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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.