VI to issue warrants of arrest; and upon his being brought

before a magistrate, the preparatory examination shall be re-opened in accordance

with such instruction as the Director of Public Prosecutions may give.

[Ch0802s82]82. Committal of accused for trial

(1) Where it appears to the magistrate that a

sufficient case has been made out against the accused to justify his committal

for trial for any offence, the magistrate shall commit the accused for trial to

the High Court on a charge to be specified in his record of the proceedings and

shall either release him on bail where authorized by law, or commit him to

gaol, there to be detained until brought to trial or until admitted to bail or

liberated in due course of law. If committed to gaol the warrant of committal

shall clearly express the offence for which the accused is committed for trial.

(2) A magistrate may make an order of committal or

discharge although part of the examination has been taken by another magistrate

and he has not been present during the whole time during which the examination

has been taken.

[Ch0802s83]83. Proceedings on admission of guilt

(1) Except when the charge is one of treason or

murder, if the accused when questioned, as is provided by section 74, states

that he is guilty of the charge, then the magistrate shall further say to him

the words following or words to the like effect: "Do you wish the

witnesses again to appear to give evidence against you at your trial? If you do

not, you will now be committed for sentence instead of being committed for

trial."

(2) If the accused in answer to such a question

states that he does not wish the witnesses again to appear to give evidence

against him, his statement shall be taken down in writing and read to him and

shall be signed by the magistrate and by the accused, and shall be kept with

the depositions of the witnesses and sent to the Registrar of the High Court

for transmission to the Director of Public Prosecutions.

(3) In any such case as is mentioned in subsection

(2) the magistrate shall, instead of committing the accused for trial, order

him to be committed for sentence before the High Court, and in the meantime the

magistrate shall by his warrant commit him to a gaol to be there safely kept

until the sitting of such court or until he is admitted to bail or liberated in

due course of law.

[Ch0802s84]84. Committal by magistrate where offence committed outside district

Where any person charged with any offence has been

summoned or warned or arrested and brought before the court of a district other

than that in which such offence is alleged to have been committed and where a

magistrate of such court sees cause to commit such person for examination, such

magistrate may issue a warrant to commit such person to a gaol in the district

in which the offence is alleged to have been committed or to a gaol in the

district within which such court is situate or to any other gaol.

[Ch0802s85]85. Removal of accused from gaol of one district to that of another

A magistrate of any district shall, on application

to that effect signed by the Director of Public Prosecutions, issue a warrant

for the removal of any accused person detained on a criminal charge under any

legal warrant within the gaol of that district to the gaol of any other

district specified in the application for detention therein for further examination,

trial or sentence or until liberated or removed therefrom in due course of law.

[Ch0802s86]86. Committal for further examination

(1) The magistrate holding a preparatory

examination may adjourn such examination, if necessary, from time to time for

periods not exceeding 15 days if the accused is remanded in custody and not

exceeding one month if the accused is not remanded in custody.

(2) Every warrant of commitment for further

examination shall specify the time when the accused is again to be brought

before the magistrate for examination:

Provided that the magistrate may, with the consent

of the accused, proceed with the examination before the expiration of the

period mentioned in the warrant.

[Ch0802s87]87. When offence committed on the boundaries of districts or on a

journey

(1) When an offence is committed on the boundary

or boundaries of two or more districts, or within the distance of four

kilometres beyond any such boundary or boundaries, the preparatory examination

may be held in any of the said districts.

(2) When an offence is committed in or upon any

vehicle employed on any journey in Botswana the preparatory examination may be

held in any district through any part whereof or on or within the distance of

four kilometres beyond the boundary whereof such vehicle has passed in the

course of the journey during which the offence was committed.

(3) Where an offence is committed upon any railway

train, the preparatory examination may be held in any district in or through

any part whereof such railway train passes.

[Ch0802s88]88. Districts in which preparatory examination may be held

(1) Where the accused is charged with committing

any offence the preparatory examination may be held in any district within

which the offence was committed or within which any act or omission or event

which is an element of the offence has taken place or in which the accused was

arrested or is in custody.

(2) Where the accused is charged with theft, or

with obtaining by any offence any property, the preparatory examination may be

held in any district within which any part of the property so stolen or obtained

by any such offence is found in his possession.

(3) Where the accused is charged with an offence

which involves the receiving of any property by him, the preparatory

examination may be held in any district within which he has any part of the

property in his possession.

(4) Where the facts show that an accused person

charged with an offence counselled or procured the commission thereof, or after

the commission thereof harboured or assisted the offender, the preparatory

examination may be held in any district within which the preparatory

examination in the case of the principal offender might be held.

