WILDLIFE CRIME IN BOTSWANA “Points to Prove”: A Guide for ... · 6 Wildlife Crime in Botswana...

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WILDLIFE CRIME IN BOTSWANA “Points to Prove”: A Guide for Prosecutors and Investigators including Sample Charges and Best Practice Guidance 2nd Edition 2018

Transcript of WILDLIFE CRIME IN BOTSWANA “Points to Prove”: A Guide for ... · 6 Wildlife Crime in Botswana...

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WILDLIFE CRIME IN BOTSWANA

“Points to Prove”: A Guide for Prosecutors

and Investigators including Sample

Charges and Best Practice Guidance

2nd Edition 2018

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Wildlife Crime in Botswanaii Wildlife Crime in Botswana 1

FOREWORD ............................................................................................... 2

INTRODUCTION ......................................................................................... 3

INTER-AGENCY COOPERATION: BEST PRACTICE GUIDANCE ...................... 4

BAIL ..........................................................................................................7

GUIDANCE ON INTERVIEWS AND STATEMENTS

OF ACCUSED PERSONS AND WITNESSES .................................................. 8

GUIDANCE ON EXPERT EVIDENCE ............................................................ 11

OFFENCES UNDER THE WILDLIFE CONSERVATION AND NATIONAL PARKS

ACT, CHAPTER 38:01 ...............................................................................14

Unauthorised Entry .............................................................................................................. 14Prohibited acts/weapons/hunting of ANY species ..........................................15Illegalmining/prospecting ................................................................................................16Killing/Hunting/Capture in a National Park ........................................................17Hunting/Killing/Capture in a Game Reserve or Sanctuary ..............................................................................................................................18Hunting/capturing of an animal – private game reserve ............................................................................................................19Hunting/Capture in a Controlled Hunting Area...............................................20Hunting/Capture of a Protected Game Animal or Rhino .............................21Hunting/capture of animals – partially protected/seventh schedule/non designated/Elephant .........................................................................22Killing Schedule 8 Animals in Excess of Specified Numbers...................................................................................................................23Authorising others to hunt or kill without a permit or license ........24Failing to keep/maintain records of animals killed ......................................26Offences on game farms/ranches .............................................................................27Misrepresentation on license applications .........................................................28Hunting Card Offences .......................................................................................................30Failing to report loss of license ..................................................................................31Failing to maintain a register.........................................................................................32Failing to comply with the terms of a permit....................................................33Failing to return a permit ............................................................................................... 34Professional Guides ..............................................................................................................35professional hunters .........................................................................................................37Breaching Hunter’s Licenses ..........................................................................................39Hunting a prohibited animal ............................................................................................41Killing in defence ................................................................................................................... 42Reporting offences............................................................................................................... 43Hunting without Permission ........................................................................................... 45Offences in relation to landowners ....................................................................... 46Wounding an Animal ............................................................................................................ 49Hunting at Night .......................................................................................................................50Hunting during Closed Season .......................................................................................51Unlawful Methods of Hunting ......................................................................................52

Hunting of Elephant or Buffalo ..................................................................................53Lions and Leopards ............................................................................................................... 54Selling/trade offences ......................................................................................................55Import/Export Offences.....................................................................................................57Trophy Offences ......................................................................................................................58Elephant Offences ..................................................................................................................61Rhino Offences ..........................................................................................................................62Elephant Offences .................................................................................................................63Rhino Offences ..........................................................................................................................65Trophy Offences ......................................................................................................................66Offences in relation to Wildlife Officers ..............................................................67Forest Areas ..............................................................................................................................70keeping animals ........................................................................................................................71False Information ...................................................................................................................72Offences in relation to Wildlife Officers ..............................................................73

THE ARMS AND AMMUNITIONS ACT CAP 24:01 ..................................... 74

For those bringing weapons from across the borders ............................74Offences relating to possession of arms/arms of war – automatic weapons ...............................................................................................................75Movement of weapons .......................................................................................................76Transfer /Possession of Special Types of Weapons.....................................77Use of Weapons Registration/Certificate offences .......................................78Registration/Certificate offences ..............................................................................79 Storage of Weapons .............................................................................................................81Loss of Weapons/Failure to Report...........................................................................82

THE CORRUPTION AND ECONOMIC CRIME ACT 1994 NEEDS CONSENT OF

THE DPP FOR A PROSECUTION ............................................................... 84

Acceptance of a bribe by a public officer ........................................................... 84Bribing a Public Officer ......................................................................................................85Corruption by Agents eg Importers/transporters/exporters ...........86Corruption of an Agent ....................................................................................................87

GUIDANCE ON SENTENCING .................................................................... 88

General guidance on Species for Sentencing Submissions .......................88Aggravating features checklist...................................................................................90

Court of Appeal decision on possession

of ivory tusks ......................................................................................91

APPENDIX I ........................................................................................... 95

Extracts from the Wildlife Conservation and National Parks Act Cap 38:01 ........................................................................................................................................95

www.spaceforgiants.org

TABLE OF CONTENTS

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Wildlife Crime in Botswana2 Wildlife Crime in Botswana 3

FOREWORD FROM THE DIRECTOR OF

PUBLIC PROSECUTIONS, BOTSWANAThe intention of this tool, launched in 2017, was to improve the quality of wildlife investigations and prosecutions. Already, over 300 key stakeholders have been trained in its use and its utility has been proved time and again in the courts across this country.

However, wildlife crime continues to be a scourge against our natural heritage of which Botswana is rightfully proud. As the criminal elements involved in committing crimes against our natural resources continue to devise new means of violating our laws, we, as the entities responsible for protection of our wildlife and natural resources must continue to evolve in our efforts to meet the challenge.

This second edition of the “Points to Prove”: A Guide for Prosecutors and Investigators” (sic) has been created to reflect the challenges posed to prosecutors and the judiciary in relation to the important issue of sentencing. It is vital that consistency in sentencing is achieved and that the courts send out a strong deterrent message to the pubic - that such crimes will not be tolerated and will be punished severely and commensurately with the seriousness of the crime.

Accordingly, I am pleased to issue this second edition and commend it to all prosecutors, investigators and judiciary involved in the handling of wildlife crime in the hope that it will enhance the delivery of justice as Botswana continues to hold her position as a leader in conservation and protection of wildlife.

Signed

Stephen B Tihoyakgosi Director of Public Prosecutions, Botswana

INTRODUCTIONWildlife crimes and poaching incidents have been on the increase in recent years, across the African continent, and Botswana has not been spared. Poaching is more organised and the transnational nature of such criminal activity has evolved and diver-sified with links that include human migrant exploitation, money laundering, arms and drugs trafficking to name a few.

The escalating demand and interest for wildlife and wildlife products has created a niche market for poachers to meet that demand. As a result, the traditional trends in poaching have changed drastically to meet the escalating demands. Inevitably the advent of new poaching techniques and commercial poaching has resulted in mass killings and over-harvesting of wildlife products which in its form is purely profit orientated and highly destructive.

Faced with this growing threat within the borders of Botswana, the need to combat and arrest this scourge is apparent. In response, the Directorate of Public Prosecutions, Botswana, together with the Department of Wildlife and National Parks, instigated the first inter-agency forum on wildlife crime in November 2016 in Gaborone to develop this “points to prove” guide to wildlife crime. This toolkit encompasses all relevant offences under existing laws at the time of publication and is intended to be used as a quick reference guide for investigators, prosecutors and judges alike. This toolkit lays out what is required to build an evidential case against those accused of wildlife crime; it also sets out the ancillary powers available to the court and provides sample charges to assist investigators and prosecutors correctly draft the appropriate charge.

Finally, this toolkit includes best practice guidance aimed at enhancing investigations and fostering better relations between the agencies involved in the fight to preserve Botswana’s heritage and biodiversity. The Directorate of Public Prosecutions and the Department of Wildlife and National Parks would thank Shamini Jayanathan, Legal Director of Space for Giants for her legal expertise in bringing this to bear, the United Nations of Office and Drugs and Crime, the European Union, the Wildlives Foundation and the Tlokomela Trust for their unerring and generous support to this venture.

This toolkit should be read in conjunction with the “Code for Prosecutors on the Decision to Charge” issued by the Directorate of Public Prosecutions in 2017.

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INTER-AGENCY COOPERATION: BEST PRACTICE GUIDANCE

The best prospect of success for a criminal prosecution lies with early and continued engagement between the prosecution au-thority and the investigation authorities. This best practice guidance sets out the principles and practice that should be adopted by the Anti-Poaching Unit, the Police and the DPP.

1 PRE-ARREST CONFERENCE BETWEEN PROSECUTION AND THE INVESTIGATION. Where an arrest is being contemplated, the prosecution and I.O. will ensure that a pre-arrest conference is held as soon as possible after notification from the investigating officer to the prosecutor. At the conference, the prosecution may address the following issues:

a. Identifying a prosecutor to handle the matter;b. Possible offences to charge;c. Lines of inquiry;d. Admissibility of the evidence;e. Potential need for expert evidence;f. Possible legal preliminary applications e.g. restraining orders, mobile data production orders, inspection of bank ac-

counts, liaison with customs and immigration regarding movement of goods or persons;g. Identification of likely issues in the case e.g. relations between accused and witnesses, compellability of witnesses, age

of suspects and witnesses, jurisdiction and venue of possible trial;h. Consideration of issues regarding witness protection and care (e.g. screens in court, protection of informants etc);i. Cross border investigations e.g. extradition processes, mutual legal assistance, use of Interpol data;j. Whether a parallel financial investigation should be involved e.g. contacting the Financial Intelligence Authority;k. Evidential and legal consequences of a proposed investigative technique e.g. surveillance, controlled delivery;l. The need for regular meetings between prosecution and investigation to track the progress of the investigation;m. Preservation of crimes scenes, collection and handling of exhibits; n. Use of informants and how best to encourage information sharing from sources.

2 POST ARREST ACTIONS Where an arrest is made in the absence of prior consultation with the prosecution, the following shall occur (note, this is not an exhaustive list).

a. Recording of the accused statements;b. Recording charge and caution statements;c. Photographing the accused with the accused’s signed consent;d. Conduct of identification parades where necessary (see guidance below);e. Lifting of finger prints from the objects and suspects involved;f. Interviewing and recording of witness statements (see guidance below);g. Consideration of bail and any other relevant applications (see guidance below);h. Any further inquiries by the investigator;i. Give consideration to the need for liaison with any other relevant agencies e.g. immigration;j. Consideration of granting the suspect police bail where the file is not ready for charge;k. Drafting of the charge sheet;l. Consider the need for advice listed in (1) above;m. Obtaining record of previous convictions.

Minimum requirement of a file to be submitted by the I.O. to the DPP

BEFORE A CHARGING DECISION IS MADE

A proposed charge sheet or the signed charge sheet by the DPP or an authorized officer.

Particulars of the accused

Time, date and place of offence

Antecedents of the accused persons, affidavit regarding bail. See TEMPLATE on page….

Key witness statements including arresting officers and Investigating Officer and scene of crime officers in the file including observations if applicable on state of mind/behaviour etc.

Expert reports or indication if one is required and anticipated date of completion of analysis and report.

List of exhibits. Any expert reports available at this time; photographs (photo album), bank statements, any recording e.g. on disc (properly labelled), any mobile phone records if available; exhibits slips.

Sketch plan if relevant

Dates to avoid for all witnesses

Brief facts of the case

Copy of the investigation diary

Witness contacts recorded on a separate page

3 POST CHARGE CONFERENCE After first appearance, the DPP will consider the need for a post charge conference depending on the nature of outstanding investigations and complexity of the case.

Where the Investigating Authority takes an accused person to court but intends to transfer the case to the DPP, the repre-sentative of that Authority must REFRAIN from setting a trial date with the court but rather set a mention date and ensure swift transfer of the file to the DPP within 7 days of that hearing.

4 CASE MANAGEMENT CONFERENCESAt the Magistrates Court: where the accused enters a plea of ‘Not Guilty’, the prosecution should address the following criteria during a case management conference.

a. Set time frames for disclosure of evidence and need for further investigations if any;b. Confirm the number of witnesses and their availability;c. Agreeing on the trial date and schedule;d. Inform court whether locus visits are required and advise on the need for exhibit stores;e. Agree on procedure of tendering evidence where exhibits are involved;f. Preservation and handling of perishable and live exhibits;g. Confirm the requirement of expert evidence;h. Address issues regarding the suspects legal representation;i. Address the issues relating to release of exhibits to their owners where required and clarify to owners the obligation to

return to court with exhibits as and when required;j. Alert court on the issues regarding forfeiture applications and any other ancillary orders that may be sought post-con-

viction such as deportation, unclaimed assets and identification of the appropriate agency to which forfeiture may be made;

k. Address issues of witness protection concerns;l. Considering logistical requirements in prosecution of the case such as retrieving expert reports, transportation of

witnesses and exhibits;m. Considering the possibility of a plea bargain.

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5 PRE-TRIAL CONFERENCE WITH THE INVESTIGATING OFFICERWhere the case involves a protected species or where there is an international element e.g. where the case involves traf-ficking across borders or mutual legal assistance, this pre-trial conference should take place not less than fourteen days in advance of trial but continued engagement with the I.O. is likely required throughout. For all other cases, the need for a pre-trial conference should be considered by the DPP and where deemed appropriate, the I.O. and DPP should hold a pre-trial conference to ensure the matter is trial ready.

6 ATTENDANCE AT TRIALProsecutors and Investigating Officers should ensure attendance at trial. However, where an Investigating Officer is either transferred, retires or is suspended or in some way leaves the jurisdiction of that court and that authority, it is imperative that the Station Commander with authority over that Investigating Officer sends, a notification to the DPP which shall in-clude the case number, name of the accused, the CR no and name of the I.O. who has left, as well as the name of the officer taking over the matter including the status of that case. It may be the DPP will require an early conference with the new I.O. to ensure both agencies are fully up to date and appraised of the details of the case.

