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Unsworn statement from the dock and the accused person in Botswana

Published online by Cambridge University Press:  28 July 2009

E. K. Quansah
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Extract

In a criminal trial an accused person may either choose not to give evidence or give evidence on oath (or affirmation) or make an unsworn statement from the dock. It is with this latter option that this article is concerned. This right to make a statement without being sworn is recognized in section 218 of the Criminal Procedure and Evidence Act (C. P. & E.) which confers competency on an accused person, their wife or husband to testify for the defence at every stage of the proceedings. Section 218(3) provides that:

Type
Research Article
Information
Journal of African Law , Volume 43 , Issue 2 , Autumn 1999 , pp. 234 - 243
Copyright
Copyright © School of Oriental and African Studies 1999

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References

1 These options must be explained to the accused—see State v. Moshotle [1985] B.L.R. 131 at 133 and State v. Mponapi [1986] B.L.R. 120 at 122.

2 S. 1 (h) of the 1898 Act is in the following terms: “Nothing in this Act shall affect … any right of the person charged to make a statement without being sworn”. On the historical link between English law of Evidence and Botswana law of Evidence, see Quansah, E. K. “Competence of a spouse as a witness: Some unresolved issues in Botswana”, [1998] J.A.L. 80 at 80–83.CrossRefGoogle Scholar

3 See the English Criminal Law Revision Committee Eleventh Report Evidence (General) paras. 21(iii) and 102 and Cohen, M., “The unsworn statement from the dock”, [1981] Grim, L.R. 224.Google Scholar

4 Cross, R., Evidence (3rd ed.) London, 1967, 159. The right to make such a statement was abolished in 1982 by s. 72 of the Criminal Justice Act, 1982.Google Scholar

5 See Cohen, , op. cit at 225Google Scholar and Stephen, , History of Criminal Law, vol. 1, at 441.Google Scholar

6 The judge or counsel for a co-accused may however comment on the accused's failure to testify. The position has been changed by s. 35 and sch. XI of the English Criminal Justice and Public Order Act, 1994. This Act repealed s. 1 (b) of the 1898 Act buts. 80(8) of the Police and Criminal Evidence Act, 1984, still prohibits comment by the prosecution upon the failure of the accused's spouse to testify.

7 See s. 10(2)(d) of the Constitution of Botswana.

8 See Shankley v. Hodgson [1962] Crim, L. R.248.Google Scholar

9 (1964) 48 Cr. App. R. 284.Google Scholar

10 per Parker, L.C.J., at 290–291. Two years earlier in Shankley v. Hodgson, op. cit. the learned Chief Justice had categorized as “perverse” a dismissal of a charge by a magistrate solely on the basis of the accused's unsworn statement.Google Scholar

11 [1974] 1 W.L.R. 1090 at 1096per Salmon, Lord.Google Scholar

12 (1977) 64 Cr. App. R. 11 at 17–18per Shaw, I.J.Google Scholar

13 (1979) 69 Cr. App. R. 221 at 225per Bridge, I.J.Google Scholar

14 [1974] B.L.R. 117per Aguda, C.J.Google Scholar

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16 [1980] B.L.R. 240 per Hannah, J.

17 [1985] B.L.R. 121.

18 [1985] B.L.R. 123.

19 Above.

20 [1986] B.L.R. 215.

21 [1986] B.L.R. 399.

22 See Cohen, , above at 230.Google Scholar

23 [1984] B.L.R. 169.