(5) Where the accused is charged with kidnapping,

child-stealing or abduction, the preparatory examination may be held in the

district in which the kidnapping, child-stealing or abduction took place or in

any district through or in which he conveyed or concealed or detained the

person kidnapped, stolen or abducted.

(6) In special cases not falling within any of the

preceding provisions the Director of Public Prosecutions may authorize the

preparatory examination to be held in any other district.

(7) In case of any doubt or dispute as to the

district in which the preparatory examination should be held or of any

objection on the part of the accused to the holding of such examination in any

particular district, or where more than one offence is alleged to have been

committed by the accused but in different districts, the matter shall be

referred to the Director of Public Prosecutions, who may direct in which

district a preparatory examination or preparatory examinations shall be held,

and his direction shall be conclusive and not subject to appeal to any court.

[Ch0802s89]89. Discretionary powers of the magistrate

A magistrate holding a preparatory examination

may-

(a) change

the place of hearing of the examination to any other place within his

jurisdiction if, through the inability, from illness or other cause, of the

accused or a witness to attend at a place where the magistrate usually sits, or

if, from any other reasonable cause, it appears desirable to do so, and may

adjourn the examination for that purpose;

(b) if it

appears to him to be in the interest of good order or public morals or of the

administration of justice, direct that the preparatory examination shall be

held within closed doors or that (with such exceptions as he may direct)

females or minors or the public generally or any class thereof shall not be

permitted to be present thereat, and if a preparatory examination is to be held

or is being held on a charge referred to in subsection (5) of section 70 the

magistrate may, at the request of the person against or in connection with whom

the offence charged is alleged to have been committed (or if he is a minor, at

the request of that person or of his guardian) whether made in writing before

the commencement of the preparatory examination, or orally at any time during

the preparatory examination, direct that every person whose presence is not

necessary in connection with the preparatory examination or any person or class

of persons mentioned in the request shall not be allowed to be present thereat;

(c) regulate

the course of the examination in any way which may appear to him desirable and

which is not inconsistent with the provisions of this Act or of any other law;

(d) (i) if it appears in the course of the

examination that the magistrate's court of the district in which the

examination is held has jurisdiction to deal summarily with the offence which

is the subject of the examination, or

(ii) if

the offence which is the subject of the examination is not an offence with

which the said court has jurisdiction to deal summarily, and the prosecutor

substitutes a charge of an offence in respect of which the said court has such

jurisdiction,

and if, in either case, it appears to such

magistrate that it is desirable to try the accused summarily, stop the

examination and, with the consent of the prosecutor place the accused on trial

for such offence before the said court presided over by the said magistrate,

and the evidence already taken at the examination shall thereupon be deemed to

have been recorded as evidence at such trial; and either the prosecutor or the

accused may require any person who has given evidence at the examination to be

recalled for further examination; and if the accused so requests, any evidence

already taken at the examination shall be read to him.

[Ch0802s90]90. Bail before conclusion of examination in magistrate's discretion

(1) Until the warrant for commitment for trial or

sentence is made out no prisoner can insist on being admitted to bail; but

except when the trial is treason or murder, it shall be in the discretion of

the magistrate to admit an accused person to bail before the preparatory

examination is concluded.

(2) If the accused person, when admitted to bail

before the preparatory examination is concluded, does not appear at the time

and place mentioned in the recognizance, the magistrate may declare the

recognizance forfeited, adjourn the examination, and issue a warrant for his

apprehension as hereinbefore provided.

[Ch0802s91]91. Prosecutor or magistrate conducting preparatory examination to

make local inspection and to cause post mortem and other examinations to be

made

The person charged with the prosecution or the

magistrate who conducts the preparatory examination shall make or cause to be

made any local inspections which the particular circumstances of the case may

render necessary; and, in cases of homicide or of serious injury to the person

of any individual, shall cause the dead body or the person injured to be

examined by a duly registered medical practitioner, if such can be procured,

and if not, then by the best qualified person or persons obtainable. Such

practitioner or person (as the case may be) shall draw up and subscribe a

written statement of the appearances and facts observed on such examination.

[Ch0802s92]92. All articles to be used in evidence on the trial to be labelled

for identification and to be kept in safe custody

The magistrate conducting the preparatory

examination shall cause all documents and any other articles whatsoever,

exhibited by the witnesses in the course of the preparatory examination and

likely to be used in evidence on the accused's trial, to be inventoried and

labelled or otherwise marked, in the presence of the person producing the same,

so that they may be capable of being identified at the accused's trial, and

shall cause all such documents and articles to be kept in safe custody until

the trial so that they may then be produced.