BAIL

TEMPLATE FOR INVESTIGATORS REGARDING BAIL It is imperative that investigating officers give early consideration to the issue of bail and have regard to the factors set out below and present an affidavit or other written reasons for opposing bail in time for the first appearance of the accused. The template below will guide the investigating officer to complete his or her written affidavit, viva voce or other written reasons for opposing bail, and this should be attached to the file when presenting the case to the DPP for a charging decision, first appear-ance or at any other hearing where the issue of bail may be live. This will enable the DPP to better prepare arguments relating to bail in advance of any hearing.

GROUNDS FOR OPPOSING BAIL None of the grounds listed will in themselves be determinative of the matter. All grounds should be accorded equal weight. The factors listed will assist the investigating officer to establish the grounds. The factors listed are not exhaustive. The investigating officer should go through this list for each and every case and provide information and evidence if appropriate, where relevant grounds are identified below.

That the accused may be a flight risk. Factors to consider: 1. The nature and/or seriousness of the offence. E.g. threat to life, corruption, international wildlife trafficking 2. The severity of the punishment which a conviction might entail e.g. lengthy period of imprisonment or high minimum

term (thereby creating an incentive to abscond). 3. The strength of the prosecution case against the accused. Do the statements present a prima facie case against the

accused on the charge alleged? This will require an assessment of the credibility, admissibility and reliability of the evidence to be relied upon. e.g. a confession properly obtained and recorded

4. Whether the accused has community ties. For example, does he have a permanent place of abode? Does he have em-ployment? Does he have family ties to the area? What are his assets and property?

5. Any previous convictions of the accused showing a propensity to disregard the law. 6. Previous conduct where granted bail e.g. violation of earlier bail conditions. 7. Where the accused is a foreign national, does he have the appropriate documents and permanent residence within

Botswana? Even with travel documents e.g. a passport, that might be available for surrender to the court, a foreign national may still leave the jurisdiction given the porous borders

Likelihood that the accused will interfere with witnesses and/or the investigation. Factors to consider include:

1. The geographical proximity between the accused and potential prosecution witnesses and/or any relationship to them. 2. Whether there is a real risk that the accused will tamper with, conceal, destroy or otherwise interfere with evidence

yet to be obtained. Consideration should be given to this particularly where financial assets or other material within the accused’s control are yet to be seized. The investigating officer should at least be able to identify what it is he/she is seeking to recover to give strength to this argument.

Propensity to commit further offences whilst on bail: factors to consider include: 1. Previous convictions 2. Pending prosecution cases 3. Behaviour of the accused upon arrest – was there an attempt to obstruct or escape?

That custody is necessary for the accused’s own protection. Factors might include: 1. Where there is evidence of community anger against the accused regarding the offence 2. Where the accused is showing suicidal tendencies or self-harm upon arrest.

The investigating officer should be prepared to address the issues relating to bail afresh, each and every time the issue of bail becomes live.

Where bail has been granted but a change of circumstances demands a remand in custody, an application to remand can be submitted to the court e.g. withdrawal of a surety or complaint by a prosecution witness of intimidation by the accused.

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GUIDANCE ON INTERVIEWS AND STATEMENTS OF ACCUSED PERSONS AND WITNESSES

1. I.O to record any voluntary verbal statement of the suspect. 2. I.O. should record a statement under inquiry or a cautionary statement 3. The suspect should be informed both during and after arrest of his right to silence and caution. 4. If any confession is to be relied upon, it must have been obtained in accordance with s228 of the Criminal Procedure

and Evidence Act 5. Where possible, video recording should be used when conducting an interview. Suspect should know he is being re-

corded and the caution should be captured on the recording. He should be asked whether he has been or feels intimi-dated or uncomfortable. He should be told that if he wants to take a break, he can; he should be offered a drink of water and asked if has been forced to take part of the interview. All of these questions and answers should be captured on the recording. If the suspect indicates he wishes to confess, he should be taken to a judicial officer forthwith.

6. When interviewing a female suspect it is advisable that a female officer is present in the interview. A statement from that female officer should be taken to confirm her presence and her role within that interview.

7. Where a defence is raised by the suspect (e.g. alibi) the I.O. has a duty to investigate its authenticity.

REQUIREMENTS WHEN TAKING WITNESS STATEMENTS The I.O. should address the following issues when taking a statement from ANY witness (professional or non-professional alike). They need not all be recorded within the statement unless directly relevant to the evidence that witness is giving:

1. Telephone number, address for the witness and a next of kin. This should NOT be recorded in the body of the statement but on a separate page that can be removed but that is kept in the file, NOT to be disclosed to the accused person or his/her defence.

2. Whether the witness is vulnerable in any way and requires assistance either in getting to court or whilst at court e.g. disability, impaired hearing or sight.

3. Whether an interpreter is required and if so in what language 4. Whether facilitation is required in monetary terms to enable the witness to come to court. This should be done in order

to enable timely notification of court hearings to the witness. 5. Whether there are any witness protection requirements. This should be bought to the immediate attention of the

prosecutor. 6. Dates when the witness knows that they will not be available to attend trial. This will enable the prosecutor to, as far as

possible, seek to avoid listing the trial when it is known that the witness will not be available e.g. exams, weddings etc. 7. Include a declaration within the statement that the witness was able to read through his/her statement before signing

or whether the I.O. had to read the statement to the witness before signing. 8. That the I.O. has explained to the witness that he or she may be required to attend court, at the time of taking the

statement. The I.O. should record separately that all of the above factors were addressed. E.g. Circle Yes or No when taking a statement. Where ‘Yes’ is recorded, include additional details.

Vulnerability of the witness Y/N

Interpreter Required Y/N If Yes, specify the language of choice

Facilitation/transport to court Y/N

Witness protection Y/N

Dates to Avoid Y/N

Declaration as to validity of statement Y/N

Warning given that witness may be required to give evidence Y/N

IDENTIFICATION EVIDENCE: MOGATLA VS THE STATE 2001 1 BLR 192 CA AND MONARE VS THE STATE 2005 2 BLR 216 CA

Because of the fallibility of human observation, evidence of identification must be approached with caution. It is not enough for the identifying witness to be ‘honest’; the reliability of his observation must be tested. Accordingly, when a case relies wholly or in part upon the correctness of an identification of the accused, it is imperative that an investigating officer helps the witness when making a statement, to address the following factors:

• Lighting and visibility • Circumstances in which the initial sighting took place e.g. crowded area/mobility of the environment. • Distance between the witness and the suspect at the time of sighting • Whether that distance remained constant or not, e.g. was the suspect running away 9 or getting closer? • General description of the suspect (height, build/body size, weight, hair colour etc.) • Gender • Distinguishing marks or features • Duration of observation • Familiarity – is this a ‘recognition’ case? If so, information as to how long he has known the accused, when was the last

time he saw him and/or how often he would see him. • A description of the type and colour of the clothing worn by the suspect • If there were any obstructions between the witness and the suspect • The witness has not been tainted by other factors or opinions of third parties.

Conduct of an Identity Parade The following is the procedure to follow in the conduct of Identification Parades

• The identification parade should be held as soon as possible after arrest • The accused person should always be informed that he may have a solicitor or friend present when the parade takes

place • It is desirable that the investigating officer should not participate in the arrangement and conduct of the identity

parade. • That the witnesses do not see the accused before the parade • That the accused is placed among at least 8 persons, as far as possible of similar age, height, general appearance and

class of life as himself or herself • If there is more than one identifying witness, they should not mix with one another before, during or after the parade. • That the accused is allowed to take any position he chooses, and that he is allowed to change his position after each

identifying witness has left, if he so desires • Exclude every person who has no business there • Make a careful note of how the parade was conducted, including any statements by each witness leaves the parade,

recording whether the witness identifies or other circumstance • If the witness desires to see the accused walk, hear him speak, or see him with his hat on or off, see that this is done. As

a precautionary measure, it is advisable that the whole parade be asked to do this • See that the witness touches the person he identifies and record this. If possible, video record the identity parade. • At the termination of the parade or during the parade ask the accused if he is satisfied that the parade is being conduct-

ed in a fair manner and make a note of his reply • In introducing the witness tell him that he will see a group of people who may or may not contain the suspected person.

Do not say, “pick out somebody” or influence in any way whatever

Act with scrupulous fairness, otherwise the value of the identification parade as evidence will depreciate considerably

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GUIDANCE ON EXPERT EVIDENCE

An expert is a person who is a specialist in a subject to the extent that qualifies them to present their opinion about a fact in a case during legal proceedings. This may be by training, education and/or experience. e.g. a Basarwa tracker on evidence relating to animal spoor.

An expert may give evidence by affidavit with a report exhibited; or by a statement exhibiting the same. The difference is that the affidavit MAY be accepted as testimony in a case whereas a statement will likely require an expert to attend court unless the defence agree the evidence.

Functions and Duties of an Expert Witness

1. Expert evidence presented to the court should be the independent product of the expert 2. An expert witness must not show bias nor have any vested interest in the case. 3. The expert must not omit material evidence 4. All documents relied upon by the expert in making a determination upon the fact in issue should be retained. 5. Expert evidence should be confined to matters outside of the competence of the court. 6. An expert should make clear when a particular question or issue falls outside of his area of expertise 7. Expert witnesses who submit an affidavit must ensure that that affidavit is properly commissioned.

Commissioner of Oaths. The Commissioner of Oaths who takes an affidavit must not be connected with the body or authority relying upon the expert. The commissioner must be in receipt of the written report prepared by an expert and must be empowered by the Commissioners of Oaths Act Cap 05:03 who shall in terms note his name, signature and position.

Veterinary Surgeons. Under s223 Criminal Procedure and Evidence Act, a veterinary surgeon may give his opinion as to cause of death of an animal by way of a written report. That report, signed by him, shall be admissible as prima facie evidence as to cause of death and the court may receive that report without having to call that witness to verify his signature on that report unless the contrary can be proved.

Accordingly, at an early stage, the prosecution should indicate that they will invoke s223 and not call that witness unless the court so orders.

All experts: Every expert must state, both verbally and within his statement and report, the following matters:

1. His educational and professional qualifications 2. His work experience in the field of the expertise to which he gives evidence 3. Where not professionally qualified, evidence of his experience that gives rise to his expertise e.g. 20 years experience

as a mechanic. 4. Methodology 5. Conclusion 6. Signature

DIGITAL EVIDENCE The Electronic Records (Evidence) Act 2014 and the criminal procedure and evidence act have no particular provisions to deal with digital evidence. Accordingly, this guidance advises investigating officers on what statements exhibiting digital evidence should contain in order to mitigate the risks of such evidence being rendered inadmissible.

CCTV: There should be a statement that includes confirmation that the installation was done by a licensed agent appointed by the issuing authority, along with statements regarding how often the device was serviced, the procedure that was followed to extract the CCTV recording on to a CD or disk and who had access to that recording. The chain of custody regarding that exhibited recording must be carefully recorded.

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Phones/Camera/Ipads: From civilians OR officers using a personal device such as their own mobile phone: any statement exhibiting a photograph taken by a non-professional witness e.g. a photograph taken on a smartphone, should include the following information:

• Ownership of device; • Make and model of the device; • A statement that the device was in good condition at the time of recording the information whether by photo/video or

other. • Declaration of any interest by the witness in relation to the accused or complainant • Presence at the scene, time, date, place and that he used the device to capture the information • The information was stored in that device and that device remained in good working order. • The time and place when he revealed it to the I.O. • What he/she did with the image/digital recording in between; • At what point was the device handed over in its original form OR • If he/she sent a digital copy to the I.O. to print or exhibit, confirmation that he observed the copy and confirms that it is

the same as that contained in his device i.e. the actual exhibiting of the photograph or recording by that witness within the statement.

• If he/she shared the information he should state this

This does NOT require that the owner to hand over his phone to the custody of the police until trial, IF the above requirements are adhered to. What is vital is that the investigating officer prints out copies of the photograph or captures the recording and that they are seen, verified and exhibited by the witness.

On business records e.g. telecoms printouts of call logs or banking statements, or devices used in the course of business by investigating officers e.g. an ‘office camera’, make sure the statement includes the following points:

• He/she made regular use of the computer/device in the ordinary course of business of that organisation; • At the time of recording the relevant information, the computer/device was operating properly and that if there was

any defect, it would not have affected its accuracy. • There was no interference between what was recorded by the computer/device and what is now being produced • If a copy, that copy is certified by the person producing it as accurate.

BEST PRACTICE: SECURING EXHIBITS The Investigating Officer should:

a. Secure the exhibits i. The first officer at the scene of crime shall recover and ensure safety of exhibits and must prepare an inventory

and hand over to Investigating Officer who shall ensure the exhibit’s chain of custody is maintained in the Chain of Custody Form

ii. Investigating Officer shall ensure that the exhibits are properly labelled and kept in separate bags, kits, envelopes or containers to prevent contamination.

iii. The Investigating Officer shall ensure safe custody and proper recording of the exhibit in an Exhibit register. iv. Where a firearm or ammunition is seized, the police shall be immediately informed so as to assist the investigation. v. The Investigating Officer shall determine exhibits that require expert examination, complete the correct forms and

forward them to the appropriate expert examining body without delay. vi. The Investigating Officer shall collect the expert report together with the exhibit from the expert, and keep them in

safe custody until their production in court. vii. Where a suspect is in custody, the I.O. should inform the expert and request an early preliminary report. viii. Where there is a documentary exhibit that does not require expert opinion, the Investigating Officer shall keep

copies in the file and produce the originals in court. ix. Only a court may determine when an exhibit may be released to an interested party. x. Exhibit shall be stored wherever possible with the Department of National Parks and Wildlife. The I.O. shall ensure

he obtains a nominated point of contact at the Department who shall take responsibility for storage of those exhib-its. Wherever that Department officer hands over responsibility to another officer, he shall record the time, date and name of that handover in the occurrence book. That new officer shall bear the same responsibility and duty on any subsequent handover. This information must be supplied to the I.O.

xi. In any case where any exhibit is lost or misappropriated or altered or manipulated in any way or at any time, the Directorate of Public Prosecutions shall direct a robust investigation with a view to identifying and charging the responsible party.

xii. Where the exhibit lost in (xi) above concerns ivory or rhino horn, the Directorate of Public Prosecutions shall pri-oritize the direction of that investigation.

