CHAPTER 08:02 CRIMINAL PROCEDURE AND EVIDENCE ARRANGEMENT OF SECTIONS SECTION PART I Preliminary 1 . Short title 2 . Procedure for offences 3 . Interpretation PART II Criminal Jurisdiction of Courts 4 . Jurisdiction of High Court 5 . Jurisdiction of magistrates' courts 6 . The High Court and magistrates' courts PART III Prosecution at the Public Instance A. DIRECTOR OF PUBLIC PROSECUTIONS 7 . Director of Public Prosecutions vested with right of prosecuting all offences 8 . Prosecution by Director of Public Prosecutions in person or by appointed substitute 9 . Presiding officer may appoint prosecutor in certain cases 10 . Attorney-General's power of stopping prosecutions 11 . Power of ordering liberation of persons committed for further examination, sentence or trial 12 . Neither acquittal nor conviction a bar to civil action for damages B. LOCAL PUBLIC PROSECUTOR 13 . Powers and duties of local public prosecutor PART IV Private Prosecutions 14 . Private prosecution on refusal of Director of Public Prosecutions to prosecute 15 . What other persons entitled to prosecute 16 . Private prosecutions by certain public bodies and persons 17 . Private prosecutor may apply to court for warrant 18 . Certificate of Director of Public Prosecutions that he declines to prosecute 19 . Recognizances to be entered into by private prosecutor 20 . Failure of private prosecutor to appear on appointed day 21 . Mode of conducting private prosecutions 22 . Competency of Director of Public Prosecutions to take up and conduct prosecution at the public instance in all cases 23 . Deposit of money by private prosecutor Copyright Government of Botswana 24 . Costs of private prosecutions 25 . Disposal of fines in certain private prosecutions PART V Prescription of Offences 26 . Prosecution for murder not barred by lapse of time, for other offence barred by lapse of 20 years PART VI Arrests A. WITHOUT WARRANT 27 . Arrest and verbal order to arrest for offences committed in the presence of judicial officers 28 . Arrest by peace officer for offences committed in his presence and on reasonable grounds of suspicion as to certain offences 29 . When peace officer may arrest without warrant 30 . Failure to give particulars of name and address to a peace officer constitutes an offence 31 . Arrest by private person for certain offences committed in his presence 32 . Arrest by private person in case of an affray 33 . Owners of property may arrest in certain cases 34 . Arrest by private persons for certain offences on reasonable suspicion 35 . Arrest of persons offering stolen property for sale, etc. 36 . Procedure after arrest without warrant B. WITH WARRANT 37 . Warrant of apprehension by judicial officer or justice 38 . Endorsement of warrants 39 . Execution of warrants 40 . Telegram stating issue of warrant authority for execution of the same 41 . Arresting wrong person 42 . Irregular warrant or process 43 . Tenor of warrant C. GENERAL 44 . Assistance by private persons called on by officers of the law 45 . Breaking open doors after failure in obtaining admission for the purpose of arrest or search 46 . Arrest: how made, and search thereon of person arrested 47 . Resisting arrest 48 . Power to retake on escape 49 . Saving of other powers of arrest 50 . Saving of civil rights PART VII Search Warrants, Seizure and Detention of Property Connected with Offences and Custody of Women Unlawfully Detained Copyright Government of Botswana for Immoral Purposes 51 . Search warrants 52 . Search by police without warrant 53 . Search for stolen stock or produce, liquor or habit-forming drugs 54 . Judicial officer may order seizure of books or documents in possession of any person 55 . Seizure of counterfeit coin, etc. 56 . Seizure of vehicle or receptacle used in connection with certain offences 57 . General powers of police to seize or take property affording evidence as to commission of offence 58 . Disposal of property seized 59 . Weapons seized under search warrants PART VIII Preparatory Examination 60 . Persons who may hold preparatory examinations 61 . Summons to appear at preparatory examination 62 . Contents of summons 63 . Commencement of preparatory examination 64 . Irregularities not to affect the proceedings 65 . Clerk of the court to subpoena witness 66 . Arrest and punishment for failure to obey subpoena or to remain in attendance 67 . Tender of witness's expenses not necessary 68 . Witness refusing to be examined or to produce document may be committed 69 . Procedure where trial in magistrate's court has been turned into a preparatory examination 70 . Evidence on oath at preparatory examination 71 . Recognizance of witness to appear at trial 72 . Absconding witness may be arrested 73 . Witness refusing to enter into recognizance 74 . Provisions as to taking statement or evidence of accused person 75 . Evidence and address in defence 76 . Saving as to further evidence and admissions 77 . Discharge of accused person 78 . Committal for trial 79 . Binding over of witnesses conditionally 80 . Admission of previous