University of Botswana Law Journal - PULP

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.