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OFFENCES UNDER THE WILDLIFE CONSERVATION AND NATIONAL PARKS ACT, CHAPTER 38:01

Unauthorised Entry

s7(1) Entry into a national park without authorisation Penalty found in s11(2): P2,000 fine and 2 years imprisonment

Points to prove Ancillary powers

Date and location of the offence

The national park must be identified

Presence of the accused within that national park

See s72(4) (below) for presumptions regarding authorisation.

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of asthe Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014).

s79 For second conviction (for any offence under this Act) increase maximum penalty by 50%.

If the accused has any permit issued under this Act, s75(2) cancels that permit/author-ity unless court orders otherwise.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the department of national parks confirming the status of the area as a national park, a statement from the arresting officer including interview and evidence of first response from the accused (see guidance notes on interviews).

S72(4): there is a presumption that the accused had no authorisation. The burden of proof will shift to the accused to show he had permission to be in that national park.

Consider whether any legal precedent is set as to the state of mind (mens rea) required under this provision, particularly in areas where the boundaries of the national park may not be clearly marked. Given the penalty involved, ‘reasonable knowledge’ that the area was a national park may be a requirement. In that case, evidence of notices/signage would be relevant.

STATEMENT OF OFFENCE Entry into a national park without authorisation, contrary to section 7(1) of the Wildlife Conservation and National Parks Act Chapter 38:01, as read with Section 11 (2) of the same.

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], entered into a national park namely [identify the relevant park] without authorisation.

Prohibited acts/weapons/hunting of ANY species

s8(1) Carrying out a prohibited act within a national parkPenalty found in s11(2): P2,000 fine and 2 years imprisonment AND

s11(1) for Killing, Hunting or Capturing an animal in a national park (s8(1)(b)): P10,000 and 7 years imprisonment

Points to prove Ancillary powers

1. (a) conveyed into or was in possession of any weapon, explosive, trap or poison (see pre-sumption at s72(15)).

2. (b) without lawful excuse was in possession of, or killed, hunted, injured, captured or dis-turbed any animal, or took or destroyed any egg or nest. NOTE: For actual killing/hunting or capture, charge s11(1) alone and for rhi-nos and elephants, see s67

3. (c) caused, damaged OR caused disturbance to an object of geological, ethnological, historical, archaeological or of scientific interest OR re-moved the same from the park – see presump-tion at s72(16)

4. (d) introduced a wild or domestic animal or fish or vegetation to enter; OR allowed a domestic animal to stray into the park.

5. (e)   removed any animal or vegetation or part thereof, alive or dead;

6. (f)  cut, damaged or destroyed trees or vegeta-tion within;

7. (g)   erected a structure, permanent or other-wise, or made any road or airstrip or in some way altered the natural environment;

8. (h)  destroyed or defaced an object within 9. (i)  caused a wild fire either deliberately or neg-

ligently (negligence = foreseeable risk that the accused went on to take).

Note presumption of absence of authorisation in s72(4) and s72(1) and presumption of possession under s72(3)

For offences under s8 a) or s8(c) to s8(i), forfeiture of any item connected with the offence e.g. car, weapon, boat, aircraft, SHALL be forfeited to the State.

For offences under s8 b), s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s79 For second conviction (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

If the accused has any permit, licence or authority issued under this Act, s75(2) cancels that permit/authority unless court orders otherwise.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; answers on arrest; a statement from a wildlife officer in relation to the absence of authorisation; photographic evidence. For poisons and weapons, may need expert testimony. The presumptions under s72 are crucial; prosecutors must be familiar with them.

STATEMENT OF OFFENCE Carrying out a prohibited act in a national park, contrary to section 8(1) as read with section 11(2) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], entered into a national park namely [identify the relevant park] and whilst within that national park, he carried out a pro-hibited act, namely: specify (a) OR (b) if related to possession/injury, disturbance of an animal, nest or egg OR (c) to (i) above.

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Illegal mining/prospecting

s10 Illegal mining/prospecting within a national parkPenalty found in s11(2): P2,000 fine and 2 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence

Identify the area as a ‘national park’

The accused was, or had caused there to be mining or prospecting within that national park

OR

He acquired rights to do so under the Mines and Minerals Act

He was doing so AFTER the date on which the area had been declared a national park.

Note : Presumption of absence of “written permission of the Minister” – s72(4)

s75 Forfeiture of anything used in connection with the commission of the offence. Items forfeited to ‘the State’ to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014).

s79 For second conviction( for any offence under this Act) increase maximum penalty by 50%.

If the accused has a permit, license or authority issued under this Act, s75(2) cancels that permit/authority unless court orders otherwise.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; Investigating Officer’s (I.O.) testimony; expert witness evidence in relation to the nature of the enterprise may be relevant; whilst the presumption that the accused had no authorisation will operate, consider if a statement from the Minister confirming absence of permission is worth obtaining in advance. Where an accused had authorisation, the date on which that authorisation may be relevant i.e. if acquired BEFORE the area was declared a national park then the written permission of the Minister may not be necessary.

STATEMENT OF OFFENCE Mining/prospecting within a national park without permission, contrary to sec-tion 10 as read with section 11(2) f the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date] at [location] that being a national park, conducted mining/prospecting/acquired prospecting or mining rights [delete as appropriate] without written permission from the Minister.

Killing/Hunting/Capture in a National Park

s11(1) Killing, hunting or capturing any animal within a national parkP10,000 fine and 7 years imprisonment

NB. Note separate penalties for hunting elephants and rhinos (see below)

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence

Identify the area as a ‘national park’

Identify the species.

That the accused was engaged in hunting that animal or had killed or captured it.

‘Hunting’ defined as: to kill, injure or follow or to wil-fully disturb or molest by any method or to lie in wait for or search for with intent to kill, injure or shoot.

Presumption of absence of authorisation operates under s72(4)

Presumptions relating to possession – s72(1) and s72(3)

Presumptions relating to the species of the animal – s72(9)

Also note s72(7) – if found ‘near’ the park and is in possession of an animal, can presume he committed the offence IN the park.

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons.

If the accused has a permit, license, authority issued under this Act, s75(2) cancels that permit/authority unless court orders otherwise.

s79 For second conviction (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the arresting officer; expert witness evidence in relation to the nature of any particular weapon e.g. if a firearm is present, also consider charging under the Arms and Ammunitions Act; a statement from the Director in relation to the absence of any permit granted. This offence should be charged in preference to section 8(1) above if there is actual killing/hunting or capture. For injury, disturbance of an animal, nest or egg, charge under s8(1) alone and note the lower penalty under that section.

STATEMENT OF OFFENCE Killing/hunting/capture of an animal within a national park without permission, contrary to section 11 (1) of the Wildlife Conservation and National Parks Act Chapter 38:01.

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [location] that being a national park, killed, hunted or captured [delete as appropriate] an animal, namely [identify species and number] therein without permission.

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Hunting/Killing/Capture in a Game Reserve or Sanctuary

s12(3) Hunting or capturing any animal within a game reserve or sanctuaryP5,000 fine and 5 years imprisonment

NB. Note separate penalties for hunting elephants and rhinos (see below)

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence

Identify the area as a ‘game reserve’ or ‘sanctuary’ as defined in the second schedule.

Identify the species and the gender if relevant to the nature of the breach of the terms of the permit.

That the accused was engaged in hunting that animal, or had killed or captured it.

‘Hunting’ defined as: to kill, injure or follow or to wil-fully disturb or molest by any method or to lie in wait for or search for with intent to kill, injure or shoot.

Where a permit was granted, identify how the condi-tions were breached.

Presumption of absence of authorisation operates under s72(4)

Presumptions relating to possession – s72(1) and s72(3)

Presumptions relating to the species of the animal – s72(9)

Also note s72(7) – if found ‘near’ the park and is in possession of an animal, can presume he committed the offence IN the park

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). . Includes weapons.

If the accused has a permit, license, authority issued under this Act s75(2) cancels that permit/authority unless court orders otherwise.

s79 For second conviction (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the arresting officer; expert witness evidence in relation to the nature of any particular weapon e.g. if a firearm is present, also consider charging under the Arms and Ammunitions Act. Circumstantial evidence may be necessary to prove accused’s intention to hunt where not actually caught in the act e.g. evidence of a hide or weaponry. If caught at night, see offences under s55 though same penalty.

STATEMENT OF OFFENCE Hunting/capture of an animal within a game reserve or sanctuary without permis-sion, contrary to section 12(3) of the Wildlife Conservation and National Parks Act Chapter 38:01.

PARTICULARS OF OFFENC [Name of the accused(s)] on or about the [date], at [location] that being a game reserve/sanctuary [delete as appropriate], hunted or captured [delete as appropri-ate] an animal, namely [identify species, gender and number as relevant to the permit] therein without permission.

Hunting/capturing of an animal – private game reserve

s13 Hunting/capturing any animal within a private game reserveP5,000 fine and 5 years imprisonment

NB. Note separate penalties for hunting elephants and rhinos (see below)

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence

Identify the area as a ‘private game reserve’

Identify the species (and number if applicable) AND

That species was identified within the order that cre-ated the private game reserve.

That the accused was engaged in hunting that animal, or had killed or captured it.

‘Hunting’ defined as: to kill, injure or follow or to wil-fully disturb or molest by any method or to lie in wait for or search for with intent to kill, injure or shoot.

CHECK: whether the hunting/capture/kill was in accordance with any terms and conditions as deter-mined by the President in the original order or by the Director.

Presumption of absence of authorisation operates under s72(4)

Presumptions relating to possession – s72(1) and s72(3)

Presumptions relating to the species of the animal – s72(9)

Also note s72(7) – if found ‘near’ the reserve and is in possession of an animal, can presume he committed the offence IN the reserve

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons.

s79 For second conviction (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit

If the accused has any permit, license or authority issued under this Act, s75(2) cancels that permit/authority unless court orders otherwise.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the arresting officer; expert witness evidence in relation to the nature of any particular weapon e.g. if a firearm is present, also consider charging under the Arms and Ammunitions Act; the order creating the private game reserve should be properly exhibited.

STATEMENT OF OFFENCE Hunting/capture of an animal within a private game reserve without permission, contrary to section 13(3) of the Wildlife Conservation and National Parks Act Chapter 38:01.

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [location] that being a private game reserve, hunted or captured [delete as appropriate] an animal, namely [iden-tify species and number] therein, in breach of the terms and conditions issued by the President.

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Hunting/Capture in a Controlled Hunting Area

s16(3) Hunting or capturing any animal within a controlled hunting area without authoritys16(6) P2,000 fine and 2 years imprisonment

s16(5) Failing to report a hunt in a controlled hunting areaPenalty P500 and 6 months imprisonment

NB. Note separate penalties for hunting elephants and rhinos

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence

Identify the area as a ‘controlled hunting area’

Identify the accused (and number if applicable)

That the accused was engaged in hunting or captur-ing that animal. ‘Hunting’ defined as: to kill, injure or follow or to wilfully disturb or molest by any method or to lie in wait for or search for with intent to kill, injure or shoot.

Note: Presumption re: absence of authority under s72(4)

OR

The accused had failed to report the hunt within 7 days to an authorised wildlife officer AND he had no exemption from this requirement endorsed on his li-cense from a licensing officer.

Note: Presumption re: failing to report under s72(10).

For s16(3) offence (hunting/capture), s75 anything used in connection with the commission of the offence SHALL be forfeited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons.

For s16(5) (failing to report), forfeiture does not apply. s76 can plead guilty in writing

s79 For second conviction (for any offence under the Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the arresting officer; expert witness evidence in relation to the nature of any particular weapon.

STATEMENT OF OFFENCE Hunting/capture of an animal within a controlled hunting area without permis-sion, contrary to section 16(3) as read with s16(6) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [location] that being a controlled hunting area, hunted/captured [delete as appropriate] an animal, namely [identify species and number] therein without permission/without having paid appropriate fees/in breach of conditions of authority [delete as appropriate].

STATEMENT OF OFFENCE Failure to report a hunt within a controlled hunting area, contrary to section 16(5) of the Wildlife Conservation and National Parks Act Chapter 38:01.

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [location] having hunted an an-imal namely [identify species and number] within a controlled hunting area, namely [identify the area], without exemption from any reporting requirement from a licens-ing officer, failed to report that hunt to a wildlife officer within 7 days of completion of that hunt.

Hunting/capture of a protected game animal or Rhino

s17 Hunting or capturing a protected game animalP10,000 fine and 7 years imprisonment

For rhino: 100,000P and 15 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence

Identify the species (and number if applicable).

That the accused was engaged in hunting that animal, or captured it.

‘Hunting’ defined as: to kill, injure or follow or to wil-fully disturb or molest by any method or to lie in wait for or search for with intent to kill, injure or shoot.

s72(4) Presumption that no permit issued under s39 or s40.

Because the species of the animal is relevant as a ‘point to prove’, note the presumption at s72(6) i.e. where the meat/hide or skin/ might be unidentifiable, there is a presumption that it was the hide or skin or meat of that specific animal.

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons.