convictions by accused at conclusion of preparatory examination 81 . Powers of Director of Public Prosecutions on discharge of accused 82 . Committal of accused for trial 83 . Proceedings on admission of guilt 84 . Committal by magistrate where offence committed outside district 85 . Removal of accused from gaol of one district to that of another 86 . Committal for further examination 87 . When offence committed on the boundaries of districts or on a journey 88 . Districts in which preparatory examination may be held 89 . Discretionary powers of the magistrate 90 . Bail before conclusion of examination in magistrate's discretion 91 . Prosecutor or magistrate conducting preparatory examination to make local inspection and to cause post mortem and other examinations to be made Copyright Government of Botswana 92 . All articles to be used in evidence on the trial to be labelled for identification and to be kept in safe custody 93 . Records of preparatory examination to be sent to the Director of Public Prosecutions 94 . Powers of Director of Public Prosecutions 95 . How remitted cases to be dealt with 96 . Indictment by Director of Public Prosecutions in certain cases 97 . Accused to be committed for trial by magistrate before trial in the High Court 98 . Persons committed for trial or sentence entitled to receive copy of depositions of witnesses 99 . Persons under trial may inspect depositions without charge at trial 100 . Record of evidence in absence of accused 101 . Duty of magistrate to take depositions as to alleged offence in cases where the actual offender not known or suspected 102 . Access to accused by friends and legal advisers 103 . True copy of warrant of commitment to be furnished to prisoners under a penalty of P100 PART IX Bail A. AFTER PREPARATORY EXAMINATION IS CONCLUDED 104 . Bailable offences 105 . Verbal application for bail 106 . Application for bail after commitment 107 . Magistrate to determine whether the offence is bailable 108 . Refusal of bail from the uncertain issue of act committed 109 . Conditions of recognizances 110 . On failure of accused to appear at trial, recognizance to be forfeited B. IN CASES TRIED BY MAGISTRATES' COURTS 111 . Power to admit to bail, nature of bail and provision in case of default C. GENERAL FOR ALL CRIMINAL CASES 112 . Excessive bail not to be required 113 . Appeal to High Court against refusal of bail 114 . Power of the High Court to admit bail 115 . Insufficiency of sureties 116 . Release of sureties 117 . Render in court 118 . Sureties not discharged until sentence or discharge of the accused 119 . Death of surety 120 . Person released on bail may be arrested if about to abscond 121 . Deposit instead of recognizance 122 . Remission of bail PART X Indictments and Summonses A. INDICTMENT IN THE HIGH COURT Copyright Government of Botswana 123 . Charge in the High Court to be laid in an indictment 124 . When the case is pending B. SUMMONSES AND CHARGES IN MAGISTRATES' COURTS 125 . Lodging of charges in a magistrate's court 126 . Summons in magistrate's court 127 . Charges in remitted cases C. INDICTMENTS AND SUMMONSES 128 . Offence to be specified in indictment or summons with necessary particulars 129 . Joinder of counts in an indictment or summons 130 . Joinder of two or more accused in one indictment or summons 131 . Rules for the framing of indictments or summonses 132 . Amendment of Third Schedule PART XI Procedure before Commencement of Trial A. IN THE HIGH COURT 133 . Persons committed to be brought to trial at the first session provided 31 days have elapsed from commitment 134 . Change of place of trial 135 . Such prisoners not brought to trial at second session after commitment entitled to discharge from imprisonment B. IN MAGISTRATES' COURTS 136 . Commencement of proceedings if accused is in custody C. GENERAL FOR ALL COURTS 137 . Persons brought before wrong court 138 . Trial of pending case may be postponed 139 . Adjournment of trial 140 . Powers of court on postponement or adjournment 141 . Accused to plead to the indictment or summons 142 . Effect of plea 143 . Objections to indictment, etc. how and when to be made 144 . Exceptions 145 . Proceedings if defence be an alibi 146 . Court may order delivery of particulars 147 . Motion to quash indictment, etc. 148 . Notice of motion to quash indictment, etc. and of certain pleas to be given 149 . Certain discrepancies between indictment, etc. and evidence may be corrected 150 . Pleas 151 . Truth of defamatory matter to be specially pleaded 152 . Person committed or remitted for sentence 153 . Accused refusing to plead 154 . Statement of accused sufficient plea of former conviction or acquittal Copyright Government of Botswana 155 . Trial on plea to the jurisdiction 156 . Issues raised by plea to be tried PART XII Procedure in Case of the Insanity or Other Incapacity of an Accused Person 157 . Interpretation in Part XII 158 . Inquiry by court as to lunacy of accused 159 . Defence of lunacy at preparatory examination 160 . Defence of lunacy at trial 161 .