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110 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010 5.2.3 The duty to advise the unrepresented accused of the possible conviction of a lesser offence There are occasions where the prosecution fails to establish the offence with which the accused is charged because they have not established one or more elements constituting the offence. However, it might still be possible to convict the accused of a lesser offence on the basis of the evidence adduced. 115 For example, a person may be convicted of an attempt to commit an offence for which she was charged where the evidence establishes attempt but fails to establish the substantive offence. 116 Also, a person charged with defilement may end up with a conviction for indecent assault. 117 Where it is apparent to the judicial officer that the accused might be convicted of a lesser offence, she must advise the accused of this possibility. In the case of State v Bareki 118 the Court held that on a charge of rape, where the accused is unrepresented, he must be informed of the fact that a conviction of defilement is a competent verdict, where it is alleged that the victim is under the age of sixteen years. In this regard, the accused must be given an opportunity of addressing the additional issues such as the age of the victim. 119 The Court noted that section 10(2)(b) of the Constitution of Botswana provides that an accused be informed of the offence for which he is charged. In the Court’s view, therefore, a judicial officer has a duty to inform an unrepresented accused of the possibility of conviction of an alternative offence. Since the particulars of the offence had made no reference to the age of the victim, the accused could not have adverted his mind to the issue of age or its relevance. In the case of Chalaomane v The State, 120 the appellant had been charged with the offence of shop-breaking and theft. The only evidence proved against the appellant was that he was in possession of goods stolen from the shop in question. The trial court did not warn him of a possible conviction of the offence of receiving stolen property and proceeded to convict him of that offence. The Court noted that the trial court should have warned the appellant of the risk of conviction on the alternative offence of receiving stolen property as stipulated by section 194 of the Criminal Procedure and Evidence Act. 121 The Court noted, however, that the evidence 115 Section 187 of the Criminal Procedure and Evidence Act Cap 08:02. See generally sections 187 to 197 of the Criminal Procedure and Evidence Act. 116 Section 188 of the Criminal Procedure and Evidence Act. 117 Section 193 of the Criminal Procedure and Evidence Act; Segametsi v The State [1986] B.L.R. 441. 118 Op.cit. note 51 supra. 119 Ibid. 120 [1986] B.L.R. 261 (CA). 121 Section 194 of the Criminal Procedure and Evidence Act provides: “When a person is charged with any offence mentioned in sections 300 to 305 of the Penal Code (relating to burglary, house-breaking and similar offences) and the court is of the opinion that he is not guilty of that offence but that he is guilty of any other offence mentioned in those sections or in sections 317 to 320 of the Penal Code, he may be convicted of that other offence although he was not charged with it.”
UNREPRESENTED ACCUSED IN BOTSWANA 111 related solely and entirely to possession of stolen goods. As this was the sole issue, the appellant had an opportunity of defending himself in relation to possession and did so on the basis of an alibi and denial of possession. The defence was rejected. Therefore, according to the Court, the appellant was not prejudiced in any way. The Court held that there was no substantial miscarriage of justice, and dismissed the appeal. In Bareki, the Court aligned its argument with the constitutional right of the accused to be informed of the offence with which she is charged. According to the Court, where it is possible that an accused may be convicted of an offence with which she was not charged, the judicial officer has a duty to inform the accused accordingly and she must be afforded an opportunity to defend herself on any additional issues that the situation may present. The procedural question that arises is, at what stage the warning should be made. Should it be made as soon as the possibility of a lesser charge is clear or apparent. The problem here is that at the time the issue of a possible alternative verdict registers itself, the judicial officer may not be sure whether she would convict the accused of the substantive or lesser offence. The question of whether the accused will be convicted of the substantive or lesser offence would depend on what finding of fact the judicial officer will make at the end of the day, having regard to the evidence. In other words, it would depend on which side the judicial officer believes. Again, the possibility of an acquittal would not be entirely ruled out. Even, and assuming that the possibility of a conviction for a lesser offence loomed at the time the State closed its case, the evidence of the defence might tilt the ground in favour of an acquittal. It should be said therefore, that the judicial officer should fulfil this duty as soon as it becomes apparent that an alternative verdict is possible. Though Chalaomane and Bareki do not give directions as to how the court should exercise its duty, the case of State v Sethunya 122 is of valuable assistance. Relying on the constitutional right of the accused to be informed of the charges against her, the Court noted that the duty arises “as soon as the possibility of a conviction of another offence enters the mind of the trial judge.” 123 In a master stroke, the Court set out the duty and its procedural implications when it noted: “The judge should remember that the accused comes to contest the charge in the indictment. He may be put at a disadvantage by finding during the trial that he has to meet an allegation that he committed another offence. The accused must be protected in such circumstances and an adjournment should be granted in exceptional circumstances. There is no fixed time in a trial when a warning 122 [1986] B.L.R. 483. 123 Ibid at p. 485H.
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