If the accused has any permit, license or authority issued under this Act, s75(2) cancels that permit/authority.

s79 For second conviction (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the arresting officer; expert witness evidence in relation to the nature of any particular weapon or causation of death if disputed. Expert/forensic evidence may be required if nature of the species is in dispute.

STATEMENT OF OFFENCE Hunting/capture of a protected game animal, contrary to section 17(2) of the Wildlife Conservation and National Parks Act Chapter 38:01.

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [location] killed, hunted or cap-tured [delete as appropriate] a protected game animal, namely [identify species and number] therein without a permit issued by the Director

STATEMENT OF OFFENCE Hunting/capture of a protected game animal, namely a rhinoceros, contrary to section 17(2) of the Wildlife Conservation and National Parks Act Chapter 38:01.

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [location] killed, hunted or cap-tured [delete as appropriate] a rhinoceros without a permit issued by the Director.

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Hunting/capture of animals – partially protected/seventh schedule/non designated/ELEPHANT

s19 Hunting or capturing an animal without a licence or permits19(3)(a) Partially protected game animal: P5,000 fine and 5 years

If an ELEPHANT: P50,000 and 10 yearss19(3)(b) Part II Seventh Schedule animal: P2,000 fine and 2 years

s19(3)(c) Part II Seventh Schedule bird: P1,000 fine and 1 years19(3)(d) Any other non-designated animal: P500 fine and 6 months

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence

Identify the species (and number if applicable).

That the accused was engaged in hunting that animal, or captured it. ‘Hunting’ defined as: to kill, injure or follow or to wilfully disturb or molest by any method or to lie in wait for or search for with intent to kill, injure or shoot.

No licence had been issued OR where a licence had been issued, the terms or conditions had been breached (one must identify how that beach occurred).

Note presumption under s72(4) re: absence of au-thority/license or permission.

Because the species of the animal is relevant as a ‘point to prove’, note the presumption at s72(6) i.e. where the meat/hide or skin/ might be unidentifiable, there is a presumption that it was the hide or skin or meat of that specific animal.

For convictions under s19(3) a) and b), s75 anything used in connection with the commission of the offence SHALL be forfeited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons.

If convicted of an offence under s19(3) a)b) or c), and where the accused has any per-mit, license or authority issued under this Act, s75(2) cancels that permit / authority.

s79 For second conviction (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit for a conviction un-der s19(3)(a).

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

s76 can plead guilty in writing to a section 19(3)(d) offence

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the arresting officer; expert witness evidence in relation to the nature of any particular weapon or causation of death if disputed and possibly the nature of the species if disputed. Note: a citizen of Botswana may capture a ‘non-designated’ animal for consumption without a licence, except for in a national park or game reserve. Accordingly, if s19(3)(d) is invoked, consider the purpose for hunting, the area in which the hunting took place and the nationality of the offender before charging

STATEMENT OF OFFENCE Hunting/capture of an animal otherwise that in accordance with a licence, con-trary to section 18(1)/s19(1) (delete as appropriate) as read with section 19(3)(a) (b) (c) (d) of the same [delete as appropriate] of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [location] killed, hunted or cap-tured [delete as appropriate] an animal, namely [identify species and number] that animal being partially protected/an animal or bird listed under the Seventh Schedule of this Act (delete as appropriate), otherwise than in accordance with a license.

Killing Schedule 8 Animals in Excess of Specified Numbers

s20(5) Killing a Schedule 8- listed animal in excess of specified numbers whilst enjoying landholder’s privilegess20(6) P500 fine and 6 months imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence

The location was one with regard to which the ac-cused held ‘landholder’s privileges’ under s20.

Identify the species (and number if applicable) and confirm it is specified within Schedule 8 of the Act.

Confirmation that the numbers killed were in excess of that specified within the second column of sched-ule 8 AND

The period over which they were killed falls within the third column of Schedule 8.

Note presumptions re: possession and under hunt-ing s72(1) and s72(3); and re: excess numbers under s72(2).

s76 can plead guilty in writing

s79 For second conviction (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the arresting officer; expert witness evidence in relation to the nature of any particular weapon or causation of death if disputed. The burden of proving that the accused DID comply with the terms of any permit shall lie upon the accused – see section 72(5).

STATEMENT OF OFFENCE Killing a listed species in excess of permitted numbers, contrary to section 20(5) as read with section 20(6) of the Wildlife Conservation and National Parks Act Chapter 38:01.

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date] (or identify range of dates e.g. be-tween 1 June 2016 and 15th June 2016), at [location], being a person entitled to enjoy landholder’s privileges in respect of that location, killed, hunted or captured a species listed in Schedule 8, namely [specify species and numbers], that being in excess of per-mitted numbers of species that can be killed or hunted or captured in the period spec-ified in Column 3 of Schedule 8.

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Authorising others to hunt or kill without a permit or license

s20(8) Being entitled to landholder’s privileges and authorising another to hunt or kill without a permit or licenceP500 fine and 6 months imprisonment

(see also authorising another to hunt for profit under s21)

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence

The accused held ‘landowner’s privileges’ under s20 over that location.

Identify the species.

That another hunted or killed that animal within that location

The hunter of that species had no permit or license.

That he had permission of the accused to hunt/kill on his land AND

The accused failed to take reasonable steps to con-firm that the hunter had a valid permit or licence.

s76 can plead guilty in writing

s79 For second conviction (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the arresting officer; expert witness evidence in relation to the nature of any particular weapon or causation of death if disputed. Statement from the hunter that he was given permission by the accused. In reality, this may be unlikely where the hunter himself is exposed to criminal liability and so other circumstantial evidence may be required e.g. means of access, any written communication giving that authority e.g. texts, emails etc. Consider the appropriate charge for the hunter himself.

STATEMENT OF OFFENCE Permitting another to hunt without a licence, contrary to section 20(8) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF THE OFFENCE [Name of the accused(s)] on or about the [date], at [location] being a person entitled to enjoy landholder’s privileges in respect of that location allowed another to kill or hunt an animal namely (identify the species) at that location, without taking reasonable precautions to ensure that person held a valid licence or permit to so do.

Authorising others to hunt or kill without a permit or license FOR PROFIT

s21 Being entitled to landholder’s privileges and authorising another to hunt or kill with-out a permit or license for the purposes of making a profit.

P500 and 6 months

POINTS TO PROVE ANCILLARY POWERS

Date and Location

The accused held ‘landholder’s privileges’ under s20 in relation to that location.

The accused had authority of the Director to hunt and authorise others to hunt, for his own profit, within that location.

That another hunted or killed that animal within that location with the authority of the accused

The absence of any license or permit held by the hunt-er of that species (note presumptions under s72(4)).

The accused gave the hunter authority AND

The accused failed to take reasonable steps to con-firm that the hunter had a valid permit or license.

s76 can plead guilty in writing

s79 For second conviction, for (any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; arresting officer, I.O. expert witness evidence re: nature of any particular weapon or causation of death if disputed.

STATEMENT OF OFFENCE Authorising another to hunt for profit without a license, contrary to section s21 of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused] on the [date] at [location], being a person entitled to enjoy landholder’s privileges in respect of that location and having authority to authorise hunts for profit within that land, allowed another to kill or hunt an animal without tak-ing reasonable precautions to ensure that person held a valid license or permit to so do.

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Failing to keep/maintain records of animals killed

s22 Being entitled to landholder’s privileges and failing to keep /maintain a record of animals killed.P500 and 6 months

POINTS TO PROVE ANCILLARY POWERS

Date and Location

The accused held ‘landholder’s privileges’ under s20 in relation to that location.

The accused failed to keep a record of every animal killed in accordance with section 22(2) AND/OR

He/she failed to make that report available to a licens-ing officer in accordance with section 22(3)

s72(10) there is a presumption that the accused failed to report unless the contrary is proved.

s76 can plead guilty in writing

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; arresting officer, I.O. expert witness evidence re: nature of any particular weapon or causation of death if disputed. The burden of proving he maintained a report is upon the accused under section s72(5) and that he failed to report/deliver that report is also upon the accused under s72(10).

STATEMENT OF OFFENCE Failure to keep/make available a record of kills (delete as appropriate), contrary to section s22 of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused] on the [date] at [location], being a person entitled to enjoy landholder’s privileges in respect of that location failed to keep/maintain a record of animals killed with that location/failed to make available to a licensing officer a record of every animal killed (delete as appropriate).

Offences on game farms/ranches

s24 Offences committed on game farms or ranches(4) breaching terms and conditions in relation to hunting for commercial purposes

(6) culling animals without permission or in breach of terms and conditions(8)(b) selling animal, meat or trophies in a manner not approved by the Director

(12) hunting on a game farm or ranch without permission of the owner or occupier

s24(13)P5000 and 5 yearsContravention of any other part of this section: P500 and up to 6 months.

POINTS TO PROVE ANCILLARY POWERS

Date and Location

The location was one that has ‘game ranch or game farm status’ in accordance with sub-section (1).

(4) the accused was farming, ranching, hunting or capturing animals on that land for commercial purposes AND he was in breach of the terms and conditions for the permission granted OR he was farm-ing/ranching or hunting or capturing a protected game animal OR a partially protected game animal on such land without authorisation.

(6) the accused was culling animals without permission/in breach of any terms of permission granted OR he failed to pay the prescribed fees for culling therein.

(8)(b) the accused sold animal, meat or trophies in a manner not ap-proved by the Director

(12) the accused was on a game farm or ranch AND he did not have the permission of the owner or occupier AND he was there for the purposes of hunting or capturing any animal therein.

Note the presumptions that apply under s72 regarding authorisa-tions (s72(4) and where the species is relevant (e.g. under s24(4) protected or partially protected game animal); also note the pre-sumptions under s72 (3) and s72(6).

s24(3) any permission to operate a game farm or ranch may be with-drawn by the Director if convicted or in contravention of the terms of the permission granted.

For breaches under s24(4)(6)(8) and (12):

s75 Anything used in connection with the commission of the offence SHALL be forfeited to the State to be disposed of as the Minister di-rects subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons.

If the accused has any permit, license or authority issued under this Act, s75(2) cancels that permit/authority.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecu-niary benefit

For all offences: s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; arresting officer, I.O. exhibit any permit issued by the Director and identify which terms/conditions if any have been breached. Note the presumptions that operate in determining the standard for charging.

STATEMENT OF OFFENCE Farming/ranching/hunting/capturing of animals within a game farm or ranch without authorisation, contrary to section 24(4) as read with s24(13) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused] on the [date] at [location], being a person granted permission to farm, ranch, hunt or capture a protected/partially protected game animal OR farmed, ranched, hunted or captured animals for commercial purposes (delete as appropriate) and in so doing, failed to comply with the terms and condi-tions granted in accordance with that permission in that (specify the particulars of the breach).

STATEMENT OF OFFENCE Culling animals within a game farm/game ranch without authority, contrary to section 24(6) as read with section 24(13) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused] on the [date] at [location], being a person granted permission to farm, ranch, hunt or capture animals for commercial purposes within that location, engaged in the culling of animals namely (identify number and species) otherwise than in accordance with authority issued by the Director under section 24(6) of this Act, in that (specify particulars of the breach).

STATEMENT OF OFFENCE Disposing of animals, meat or trophies without authorisation, contrary to section 24(8)(b) as read with section 24(13) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused] on the [date] at [location], being a person granted permission to farm, ranch, hunt or capture animals for commercial purposes within that location, engaged in the sale of animals/meat or trophies (delete as appropriate and identify number and species) in a manner not approved by the Director.

STATEMENT OF OFFENCE Hunting/capture of animals on a game farm or ranch without authority, contrary to section 24(12) as read with section 24(13) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused] on the [date] at [location] being a designated game farm/ranch (delete as appro-priate) hunted/captured/intended to hunt/capture (delete as appropriate) any animal therein without the permission of the owner/occupier thereof.

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Misrepresentation on license applications

s32(3) Making a false/misleading statement in connection with an application for a licenceP1,000 fine and 1 year imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date of the offence

The accused made a statement in connection with a licence application (written or verbal)

That the statement was false/misleading

That the accused knew or ought to have known it was false or misleading.

That it led or was likely to lead to the accused being issued with more licences OR that it led or is likely to lead to the issuing of a licence purporting to entitle him to hunt more animals than he is entitled to hunt.

If it did in fact lead to him being issued more licens-es or a higher number of animals to hunt, that the li-censing officer relied upon his statement will require proof.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Documentary evidence of any statement made; a statement from an individual (official or otherwise) attesting to the falsity of the statement; any admissions made or arrest or in interview, the licence(s) issued; a statement from the licensing official who deal with the application(s).

STATEMENT OF OFFENCE Making a false/misleading statement in connection with an application for a li-cence, contrary to section 32(3) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], made a false/misleading [delete as appropriate] statement in connection with the application for a licence to hunt, which led to/was likely to have led to [delete as appropriate] the issuing of more than one licence/a licence purporting him to hunt more animals than he is entitled to hunt [delete as appropriate]

Misrepresentation on license applications

s33(2) Failing to inform a licensing officer of material facts or making a false declaration in connection with an application for a licence under the Wildlife Conservation and National Parks Act Chapter 38:01

P1,000 fine and 1 year imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence

The accused failed to inform the licensing officer of one or more of the following:

of any fact which might disqualify him for the grant of a licence; or

that he has previously been refused any licence

makes a declaration AND that declaration was false

in connection with the application for any licence un-der this Act.

The person informed was a licensing officer

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Documentary evidence of any declaration made; a statement from an individual (official or otherwise) attesting to the falsity of the declaration; proof of any previous licence applications; any admissions made or arrest or in interview; a statement from the licensing official who deal with the application(s).