24 Above.

25 [1948] 1 K.B. 4.Google Scholar

26 Per Lord Goddard, C.J., at 6–7.Google Scholar

27 See the English cases of Murdoch v. Taylor [1965] A.C. 574 al 593 per Lord Donovan R. v. George (1979) 68 Cr. App. R. 210 at 212per Lord Goddard, C.J.,Google Scholar and R. v. Gunewardene (1951) 35 Cr. App. R. 80 at 91per Lord Goddard, C.J.Google Scholar

28 See the English case of Allen v. Allen [1894] P. 248 at 254per Lopes, L.J.Google Scholar

29 Per Hayfron-Benjamin, C.J., in State v. Roy Morris [1979–1980] B.L.R. 80 at 83.Google Scholar

30 [1990] B.L.R. 477. Aspects of the right to legal representation are discussed in the following cases: Maano v. The State [1982] B.L.R. 95 at 96–97, Samaribela v. The State [1987] B.L.R. 37; Phaladze v. The State [1987] B.L.R. 166 and Nsereko, D. D. N. “The right to legal representation in Botswana”, [1988] Israel Yearbook on Human Rights 211.Google Scholar

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33 See the English cases of Selvey v. D.P.P. [1970] A.C. 304 and R. v. Britzman (1983) 76 Cr. App. R. 134. Cf. the South African position in R. v. Hendrickz 1933 T.P.D. 451.Google Scholar

34 See the English case of Jones v. D.P.P. [1962] A.C. 635.

35 [1982] 2 B.L.R. 124.Google Scholar

36 See for example R. v. Ncanane 1948 (4) S.A. 339Google Scholar (A.D.) and State v. Snyman 1968 (2) S.A. 582 (A.D.).Google Scholar

37 See for example State v. Koloti & Ors. [1979–80] B.L.R. 98 and the unreported case of Mochele Pheto v. The State Grim. App. No. 170/1977.

38 At 171per Baron, J.A.Google Scholar

39 At 167–168 per Baron, J.A. See also Kentridge, J.A., at 182 183.Google Scholar

40 Quoted with approval by Kentridge, J.A., at 183. Interestingly, recent legislation in England has achieved a similar result as Moagi's case—see s. 35(3) of the Criminal Justice and Public Order Act, 1994, which allows a court or jury to draw appropriate inferences from the failure of an accused to give evidence.Google Scholar

41 See Mphakela v. The State [1990] B.L.R. 42 at 45per Aboagye, J.Google Scholar

42 See s. 227(3) of the Criminal Procedure Act 56 of 1955.

43 See R. v. Wooldridge 1956 (1) S.A. 5Google Scholar and R. v. Cele 1959 (1) S.A. 245.Google Scholar

44 See Amissah, A.N.E.Criminal Procedure in Ghana, Accra, 1982, at 133.Google Scholar

45 [1965] G.L.R. 208 at 210–211.

46 N.R.C.D. 323.

47 See s. 63(3) of the Decree.

48 Ofori-Boatcng, , The Ghana Law of Evidence, Accra, 1993, at 209.Google Scholar

49 See s. 287(1)(a)(i) of the Criminal Procedure Act, 1945, Cap. 43.

50 See Doherty, O., Criminal Procedure in Nigeria, London, 1990, at 285Google Scholar and Aguda, T. A., Criminal Law and Procedure of the Southern States of Nigeria, London, 1982, at para. 477.Google Scholar

51 Per Lord Widgery, C.J., in R. v. George (1979) 68 Cr. App. R. 210 at 211.Google Scholar

52 Cross, above, at 160.

53 At para. 104 of its Eleventh Report Evidence (General) Cmnd. 4991. 1972.

54 See for example, the Penal Code (Amendment) Act, 1998. prescribing minimum sentences for rape convicts and Establishment and Jurisdiction of Customary Courts (Amendment) Order 1997 S.I. No. 99 of 1997, which increases the powers of the customary courts m relation to stock theft and drug offences.

55 Examples of such needed reforms are the corroborative aspects of a rape victim's testimony—see Quansah, E. K. “Corroborating the evidence of a rape victim in Botswana: Time for a fresh look”, (1996) 28 Botswana Notes and Records 231; Competence of spouses to testify at each other's trial—Google ScholarQuansah, E. K. “Competence of a spouse as a witness: Some unresolved issues in Botswana”, (1998) n. 2 above.Google Scholar