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

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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.