STATEMENT OF OFFENCE Failing to inform the licensing officer of any fact which might disqualify him from the grant of a licence, contrary to section 33(2) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)], on or about the [date], failed to inform the licensing of-ficer of any fact that might disqualify him from the grant of a licence, in connection with an application for a licence under the Wildlife Conservation and National Parks Act 38:01, namely (identify the failure)

STATEMENT OF OFFENCE Failing to inform the licensing officer that he has previously been refused any licence, contrary to section 33(2) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)], on or about the [date], in connection with an application for a license under the Wildlife Conservation and National Parks Act 38:01 failed to inform the licensing officer that he had previously been refused a licence under the same Act.

STATEMENT OF OFFENCE Making a false or misleading declaration in or in connection with the application for a licence, contrary to section 33(2) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], made a false/misleading [delete as appropriate] declaration in or in connection with the application for a licence.

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Hunting Card Offences

s34 Offences in relation to hunting cards.s34(6)(a) Making a false statement to a licensing officer for the purpose of obtaining a hunting card;

s34(6)(b) Using another person’s hunting card;s34(6)(c) obtains or attempts to obtain another person’s hunting card;

s34(6)(d) fails to record on it information or recording misleading information; ors34(6)(e) refuses or fails to produce his hunting card for inspection

P500 fine and 6 months imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused does one or more of the following:

a. made a statement to a licensing officer for the purpose of obtaining a hunting card; AND he knew it was false.

b. used another person’s hunting card (speci-fy the name of that person);

c. obtained or attempted to obtain another person’s hunting card;

d. failed to record information on their hunt-ing card that they were required to record or recorded thereupon misleading informa-tion; OR

e. refused or failed to produce his hunting card for inspection when requested by a wildlife officer or whenever the licence holder applied for another licence.

Note presumptions under s72(10)

s76 can plead guilty in writing

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%.

s33(1) disqualification from grant of a license under this Act for 3 years from date | of conviction.

Evidence: likely to include but not limited to: A statement from the licensing officer; in the case of (b) and (c) a statement from the licence holder; a statement from the wildlife officer in the case of (e); a copy of the hunting licence and/or application form.

STATEMENT OF OFFENCE Making a false or misleading statement for the purpose of obtaining a hunting card, contrary to section 34(6)(a) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], made a false/misleading [delete as appropriate] statement for the purpose of obtaining a hunting card.

STATEMENT OF OFFENCE Used another person’s hunting card, contrary to section 34(6)(b) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], used the hunting card belonging to another person namely, [Insert name].

STATEMENT OF OFFENCE Obtaining or attempting to obtain another person’s hunting card, contrary to section 34(6)(c) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], obtained / attempted to obtain [delete as appropriate] the hunting card of another person, namely [insert name].

STATEMENT OF OFFENCE Failing to record or recording misleading information on a hunting card, contrary to section 34(6)(d) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date] failed to record on their hunting card, information that was required to be recorded thereupon/recorded on their hunting card information that was false or misleading [delete as appropriate] name-ly [insert particulars recorded on the card]

STATEMENT OF OFFENCE Refusing or failing to produce a hunting card for inspection, contrary to section 34(6)(e) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], refused/failed [delete as appro-priate] to produce their hunting card for inspection as required by a Wildlife Officer/on the application for a new licence [delete as appropriate]

Failing to report loss of license

s37 Failing to report the loss or destruction of a licenceP500 fine and/or 6 months imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date of the offence;

That the accused’s licence was lost or destroyed;

That the accused failed to report the loss or destruc-tion to the licensing officer who issued the licence within 21 days AND/OR

That the accused failed to furnish the licensing of-ficer with a written statement setting out to the best of his recollection the entries that had been recorded in the register attached to the licence, or, but for the loss or destruction would have been re-corded therein.

Note the presumptions re: reporting under s72(10) and the burden of proof upon the accused under s72(5)

s76 can plead guilty in writing

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: A statement from the licensing officer; eyewitness evidence as to the loss or destruction of the licence; records of any communication with the licensing officer and any documents provided to the licensing officer. The 21-day time limit may be problematic in terms of proving exactly when the license holder became aware of his loss or the destruction of the license.

STATEMENT OF OFFENCE Failing to report the loss/ destruction of a licence (delete as appropriate), contrary to section 37 of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], failed to report the loss/destruc-tion [delete as appropriate] of a licence AND/OR failed to furnish the licensing offi-cer with a written statement detailing the records which out to have been recorded on the licence [delete as appropriate].

STATEMENT OF OFFENCE Failing to produce a statement to a licensing officer contrary to section 37 of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], having suffered a loss/destruction [delete as appropriate] of a licence, failed thereafter to furnish the licensing officer with a written statement detailing the records which ought to have been recorded on the licence.

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Failing to maintain a register

s38 Failures in relation to the keeping and maintaining a register of animals killed P500 fine and 6 months imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused was a game licence holder.

That the game licence holder did one or more of the following:

failed to keep or maintain a register OR failed to submit a return within the specified period (i.e. within 30 days of the termination of hunting, or the termination of his licence or the termination of the hunting season, whichever is soonest);

failed to record in the register or return, something that he is required to record therein;

made, or is party to the making of, any false entry therein;

failed to produce his register upon the request of a licensing officer or any other person entitled under the Act to request its production; or

failed to furnish a true copy of his register to a licensing officer within 21 days of being requested to do so by a licensing officer.

Note the presumptions re: reporting under s72(10) and the burden of proof upon the accused under s72(5)

s76 can plead guilty in writing

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%.

s33(1) disqualification from grant of a license un-der this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: a statement from the licensing officer; copies of the game licence and register (if available); proof that the individual is a game licence holder such as copies of the records relating to the application for and granting of his licence; eye-witness evidence of any animals killed; a statement from the Investigating Officer.

STATEMENT OF OFFENCE Failing to keep or maintain a register or submit a return [delete as appropriate], contrary to section 38(4)(a) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], failed to keep or maintain a register of animal killed OR failed to submit a return [delete as appropriate] within 30 days of the termination of hunting, or the termination of his licence or the termination of the hunting season [delete as appropriate].

STATEMENT OF OFFENCE Failing to record information in a register attached to a game licence, contrary to section 38(4)(b) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], failed to record information namely (identify the information) within the register attached to his game licence issued under by Section 38(2).

STATEMENT OF OFFENCE Making false entries in a register attached to a game licence, contrary to section 38(4)(c) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], whilst in possession of a game license issued under the Act, made or was party to the making of [delete as appropriate] false entries in the register attached to that game licence.

STATEMENT OF OFFENCE Failing to produce the register attached to a game licence, contrary to section 38(4)(d) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], failed to produce the register attached to his game licence upon the request of the licensing officer OR any other person entitled to request it’s production under the Wildlife Conservation and National Parks Act Chapter 38:01, namely [identify individual] [delete as appropriate whether it is a licensing officer or some other person].

STATEMENT OF OFFENCE Failing to furnish a true copy of the register attached to a game licence, contrary to sec-tion 38(4)(d) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], failed to furnish a true copy of the register attached to his game licence, within 21 days of being requested to do so by a licensing officer.

Failing to comply with the terms of a permit

s41(1) Failing to comply with the terms of a permit P1000 fine and 1 year imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date of the offence;

The accused was a permit holder under the Act (iden-tify the nature of the permit issued)

That the permit contained terms or conditions or requirements issued in accordance with regulations issued by the relevant authority (e.g. the Minister)

That the terms were breached (identify which terms and how the breach occurred)

Note the presumptions re: the burden of proof upon the accused under s72(5)

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%.

s33(1) disqualification from grant of a license under this Act for 3 years from date| of conviction

Evidence: likely to include but not limited to: copies of the correspondence from the Minister informing the individual that the permit must be returned/date of service of the notice; a statement from the arresting officer; copies of the individual’s permit.

STATEMENT OF OFFENCE Failing to comply with the terms of a permit, contrary to section 41(1) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], having been issued with a permit in accordance with this Act, failed to comply with the terms, conditions, requirements {delete as appropriate} contained therein, in particular [identify the terms and the na-ture of the breach)

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Failing to return a permit

s41(4) Failing to return a permit P500 fine and 6 months imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date of the offence;

The accused was a permit holder under the Act (iden-tify the nature of the permit issued)

That the accused was required to return the permit under Section 41(3) i.e. that he was informed by the Minister that he must return it for cancellation, mod-ification or amendment.

That the 21-day time period for returning the permit has elapsed

Note the presumptions re: reporting under s72(10) and the burden of proof upon the accused under s72(5)

s76 can plead guilty in writing

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: copies of the correspondence from the Minister informing the individual that the permit must be returned/date of service of the notice; a statement from the arresting officer; copies of the individual’s permit.

STATEMENT OF OFFENCE Failing to return a permit, contrary to section 41(4) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], having been requested to return his permit to the Minister for cancellation, amendment or modification [delete as appropriate], failed to so do within the 21 days of having been so informed.

Professional Guides

s43(1) Acting as a professional guide without a licenceP2,000 fine and 2 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused was working as a professional guide:

“professional guide” means any person, other than a tracker, driver, beater, bearer or domestic servant who, for hire or reward, conducts or assists any other person or party for the purpose of visiting, viewing or photographing animals or places of interest or beauty, or of botanical, historical, geological, eth-nological or archaeological significance, or for the purpose of sport fishing, but which purpose shall not include the hunting or capture of animals

Absence of any valid license to act as a professional guide.

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). E.g. vehicle.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; statement from the arresting officer; a statement from the licensing off-cier in relation to the absence of a licence.

STATEMENT OF OFFENCE Acting as a professional guide without a licence, contrary to section 43(1) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date] at [identify location], acted as a professional guide without a valid licence so to act.

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Professional Guides

s43(4) Transfer of a professional guide’s licence P2,000 fine and/or 2 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

The accused held a professional guide’s licence;

That the accused transferred that license to another

Identify of that other person

OR

That the accused who is not the licence holder was acting as a professional guide under the authority of that licence.

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). E.g. a vehicle.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the licensing officer; a statement from the licence hold-er and transferee of the licence; a statement from the arresting officer; photographic or video evidence.

STATEMENT OF OFFENCE Transferring a professional guide’s licence, contrary to section 43(4) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date] at [location], transferred his profes-sional guide licence [insert license number] to [identify the transferee of the licence].

STATEMENT OF OFFENCE Operating under the authority of a professional guide licence without authori-ty, contrary to section 43(4) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [location] operated as a profes-sional guide under the authority of a professional guide licence [insert license num-ber] belonging to another, namely [insert the identity of the license holder]

Professional Hunters

s44(1) Acting as a professional hunter without a licenceP5,000 fine and 5 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused was acting as a professional hunter;

“professional hunter” means any person who, for hire or reward, conducts hunting or photographic parties, or any person other than a tracker, driver, beater, bearer or domestic servant who, for hire or reward, assists any person or party in the hunting or photographing of any animal;

The absence of a licence to act as a professional hunter but note the presumption re: authority under s72(4).

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s77(2), may seek a confiscation order under the Proceeds and Instruments of Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; statement from the licensing officer and the arresting officer.

The seriousness of this offence is reflected in the penalty and the ancillary orders available that include forfeiture and confiscation of the proceeds of crime.

STATEMENT OF OFFENCE Acting as a professional hunter without a licence, contrary to section 44(1) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [identify location] acted as a professional hunter without a licence so to act.

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Professional Hunters

s44(4) Transfer of a professional hunter’s licence P2,000 fine and 2 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

Identity of the individual who owns the professional hunter’s licence;

That the suspect was acting under the authority of that license that had been issued to the person iden-tified above.

OR

That the licence had been transferred by the license holder to another (identify to whom) (i.e. penalise the transferor).

That the individual who is not the licence holder was acting as a professional hunter under the authority of that licence (in which case, charge under s44(1)

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the licensing officer; a statement from the licence hold-er and transferee of the licence; a statement from the arresting officer; photographic or video evidence.

CHARGE COUNT ONE Transferring a professional hunter’s licence, contrary to section 44(4) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], transferred his professional hunter licence to [identify the transferee of the licence].

CHARGE COUNT ONE Operating under the authority of a professional hunter’s licence issued to another , contrary to section 44(4) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], operated as a professional hunter under the authority of a professional hunter licence belonging to [identify the licence holder] when he was not in fact authorised to so do

Breaching Hunter’s Licenses

s44(6) Shooting an animal in breach of the hunter’s licenseP5,000 fine and 5 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused held a professional hunter’s license

That he/she shot an animal

That species of animal was not authorised under the license

Note: If self-defence under section 47 is raised or the accused maintains he was shooting a wounded animal to prevent its escape, the burden is upon the accused to prove as much.

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s77(2), may seek a confiscation order under the Proceeds and Instruments of Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the arresting officer; photographic or video evidence; expert evidence in relation to any weapon used and/or the injuries sustained by the animal.

STATEMENT OF OFFENCE Shooting an animal in breach of a hunter’s license, contrary to section 44(6) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [identify the location], having been issued with a hunter’s license, shot an animal, namely [identify species and num-ber], that species of animal not being specified within the terms of that license.

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Breaching Hunter’s Licenses

s44(8) Failing to inform a client of the terms and conditions of a professional hunt-ing licence/ failure to notify of any contravention thereof by a client

P5,000 fine and 5 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

The accused had a professional hunter’s license

That the licence holder failed to take all reasonable steps to ensure that his client understood of the terms and conditions of his licence or permit or the provisions of this Act (if his client is convicted of any offence under the Act then it shall be presumed that the professional hunter failed to take all reasonable steps to ensure the client understood the terms and conditions of his licence or permit – see s44(8)(c);

OR

Knowledge that the client contravened EITHER the terms and conditions of the licence OR any provision of the Wildlife Conservation and National Parks Act Chapter 38:01 AND

That he failed to report such a contravention by his client to a wildlife officer. Note the presumption re: failure to report under s72(10)

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s77(2), may seek a confiscation order under the Proceeds and Instruments of Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the arresting officer; a statement from the client and the licence holder; photographic or video evidence; expert evidence in relation to any weapon used and/or the injuries sustained by the animal.