[Ch0802s93]93. Records of preparatory examination to be sent to the Director of

Public Prosecutions

The magistrate shall, as soon as possible after

the conclusion of a preparatory examination held by him, transmit a copy of the

record thereof to the Registrar of the High Court for transmission to the

Director of Public Prosecutions for his consideration. If the prosecution is by

a private party the Director of Public Prosecutions shall, if he declines to

prosecute at the public instance, transmit such copy to that private party

together with such a certificate as is mentioned in section 18.

[Ch0802s94]94. Powers of Director of Public Prosecutions

(1) After considering the preparatory examination

transmitted to him as aforesaid the Director of Public Prosecutions may-

(a) decline

to prosecute the accused and shall thereupon cause his decision to be

transmitted to a magistrate, who, if the accused is in custody, shall cause him

to be liberated forthwith, or, if he is not in custody, shall inform him of the

decision of the Director of Public Prosecutions;

(b) if a

magistrate has committed the accused for trial or sentence, indict the accused

for trial before the High Court on a charge of any offence disclosed by the

evidence taken at the preparatory examination and shall inform the magistrate

accordingly;

(c) even if

a magistrate has discharged the accused, indict the accused for trial before

the High Court on a charge of any offence disclosed by the evidence taken at

the preparatory examination and direct a magistrate so to commit the accused

for trial if, in the Attorney-General's opinion of the Director of Public

Prosecutions, the accused ought to have been so committed, or he may remit the

case under paragraph (d), and in either such case the Director of Public

Prosecutions may order a magistrate to issue a warrant for the re-arrest of the

accused if he has been discharged from custody, or direct that the recognizance

shall remain in operation if the accused has been admitted to bail, or give

such other directions in respect of further proceedings against the accused as

the Director of Public Prosecutions may think right and determine;

(d) unless

the offence to be charged is murder or treason, remit the case to be dealt with

under its ordinary jurisdiction by the magistrate's court of the district in

which the preparatory examination was held;

(e) unless

the offence to be charged is murder or treason, remit the case to be dealt with

by the magistrate's court of such district under any increased jurisdiction

conferred upon such court by law governing magistrates' courts or by any other

law;

(f) in any

case in which a person has been committed for sentence under section 83, unless

the offence to be charged is murder or treason, remit the case to be dealt with

by the magistrate's court of such district, either under its ordinary

jurisdiction or under any increased jurisdiction conferred upon such court by

any law governing magistrates' courts or by any other law;

(g) direct

the magistrate to re-open the preparatory examination and take further evidence

generally or in respect of any particular matter; or

(h) take

such measures and give such directions for the trial of the prisoner before a

competent court as he may deem most expedient.

(2) The Director of Public Prosecutions in

remitting any case to a magistrate's court shall state specifically whether he

remits the case under paragraph (d), (e) or (f) of

subsection (1) and shall also state specifically whether he remits the case to

be dealt with under the ordinary jurisdiction of the magistrate's court or

under any increased jurisdiction aforesaid.

[Ch0802s95]95. How remitted cases to be dealt with

Any case remitted to a magistrate's court under

any provision of section 94 shall be tried by such court in all respects in

accordance with the relevant provisions of Parts X, XI, XIII, XIV, XV, XVI and

XVII and also in accordance with and subject to the law governing such court;

and any conviction and any sentence imposed in respect thereof shall be subject

to review or appeal as prescribed by such law.

[Ch0802s96]96. Indictment by Director of Public Prosecutions in certain cases

(1) Notwithstanding anything contained elsewhere

in this Act the Director of Public Prosecutions may, if he considers it

desirable to do so, at any time and whether or not a preparatory examination

has been commenced, serve upon an accused notice of his intention to indict him

for trial before the High Court on a charge of any offences specified in such

notice.

(2) A copy of the notice served under subsection

(1) shall be served upon any magistrate having jurisdiction in the district in

which a preparatory examination in respect of the offence could be or is being

held and, thereupon, such magistrate shall cause the accused to be brought

before him and shall, notwithstanding anything contained elsewhere in this Act,

forthwith commit the accused for trial before the High Court in respect of the

offence specified in such notice and commit the accused to gaol there to be

detained until brought to trial before the High Court for the offence specified

in the warrant or until admitted to bail or liberty in the due course of law.