STATEMENT OF OFFENCE Failing to inform the client of the terms and conditions of a professional hunt-ing licence or permit [delete as appropriate], contrary to section 44(8) of the Wildlife Conservation and National Parks Act Chapter 38:01.

PARTICULARS OF OFFENCE [Name of the accused(s)], being a professional hunter licenced under the Wildlife Conservation and National Parks Act Chapter 38:01, on or about the [date], failed to take all reasonable steps to ensure that his client, namely (identify) understood the terms and conditions of his licence or permit [delete as appropriate]

STATEMENT OF OFFENCE Failing to inform a wildlife officer of a contravention by his client, contrary to section 44(8) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] being a professional hunter licenced under the Wildlife Conservation and National Parks Act Chapter 38:01, on or about the [date], failed to inform a wildlife officer of a contravention by his client [identify client’s name] of the terms and conditions of the licence issued to [insert client’s name] OR of [identify relevant provision] of the Wildlife Conservation and National Parks Act Chapter 38:01 [delete as appropriate].

Hunting a prohibited animal

s45(2) Hunting, capture, disturbance or removal of a prohibited animal from a defined areaP2,000 and 2 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the location was a ‘defined area’ by way of Ministerial Gazette

That the accused hunted, captured, disturbed or re-moved an animal from that defined area

The animal was a ‘prohibited animal’ as defined by way of that same Ministerial Gazette notice. See s45(1)

Nb. Any disturbance must be wilful.

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: Eyewitness evidence; exhibiting statement in relation to the Gazette notice (may the judiciary take judicial notice?); a statement from the arresting officer; photographic or video evidence; expert evidence in relation to any weapon used.

STATEMENT OF OFFENCE Unauthorised hunting, capture, removal or wilful disturbance of a prohibited an-imal within a defined area, contrary to section 45(2) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [identify location] that being an area defined by an order issued under Section 45(1) of the Wildlife Conservation and National Parks Act, Chapter 38:01, hunted, captured or wilfully disturbed [delete as appropriate] an animal, namely [identify species and number], the hunting or dis-turbance of which was prohibited.

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Killing in defence

s46(6) Killing of animals causing damage P1,000 and 1 year imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused did one or more of the following:

killed an animal in defence of property or livestock, fences, crops or water installation AND

used a poisoned weapon, pitfall or snare OR

OR killed an animal in defence of property or livestock, fences, crops or water installation AND

Did so in a national park or game reserve

OR

failed to report the killing of an animal in accordance with section 46(2) (i.e. the person must report the circumstances of the killing as soon as possible, and in any event not later than 7 days after the killing, to the nearest wildlife officer or police station and de-livers the trophies of the animal);

OR

used, retained or disposed of any trophy or meat of the animal so killed otherwise than in accordance with this section of the Act (namely without having a permit issued after reporting the killing).

See notes below

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s79 For second conviction, (for any offence under this Act) increase max-imum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the arresting officer; a statement from the individual concerned; photographic or video evidence; a statement from the wildlife officer; expert evidence as to how and when the animal was killed if poison was used or some other weapon, expert evidence may be required to establish the nature of the weapon and cause of death if a poison.

Where a protected species or partially protected species is concerned e.g. rhino or elephant, prosecutors should be alert to provisions such as section s67 for example (failure to produce the tusks or rhino horn to a licensing officer) as the penalty is much higher as defence of property or self defence may be used by poachers to avoid the higher penalties therein.

STATEMENT OF OFFENCE Unlawful killing of an animal causing damage, contrary to section 46(6)(a) of the Wildlife Conservation and National Parks Act Chapter 38:01.

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [identify location] killed an animal [identify species] other than in accordance with section 46(1) namely (identify the breach e.g ‘through use of a pitfall’)

STATEMENT OF OFFENCE Failing to report the killing of an animal causing damage, contrary to section 46(6)(b) of the Wildlife Conservation and National Parks Act Chapter 38:01.

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], failed to report the killing of an animal that had been causing damage, namely [identify species and location of the killing] to a wildlife officer or police station within 7 days of the killing of that animal and/or [delete as appropriate] to deliver the trophies of such an animal to a wildlife officer/police station (delete as appropriate).

STATEMENT OF OFFENCE Retention or use of the trophies or meat of an animal killed, contrary to section 46(6)(c) of the Wildlife Conservation and National Parks Act Chapter 38:01.

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], having killed an animal, namely (identify the species) that had been causing damage at [identify location] used, re-tained or disposed of [delete as appropriate] the trophies or meat [delete as appro-priate] of that animal, other than in accordance with section 46.

Reporting offences

s47(3) Reporting and delivery of trophies of animals killed in self-defenceP500 and 6 months imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That a game animal was killed;

That the accused did not have a licence or permit authorising him to kill such an animal (note the pre-sumption that operates under s72(4)) AND

That the accused failed to report the incident to a wildlife officer or police station within 7 days of the killing;

OR

That, if so directed, he failed to deliver the animal (or such parts that are specified) to the wildlife officer or police station.

Presumptions operate under s72(10) regarding re-porting/delivery. Burden of proving the animal was killed in self defence shall lie upon the accused: s47(2).

If rhino or elephant, see section 67 instead – higher penalty.

s76 can plead guilty in writing

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the arresting officer; a statement from the licensing of-ficer in relation to whether the person has a licence or permit to kill the animal; photographic or video evidence; a statement from the wildlife officer; expert evidence as to how and when the animal was killed and any weapons used.

STATEMENT OF OFFENCE Failure to report the killing of an animal in self-defence, contrary to section 47(3) of the Wildlife Conservation and National Parks Act Chapter 38:01.

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], failed to report the killing of an animal [identify species] that was killed in self-defence, within 7 days of the killing of that animal.

STATEMENT OF OFFENCE Failure to deliver the animal killed in self-defence, contrary to section 47(3) of the Wildlife Conservation and National Parks Act Chapter 38:01.

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], having killed an animal in self de-fence, namely a (identify the animal) failed to deliver that animal or such parts of that animal, as was directed to be delivered [delete as appropriate] to a wildlife officer, namely [identify wildlife officer] or police station [identify specified station] [delete as appropriate].

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Reporting offences

s48(4) Killing of animals in accident or error without notificationP1,000 and 1 year imprisonment

S48(4)(a) – if the animal killed is a rhinocerosP100,000 and 15 years imprisonment

S48(4)(b) – if the animal killed is an elephantP50,000 and 10 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

The accused killed the animal ‘by accident or in error’ whilst hunting, AND

The accused had no permit authorising him to hunt that animal

AND

He failed to report the killing to a wildlife officer or police station within 7 days OR deliver the parts thereof to the same

OR

The accused had a license to hunt that animal AND

He failed to record it in the register in accordance with section 38.

OR

The accused killed the animal whilst driving a vehicle upon any road and retrieves the animals (or parts of the animal); AND

That he failed to report the incident to a wildlife officer or police station as soon as possible to the nearest convenient wildlife officer or police station and/or failed to surrender the parts to the same.

Note the presumptions that operate under s72.

Upon s48(4) conviction: ONLY

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

If relating to an elephant or rhino, can ALSO apply:

s75 Anything used in connection with the commission of the offence SHALL be forfeited to the State to be disposed of as the Minister directs subject to the pro-tection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weap-ons and vehicles.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satis-fied the offender has received a pecuniary benefit

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%. If second con-viction for a rhino or elephant, no option of a fine.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the arresting officer; a statement from the individual concerned; photographic or video evidence; a statement from the wildlife officer; expert evidence as to how and when the animal was killed and any weapons used and the species (crucial if elephant or rhino). Note the presumption whereby if meat or unidentifiable skin or hide of an elephant or rhino is found in the possession of the accused, the courts can presume it was elephant or rhino in the absence of expert evidence according to s72 (6).

STATEMENT OF OFFENCE Failure to report the accidental killing of an animal OR failure to deliver an animal killed by accident or in error [delete as appropriate], contrary to section 48(1) as read with section 48(4) of the Wildlife Conservation and National Parks Act Chapter 38:01,.

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], when hunting in [identify location] killed an animal [identify species] without a licence to kill such an animal, and failed to report the killing to a police station or wildlife officer within 7 days OR failed to deliver the animal or such parts of it as were directed to be delivered by the wildlife officer [identify the officer] or police station [identify relevant station] [delete as appropriate].

STATEMENT OF OFFENCE Failure to report the accidental killing of an animal OR failure to deliver an animal killed by accident or in error [delete as appropriate], contrary to section 48(3) as read with section 48(4) of the Wildlife Conservation and National Parks Act Chapter 38:01,

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], when driving a motor vehicle on [identify road] killed an animal [identify species] and failed to report the killing to a police station or wildlife officer as soon as possible OR and having retrieved [identify whether the whole or part was retrieved]failed to deliver the animal or such parts of it as were directed to be delivered by the wildlife officer [identify the officer] or police station [identify relevant station] [delete as appropriate].

Hunting without Permission

s49(1) Hunting or capturing animals without permission of the landowner or occupierP1,000 and 1 year imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

Identify of the landowner/occupier

That the accused entered upon any land;

That he entered thereupon for the purpose of hunt-ing or capturing any animal;

That he did not have the written permission of the land owner occupier; OR

That he was not accompanied by the land owner or occupier or the duly authorised representative of such a land owner or occupier

Note the presumption re: permission under s72(4).

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the landowner or occupier; a statement from the arrest-ing officer; photographic or video evidence.

NOTE: If the accused is found upon the land in possession of a firearm or any such weapon capable of killing any animal by the discharge of any missile; or he is in possession of poisoned bait, poisoned weapon, birdlime or trap or he is with a dog, it is presumed that he is there for the purposes of hunting – s49(2) AND in breach of an authority under this section.

STATEMENT OF OFFENCE Hunting or capturing animals without permission of the landowner or occupier, contrary to section 49(1) of the Wildlife Conservation and National Parks Act Chapter 38:01.

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date] entered onto land [identify loca-tion], for the purpose of hunting or capturing any animal, (choose one of the follow-ing options)

Option A: without the written permission of the landowner or occupier, namely [iden-tify the land owner or occupier] Option B: without being accompanied by the land-owner or occupier or a duly appointed representative thereof, namely [identify the landowner or occupier or the representative].

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Offences in relation to landowners

s49(3) Failure to give identification details and/or to leave land belonging to anotherP1,000 and 1 year imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

Identity of land owner or occupier;

That the accused entered upon that land owned by another or occupied by that other;

That he was asked by a police officer and/or the land owner or occupier to provide his name and address AND that individual had identified himself as an offi-cer /landowner/occupier.

That he failed to give him name and addresses or give and incorrect or incomplete name and address OR that that he failed to leave the land forthwith af-ter having been directed so to do.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the landowner or occupier or the police officer; pho-tographic or video evidence; expert evidence in relation to the weapon carried by the individual. The statement from the officer/landowner MUST include the fact that they identified themselves in that capacity prior to the request.

STATEMENT OF OFFENCE Failing to comply with a request from an authorised person, contrary to section 49(3) of the Wildlife Conservation and National Parks Act Chapter 38:01.

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date] having entered onto land [identify location], owned or occupied by another, namely [insert identity of the owner/occupi-er], and choose one of the following options:

Option A: failed to provide upon request by a person authorised under the Act to so request, his full name and address

Option B: OR failed to leave the land forthwith after having been directed so to do by the landowner or occupier or police officer [delete as appropriate].

Offences in relation to landowners

s50(1) Conveying a loaded weapon in a vehicle on a public road or a private road without permission of the landowner or occupierP1,000 and 1 year imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused conveyed a loaded weapon (other than a revolver or pistol); AND

He/she was in a vehicle that was travelling along a road to which the public has access;

AND that vehicle traversed private land on which game is or is likely to be found;

Identity of the private land owner

That the accused is not the owner or occupier of the land and does not have the permission of the land-owner or occupier to hunt on the land or to convey a weapon on the land (note the presumption on per-missions s72(4)).

Nb. ‘loaded weapon’ means a weapon having a bullet or cartridge in the breach thereof.

Also note the presumption whereby if in possession of a weapon, there is a presumption that the person was intending to hunt - s72(15)

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the landowner or occupier; photographic or video evidence; expert evidence in relation to the weapon carried by the individual. Consider a charge under the Arms and Ammunitions Act as well – this has higher penalties and should be preferred where there is no license to hold that weapon; where more than one person is in the vehicle, careful record keeping of exactly where the weapon was kept and how accessible it was to the driver or other passengers will be vital e.g. if in the boot of the vehicle in a bag, ownership of the bag e.g. through fingerprint examination and assignation of other items in the bag to one or more suspect in the car will have to be conducted.

STATEMENT OF OFFENCE Conveying a loaded weapon in a vehicle on public land or land belong to another without permission, contrary to section 50(1) of the Wildlife Conservation and National Parks Act Chapter 38:01.

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date] whilst in possession of a loaded weapon, namely [identify the weapon], entered onto land, namely [identify location]

Option A: that being land to which the public have access OR

Option B: that being land belonging to another [insert identity of landowner] where there is or is likely to be game found and did so without the permission of the land-owner or occupier to hunt/convey such a weapon [delete as appropriate]

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Offences in relation to landowners

s52(2) Obstructing or hindering any person carrying out a searchP500 and 6 months imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

The location was ‘private land’.

That the landowner or occupier carried out or at-tempted to carry out a search based on reasonable cause to suspect that any tent, hut, camping place or vehicle on his land contained therein any animal, meat or trophy or any article by means of which this Act has been contravened.

That the accused has obstructed or hindered the car-rying out of such a search or the seizure of articles found by means of such a search.

s76 can plead guilty in writing

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from person conducting the search; photographic or video evidence. The statement of the landowner/occupier/person seeking to carry out the search MUST address the reasonable grounds on which they came to suspect the breach of the Act and must demonstrate that they identified themselves as the landowner/occupier/ person autho-rised by the landowner/occupier. As a matter of caution, it would be also be recommended that they inform the accused of the grounds of their suspicion and record that in their statement as well.

STATEMENT OF OFFENCE Obstructing or hindering any person carrying out a search, contrary to section 52 (2) as read with section 52(1) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date] at [identify location], obstructed the landowner or occupier or any such person authorised by the landowner or occupi-er [delete as appropriate] in the carrying out of a search pursuant to section 52(1) of the Wildlife Conservation and National Parks Act, Chapter 38:01.

Wounding an Animal

s54(4) Wounding an animalP5,000 and 5 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused did one or more of the following:

wounded an animal but did not take all such steps as may be reasonable to kill the wounded animal (54(1)

wounded but does not kill a dangerous animal and then failed to report it to the nearest wildlife offi-cer at the earliest opportunity or police station after having failed to kill the animal (detailing the name of the person, the animal wounded, the date, the location and the efforts made to kill it – see section 54(2))

witnessed the wounding but not killing of a danger-ous animal and failed to report it to the nearest wild-life officer or police station at the earliest opportu-nity (detailing the name of the person who inflicted the wound – see section 54(3).

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the wildlife officer or police station as to the absence of a report; photographic or video evidence; expert evidence as to the wounding of the animal.

What amounts to ‘reasonable steps to kill that animal’ is unclear. Where the accused is a professional hunter or has a number of kills on his register (for example) this will be relevant to what might be considered reasonable for that individual; compared to someone who may be very inexperienced. It would be useful to consider if there is any recorded judgments on this issue.

STATEMENT OF OFFENCE Wounding an animal, contrary to section 54 (1) as read with section 54(4) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date] at [identify location], after having wounded an animal, namely [identify the species] failed thereafter to take all reason-able steps to kill that animal.

STATEMENT OF OFFENCE Failing to report the wounding of an animal, contrary to section 54(2) as read with section 54(4) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [identify location], wounded an animal, namely [identify the species] and after having failed to kill that animal, failed to report the wounding of the animal to the nearest wildlife officer or police station at the earliest opportunity.

STATEMENT OF OFFENCE Failing to report the wounding of an animal, contrary to section 54 (3) as read with section 54(4) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [identify location], having witnessed the wounding of an animal, namely [identify the species] failed to report the wounding of the animal to the nearest wildlife officer or police station at the earliest opportunity.

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Hunting at Night

s55(1) Hunting or capturing any game animal by nightP5,000 and 5 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

Identify the species of game animal i.e. specified in the sixth and seventh schedule.

That the accused hunted or captured any game ani-mal by night, OR used any dazzling light for the pur-pose of hunting or capturing any game animal.

‘Hunting’ defined as: to kill, injure or follow or to wil-fully disturb or molest by any method or to lie in wait for or search for with intent to kill, injure or shoot.

Presumption of absence of permission (s72(4)

Presumption re: s72(12) re: presumption of hunting when caught at night time in possession of any ani-mal, trophy, meat or egg.

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014).. Includes weapons and vehicles.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the arresting officer; photographic or video evidence, a statement from the licensing officer as to the absence of any licence.

STATEMENT OF OFFENCE Unauthorised hunting or capturing of a game animal by night or by use of daz-zling light [delete as appropriate], contrary to section 55(1) of the Wildlife Conservation and National Parks Act Chapter 38:01.

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date] at [identify location], hunted or captured by night or used dazzling light for the purpose of hunting or capturing [de-lete as appropriate] a game animal, namely [identify species] without a permit.

Hunting during Closed Season

s56(1) Hunting or capturing and game animal during closed seasonP5,000 and 5 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused hunted or captured any game animal.

‘Game animal’ is an animal in the sixth and seventh schedule.

‘Hunting’ defined as: to kill, injure or follow or to wil-fully disturb or molest by any method or to lie in wait for or search for with intent to kill, injure or shoot.

That the hunting or capturing took place during closed season.

Presumption as to absence of authority – s72(4)

In identifying the carcass (meat, hide, skin) see pre-sumptions in s72(6) and also s72(9).

If in possession of a weapon, there is a presumption re: hunting s72(15

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the licensing officer on the absence of a licence and that it was closed season at the time the offence was committed; a statement from the arresting officer; photographic or video evidence. Evidence of any weaponry in possession of the accused or other hunting paraphernalia.

STATEMENT OF OFFENCE Hunting or capturing any game animal during the closed season, contrary to sec-tion 56(1) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [identify location], hunted or captured [delete as appropriate] a game animal, namely [identify species] during closed season without a permit or other authorisation.

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Unlawful Methods of Hunting

s57(6) Hunting using unlawful methodsP5,000 and 5 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused was engaged in hunting or captur-ing activities;

That in doing so, he used one or more of the meth-ods outlined in section 57 of the Act (and where ap-plicable otherwise than in accordance with a licence and/or written permission), namely:

discharged any weapon towards a game animal when in a vehicle, aircraft or mechanically propelled vessel (s57(1)(a);

used such a vehicle, aircraft or vessel to drive, stam-peded, or disturb any animal for any purpose (s57(1)(b)

Use any vehicle or mechanically propelled vessel to capture any game animal (s57(1)(c)

In any vehicle or mechanically propelled vessel, for the purpose of hunting or capture of any animal ap-proach nearer than 200m to any animal (s57(1)(d)

drove or surrounded any animal by fire or caused a bush or grass fire; s57(4)

used any immediate means other than a hunting ri-fle, shotgun or dog (s57(5)

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; expert evidence in relation to the method used; a statement from the arresting officer; photographic or video evidence.

STATEMENT OF OFFENCE Hunting using unlawful methods, contrary to section 57(insert appropriate sub-section as above) as read with section 57(6) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date] at [identify location], hunted an animal, namely [identify species and number] using one or more unlawful method, namely [identify the unlawful method].

Hunting of Elephant or Buffalo

s58(2) Hunting an elephant or buffalo with a weaponP500 and 6 months imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused hunted an elephant or buffalo;

That he/she used a weapon, including a Martini Henry or a muzzle loader or any firearm other than a rifle of a calibre not less than 9,3mm or 375 magnum.

That the accused did not have a valid licence (note the presumption re: absence of permission under s72(4)).

s76 – can plead guilty in writing

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the licensing officer as to the absence of a licence; pho-tographic or video evidence; expert evidence as to the nature of the weapon used. Consider an offence under the Arms and Ammunition Act which has higher penalties and where an elephant is killed, see s67.

STATEMENT OF OFFENCE Hunting an elephant or buffalo with a prohibited weapon, contrary to section 58(2) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date] at [identify location], hunted an elephant or buffalo [delete as appropriate] with a weapon, namely [identify weapon used], without a permit or license.

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Lions and Leopards

s59 Killing of a lion or leopardP500 and 6 months imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

Identify the animal as a lion or leopard

That the accused killed that lion/leopard

(note presumption if found in possession of the meat or skin/hide of an animal under s72(6) and also see s72(9).

AND

That the accused failed to produce the skull or the lion or leopard to the license officer for inspection

Note the presumption re: failure to report/produce – the burden will be on the accused to show he in fact do so s72(10).

s76 can plead guilty in writing

s79 For second conviction, (for any offence under the ct) increase maximum penalty by 50%.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from person conducting the search; photographic or video evidence. Expert evidence may be required to identify the meat, skin or hide as belonging to a lion or leopard.

STATEMENT OF OFFENCE Failure to produce the skull of a lion or leopard killed, contrary to section 59 of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date] at [identify location], having killed a lion or leopard [delete as appropriate], failed to produce the skull thereof to the license officer for inspection.

Selling/trade offences

s60(3) Selling any game or non-designated animal or the meat, eggs or trophy thereof without a permitP1,000 and 1 year imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused sold any game animal or non-des-ignated animal OR

That the person sold the meat, eggs or trophy or any game animal or non-designated animal.

Game animal is one specified in the sixth and seventh schedule.

The accused sold the same otherwise than in accor-dance with the terms and conditions of a permit granted under section 39(1)(c) of the Act

UNLESS the person fits within one of the categories in section 60(1)(i)-(iii)

Presumptions in favour of prosecution also see s60(2):

Any game animal or non-designated animal, or the meat, eggs or trophy of any such animal found in any shop, store or other place of business, shall be presumed to have been acquired for the purpose of sale, and the person in whose possession it is found shall be presumed to have dealt therewith in contra-vention of this section (unless he has a valid permit)

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; photographic or video evidence of sale; statement of any customers of the individual; a statement of the arresting officer and the licensing officer as to the absence of a permit. Expert evidence may be required to identify the species concerned.

STATEMENT OF OFFENCE Selling any game or non-designated animal or the meat, eggs or trophy there-of [delete as appropriate] without a permit, contrary to section 60(3) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date] at [identify location], sold a game animal, or non-designated animal or the meat or eggs or trophy of a game or non-des-ignated animal [delete as appropriate and identify the species], without a permit.

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Selling/trade offences

s61(1) Purchase of animals or parts or eggs thereofP2,000 and 2 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused purchased a game or non-desig-nated animal or the meat, eggs or trophy of such an animal; and

(Game animal is one defined in the sixth and seventh schedule).

That the accused made the purchase without having satisfied himself through reasonable evidence that the seller has a valid permit authorising him to sell those items or is authorised under section 60.

Unless he purchases the items:

from a stall at any fete or bazaar or other like func-tion open to the public;

from any person who lawfully exhibits his good for sale in any road, street or other public place; or

in the ordinary course of business from a person who carries on a business in a shop, store or other fixed place of business.

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). E.g. vehicle.

If the accused has any permit, license or authority issued under this Act, s75(2) cancels that permit/authority

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: Eyewitness evidence; photographic or video evidence; a statement from the arresting officer; interview of the accused regarding what enquiries he made regarding the legality of the seller. Copies of any documents or other evidence used to satisfy himself that the seller was authorised to sell the goods; proof of purchase of the goods.

STATEMENT OF OFFENCE Purchase of animals or parts or eggs thereof, contrary to section 61(1) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date] at [identify location], purchased a game animal or non-designated animal [identify species] or meat or eggs or trophy of a game animal or non-designated animal, namely [identify species] [delete as appro-priate], without having satisfied himself through reasonable evidence that the seller was authorised to sell that animal, meat, eggs or trophy [delete as appropriate].

Import/Export Offences

s62(5) Export, import or re-export of animals P10,000 and 7 years imprisonment

S62(5)(a) Export, import or re-export in respect of a rhinoceros or any trophy thereofP100,000 and 10 years imprisonment

S62(5)(b) Export, import or re-export in respect of an elephant or any trophy thereofP50,000 and 10 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

Identity of the animal (and number) or meat or eggs or trophy thereof;

That the accused was engaged in the import, export or re-export of the animal/trophy

Presumption re: absence of a license applies (s72(4)).

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under this Act, s75(2) cancels that permit/authority.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: Eyewitness evidence; photographic or video evidence; statement of any border officials; state-ment from the licensing officer as to the absence of a permit; statement from the arresting officer. Accused’s answers on arrest and interview should be carefully recorded.

STATEMENT OF OFFENCE Export/Re-export [delete as appropriate] of an animal from Botswana, contrary to section 62(1) of the Wildlife Conservation and National Parks Act Chapter 38:01 as read with section 62(5) of the same

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], exported/re-exported [delete as appropriate] an animal, namely [identify species and number, and if a rhinoceros or elephant state it clearly] or the meat, eggs or trophy thereof [delete as appropriate] from Botswana without a permit issued under the Act

STATEMENT OF OFFENCE Import of an animal into Botswana, contrary to section 62(1) of the Wildlife Conservation and National Parks Act Chapter 38:01 as read with section 62(5).

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], imported [delete as appropriate] an animal, namely [identify species and number and if a rhinoceros or elephant state it clearly] or the meat, eggs or trophy thereof [delete as appropriate] into Botswana without a permit issued under the Act

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Trophy Offences

s64 Dealing in trophiesP5,000 and 5 years imprisonment

Nb. If the trophy is in respect of a rhinoceros or elephant the penalties shall be:Rhinoceros – P100,000 and 15 years imprisonment

Elephant –P50,000 and 10 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused was engaged in the selling, dealing or manufacture of any article from any trophy;

That the trophy:

was not lawfully imported into, OR

was not obtained from any animal lawfully captured or killed in Botswana.

Identity of the trophy and species of animal.

Note the presumptions re: identifying the species under s72(6) and s72(9).

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under this Act, s75(2) cancels that permit/authority.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: Eyewitness evidence; photographic or video evidence, statement from any border officer as to the lawfulness of the importation; statement from the arresting officer. Forensic/DNA evidence may be required to identify the nature of the trophy where disputed.

STATEMENT OF OFFENCE Sale, dealing in or manufacture of trophies, contrary to section 64 of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date] at [identify location], was en-gaged in the selling/dealing/manufacture [delete as appropriate] of an article of a trophy, namely [identify trophy and species of animal] that has not lawfully been imported into, OR

has not been obtained from any animal lawfully captured or killed [delete as appro-priate] in Botswana.

Trophy Offences

s65(7) Carrying on the business of a trophy dealer otherwise than in accordance with a licenceP5,000 and 5 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

Identity of the accused and any other relevant per-sons e.g. the transferee and transferor of the licence for the purpose of section 65(4);

That the accused was carrying on the business of a trophy dealer; AND

That the accused did not have a licence or permit to carry on such a business or had an invalid or ex-pired licence.