(3) Where an accused person has been committed for

trial under subsection (2) there shall be served upon him, at the same time as

the indictment and notice of trial are served upon him under the provisions of

section 123, a list of the witnesses whom it is proposed to call and a summary

of the evidence of each of such witnesses. Each summary shall be deemed to be a

deposition for the purposes of section 98.

[Ch0802s97]97. Accused to be committed for trial by magistrate before trial in

the High Court

No person shall be tried in the High Court for any

offence unless he has been previously committed for trial by a magistrate,

whether or not the committal was on the direction of the Director of Public

Prosecutions in exercise of the powers conferred upon him by section 94(1)(c)

or in accordance with the provisions of section 96 for or in respect of the

offence charged in the indictment:

Provided that-

(i) in any case in

which the Director of Public Prosecutions has declined to prosecute, the High

Court may, upon the application of any such private party as is described in

sections 14 and 15, direct any magistrate to take a preparatory examination

against the person accused;

(ii) an accused

person shall be deemed to have been committed for trial for or in respect of the

offence charged in the indictment, if the depositions taken before the

committing magistrate contain an allegation of any fact or facts upon which the

accused might have been committed upon the charge named in the indictment

although the committing magistrate may, when committing the accused upon such

depositions, have committed him for some offence other than that charged in the

indictment or for some other offence not known to the law;

(iii) an accused

person who is in actual custody when brought to trial, or who appears to take

his trial in pursuance of any recognizance entered into before any magistrate,

shall be deemed to have been duly committed for trial upon the charge stated in

the indictment unless he proves the contrary.

[Ch0802s98]98. Persons committed for trial or sentence entitled to receive copy

of depositions of witnesses

Every accused person who is committed for trial or

sentence for any offence, shall be entitled to demand, and to have within a

reasonable time in that behalf, from the person who has the lawful custody

thereof, a copy of the depositions of the witnesses upon which he has been so

committed and of his own statement and evidence (if any), and the person who

has the lawful custody of such depositions, statements and evidence shall

deliver a copy thereof to the person aforesaid or his legal representative on

payment of a reasonable sum not exceeding seven thebe for each folio of 100

words, or, in any case where counsel is assigned by the court to defend the accused

pro deo, shall deliver a copy thereof to the accused or such counsel

free of charge:

Provided that-

(i) if such demand

is not made before the day appointed for the commencement of the trial of the

person on whose behalf such demand is made, such person shall not be entitled

to have any such copy of depositions, unless the judge presiding at the trial

is of opinion that such copy may be made and delivered without delay or

inconvenience to the trial, and

(ii) such judge

may, if he thinks fit, postpone the trial by reason of such copy not having

been previously had by the accused.

[Ch0802s99]99. Persons under trial may inspect depositions without charge at

trial

Every accused person shall be entitled at the time

of his trial to inspect without fee or reward all depositions (or copies

thereof) which have been taken, and the statement made or evidence given, at

the preparatory examination by such person.

[Ch0802s100]100. Record of evidence in absence of accused

If it is proved after a preparatory examination

has commenced that the accused absconded and that there is no immediate

prospect of arresting him, or if the accused conducts himself in such a manner

that the preparatory examination cannot in the opinion of the magistrate

properly proceed in the presence of the accused, the magistrate may on the

instruction of the Director of Public Prosecutions examine, in the absence of

the accused, the witnesses (if any) produced on behalf of the prosecution and

record their depositions.

[Ch0802s101]101. Duty of magistrate to take depositions as to alleged offence in

cases where the actual offender not known or suspected

(1) Every magistrate may, at any time upon the

request of the local public prosecutor, require the attendance of any person

who is likely to give material evidence as to any supposed offence, whether or

not it be known or suspected who is the person by whom the offence has been

committed.

(2) The provisions of sections 65 to 68 inclusive

shall apply in respect of persons required to attend and give evidence under

this section.

[Ch0802s102]102. Access to accused by friends and legal advisers

(1) The friends and legal advisers of an accused

person shall have access to him, subject to the provisions of any law or

regulations relating to the management of gaol.

(2) An accused person while the preparatory

examination is being held is entitled to the assistance of his legal advisers.

[Ch0802s103]103. True copy of warrant of commitment to be furnished to prisoners

under a penalty of P100

In every case where an accused person is committed

for trial or sentence, he shall be entitled to demand a true copy of the

warrant from the officer who is the bearer thereof or keeper of the gaol in

which he is detained, who shall be liable to pay by way of penalty a sum not

exceeding P100 if he refuses to give such copy within six hours after it is

demanded by the accused or his legal adviser. Such penalty shall be recoverable

by civil proceedings at the suit of the accused person.