OR

That the accused did NOT have a trophy dealer’s licence but employed or engaged another to man-ufacture such an article from a trophy in breach of that license

OR

That the trophy dealer transferred his licence to another.

OR

the accused had a valid license but NOT for the deal-ing in that particular kind of trophy.

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under this Act, s75(2) cancels that permit/authority.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: Eyewitness evidence; photographic or video evidence, statement from the licensing officer as to the absence or validity of any licence; statement from the arresting officer; details of the business including sales, profits etc.

STATEMENT OF OFFENCE Carrying on the business of a trophy dealer otherwise than in accor-dance with a licence, contrary to section 65 (1) as read with section 65(7) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date] carried on the business of a trophy dealer otherwise than in accordance with a valid trophy dealer’s licence.

STATEMENT OF OFFENCE Carrying on the business of a trophy dealer otherwise than in accor-dance with a licence, contrary to section 65 (1) as read with section 65(7) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], employed or en-gaged another to manufacture an article from a trophy, name-ly [identify article and trophy] whilst not authorised to so do.

STATEMENT OF OFFENCE Transferring a trophy dealer’s licence to another, contrary to section 65(4) as read with section 65(7) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], transferred his tro-phy dealer’s licence to another person, namely [identify the other per-son] OR used a trophy dealer’s licence that had been transferred to him from the licence holder, namely [identify the licence holder].

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Trophy Offences

s66(1) Failing to Maintain a Trophy Dealer’s RegisterP2,000 and 2 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

The accused holds a trophy dealer’s licence;

That he failed to keep and/or maintain a register in such form as prescribed by regulations issued under this Act; OR

That he failed to make such return as were pre-scribed. (Identify what returns were prescribed)

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under this Act, s75(2) cancels that permit/authority.

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: Copies of any records kept, statement from the investigating officer; statement from the licens-ing officer; exhibiting of his register (if any).

STATEMENT OF OFFENCE Failure to maintain a trophy dealer’s register/ Failing to submit returns [de-lete as appropriate], contrary to section 66(1) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], failed to keep or maintain a register in the prescriber form, OR failed to make such returns as were prescribed [delete as appropriate], namely [identify returns required]

Elephant Offences

s67(1) as read with s67(5) Failing to Produce after Killing of an Elephant/Possession of Tusks P50,000 and 10 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused killed an elephant;

That he/she failed to produce the lower jaw, tails and tusks of the elephant together with his/her licence, to the licensing officer within 7 days (or such extend-ed period as is expressly authorised by the licensing officer);

OR

That the accused is found in possession of the tusks of an elephant that have not been registered.

Note the presumptions that operate in favour of the prosecution under s72.

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: Eyewitness evidence; photographic or video evidence; documentary evidence as to any commu-nication between the licence holder and the licensing officer statement from the licensing officer.

STATEMENT OF OFFENCE Failing to present the tail, lower jaw and tusks of an elephant for registration, contrary to section 67(1) as read with section 67(5) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], having killed an elephant, failed thereafter to produce the lower jaw, tail and/or tusks [delete as appropriate] to the licensing officer, within 7 days of the killing of the elephant or within such an extended period as is specifically prescribed by the licensing officer [delete as appropriate]

STATEMENT OF OFFENCE Possession of the tusks of an elephant that have not been registered, contrary to section 67(5) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], was in possession of the tusks of an elephant which had not been registered in accordance with the provisions of the Wildlife Conservation and National Parks Act, Chapter 38:01

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Rhino Offences

s67(6) Failing to Produce a Rhino Horn/Possession of a Rhino Horn after Killing of a RhinocerosP100,000 and 15 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused killed a rhinoceros;

That he failed to produce the horn to the licensing officer within 7 days (or such extended period as is expressly authorised by the licensing officer);

OR

That the accused is found in possession of the horn of a rhinoceros that has not been produced

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: Eyewitness evidence; photographic or video evidence; documentary evidence as to any commu-nication between the licence holder/accused and the licensing officer; statement from the licensing officer.

STATEMENT OF OFFENCE Failing to produce a rhino horn, contrary to section 67(6) of the Wildlife Conservation and National Parks Act Chapter 38:01.

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], having killed a rhinoceros, failed to produce the horn together within 7 days of the killing of the rhinoceros or within such an extended period as is specifically prescribed by the licensing officer [delete as appropriate]

STATEMENT OF OFFENCE Possession of the horn of a rhinoceros, contrary to section 67(6) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [location] was found in posses-sion of the horn of a rhinoceros that had not been produced in accordance with the provisions of the Wildlife Conservation and National Parks Act, Chapter 38:01

Elephant Offences

s68(2) Importation or possession of tusks or ivory without registrationP50,000 and 10 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused had in his possession tusks or ivory;

AND he had no certificate of ownership;

OR

That the accused imported the tusks or ivory into Botswana without a certificate of ownership;

AND

That the accused did not then produce the tusks or ivory for registration together with proof of lawful importation to a licensing officer;

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under this Act, s75(2) cancels that permit/authority.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: Eyewitness evidence; statement from the arresting officer; documentary evidence as to any communication between the licence holder and the licensing officer statement from the licensing officer.

STATEMENT OF OFFENCE Importation of tusks or ivory without registration thereof, contrary to section 68(1) as read with s68(2) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], having imported tusks or ivory [delete as appropriate] without a certificate of ownership, failed to present it to the licensing officer for registration within 7 days of the importation or such extended period as the licensing officer has expressly prescribed [delete as appropriate]

STATEMENT OF OFFENCE Possession of tusks or ivory without a certificate of ownership, contrary to sec-tion 68(1) as read with section 68(2) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [location] was found in the pos-session of tusks or ivory [delete as appropriate] without a certificate of ownership or proof of registration thereof.

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Elephant Offences

s69(3) Transferring ivoryP50,000 and 10 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

The accused transferred ivory or tusk to another

That the ivory or tusk was required to be registered;

That it was transferred without having been registered

OR

That it was transferred without handing over the certificate of ownership and/or that both parties did not sign an endorsement in relation to the transfer.

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under this Act, s75(2) cancels that permit/authority.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: Eyewitness evidence; statement from the registration/licensing officer; statement from the arresting officer.

STATEMENT OF OFFENCE Transferring ivory, contrary to section 69(3) as read with section 69(1) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], transferred ivory to another, namely [identify transferee] [delete as appropriate], without that ivory having been registered OR without completing the formalities of such a transfer, namely [identify whether certificate of ownership not transferred or endorsement not signed].

Rhino Offences

s70 Possession or transfer of or dealing with a rhinoceros hornP100,000 and 15 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the trophy was ‘rhinoceros horn’

That the accused was in possession of, transferred or in any way dealt with that rhinoceros horn.

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under this Act, s75(2) cancels that permit/authority.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: Eyewitness evidence; photographic or video evidence; statement of the arresting officer; state-ments exhibiting the horn if available or photographs or other proof where the horn has been not been found. Expert testimony may be required to confirm it is rhino horn.

STATEMENT OF OFFENCE Possession of/Transfer of/Dealing with a rhinoceros horn, contrary to section 70 of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [identify location], was in pos-session of/transferred/dealt with [delete as appropriate] a rhinoceros horn.

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Trophy Offences

s71(3) Unlawful possession of a government trophyP5,000 and 5 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused is in possession of a government trophy (Government trophies are identified in sec-tion 71(1)(a)(e) of the Act);

AND

That the accused failed to report such a trophy forth-with to the nearest wildlife officer or police station;

OR

Having reported it, the accused failed to deliver the trophy in question to the wildlife officer or police station having been so directed.

See presumptions under s72(3) re: presumption of possession where found in any vehicle, boat, aircraft or camping place.

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under this Act, s75(2) cancels that permit/authority.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: Eyewitness evidence; photographic or video evidence; statement of the arresting officer; state-ment from the wildlife officer or police station.

STATEMENT OF OFFENCE Failing to report possession of a government trophy , contrary to section 71 of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], having obtained possession of a government trophy, namely [identify the article] and failed to report it forthwith to the nearest wildlife officer or police station

STATEMENT OF OFFENCE Failing to deliver a government trophy to a wildlife officer, contrary to section 71 of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], having been directed to deliver a government trophy to the nearest wildlife officer or police station [delete as appro-priate] failed to so do.

Offences in relation to Wildlife Officers

s73(6) Failure to comply with a request or direction by a wildlife officer or gate attendant P2,000 and 2 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

Identity of the wildlife officer or gate attendant

That the wildlife officer or gate attendant identified themselves to the accused AND

Made a request or made a direction in accordance with the powers conferred on them under section 73 of the Act;

That the accused failed to comply with the request or direction; OR

That the person gave information which he knew, or ought reasonably to have known, was false.

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under this Act, s75(2) cancels that permit/authority.

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction.

Evidence: likely to include but not limited to: statement of the arresting officer; statement from any witnesses; documents provided to the officer (if the information contained therein is alleged to be false).

STATEMENT OF OFFENCE Failure to comply with a request or direction by a wildlife or police officer, contrary to section 73(6) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [identify location], failed to comply with a request or direction made by a wildlife officer or gate attendant [delete as appropriate and identify the officer]

STATEMENT OF OFFENCE Giving false information to a wildlife officer or police officer, contrary to section 73(6) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [identify location], gave information to a wildlife officer or gate attendant [delete as appropriate], namely [identify the officer] which he knew or ought reasonably to have known was false.

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Offences in relation to Wildlife Officers

s73(7) Assaulting, wilful obstruction or resisting arrest by a wildlife officer or a gate atten-dant in the performance of his duties or assisting or encouraging such person

P5,000 and 5 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the witness was a wildlife officer or gate attendant;

That the officer or gate attendant was acting in the performance of his duties under the Act;

That the accused assaulted him, wilfully obstructed him or resisted arrest by him; OR

That the accused assisted or encouraged another to assault, wilfully obstruct or resist arrest by a wildlife officer or gate attendant.

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s77(2), may seek a confiscation order under the Proceeds of Serious Crime Act if the Director is satisfied the offender has received a pecuniary benefit

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: Eyewitness evidence; photographic or video evidence; statement of the arresting officer or gate attendant.

STATEMENT OF OFFENCE Assault/Wilful obstruction/Resisting arrest [delete as appropriate] of a wildlife officer or gate attendant [delete as appropriate], contrary to section 73(7) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [identify location], assaulted/wilfully obstructed/resisted arrested by [delete as appropriate] a wildlife officer or gate attendant [delete as appropriate], namely [identify the officer] in the perfor-mance of his duties under the Wildlife Conservation and National Parks Act.

STATEMENT OF OFFENCE Assisting or encouraging another in the assault/wilful obstruction/resisting of arrest [delete as appropriate] of a wildlife officer or gate attendant [delete as appropriate], contrary to section 73(7) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [identify location], assisted or encouraged another, namely [identify the other individual] to assault or wilfully ob-struct/ resist arrest by [delete as appropriate] a wildlife officer or gate attendant [delete as appropriate], namely [identify the officer] in the performance of his duties under the Wildlife Conservation and National Parks Act.

Offences in relation to Wildlife Officers

s74(2) Failing to stopP1,000 and 1 year imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

Identify the wildlife officer;

That the wildlife officer had erected a temporary barrier across a road pursuant to section 74(1)

That the accused was required to stop by word, sign or signal.

That the accused failed to stop.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%.

Evidence: likely to include but not limited to: Eyewitness evidence; photographic or video evidence; statement of the wildlife officer; state-ments made by the individual upon arrest.

STATEMENT OF OFFENCE Failing to stop, contrary to section 74(2) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [identify location], failed to stop when required to do so by word, sign or signal [delete as appropriate] issued by a wildlife officer, namely [identify the wildlife officer].

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Forest Areas

s81 Hunting or capturing any animal in a Forest Act areaP2,000 and 2 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the area was declared to be a reserved area un-der the Forest Act;

That the accused was engaged in hunting or captur-ing any animal within that area;

That the accused did not have a permit or licence under the Forest Act (note presumptions on permis-sions and hunting under s72)

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: Eyewitness evidence; photographic or video evidence; statement of the arresting officer; expert evidence in relation to boundaries and whether the location was within the applicable area.

STATEMENT OF OFFENCE Hunting or capturing an animal within a reserved area, contrary to section 81 of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [identify location], being a reserved area under the Forest Act, engaged in the hunting and/or capturing of any animal [delete as appropriate], without a permit or licence

Keeping Animals

s82 Keeping of animalsP2,000 and 2 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused was keeping an animal in confine-ment without a permit issued by the Director;

OR

That the accused had a permit but was keeping the animal in conditions that contravened those con-tained within the permit

OR

That the accused was exhibiting the animal to the public otherwise than in accordance with a permit and/or such conditions attached thereto

OR

That the accused kept a dangerous animal in con-finement in accordance with a permit but failed to take reasonable steps to prevent escape OR where it did escape, failed to take reasonable steps to kill it or re-capture it.

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under this Act, s75(2) cancels that permit/authority.

s79 For second conviction, (for any offence under this Act) increase maximum penalty by 50%. If second conviction for a rhino or elephant, no option of a fine.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: Eyewitness evidence; photographic or video evidence; statement of the arresting officer; state-ment from the wildlife officer and an exhibit of the permit and any conditions. Where breach of conditions is alleged, precision is required. Note the presumptions in favour of prosecution under s72.

STATEMENT OF OFFENCE Keeping or exhibiting an animal contrary to section 82 of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [identify location]:

Option A: kept an animal (identify the animal) in confinement without a permit/in breach of conditions of a permit (delete as appropriate).

Option B: exhibited an animal namely [identify the animal] to the public without/in breach of the conditions of a permit to so do [delete as appropriate]

Option C: having kept a dangerous animal namely [identify the animal] in confinement which then escaped, thereafter failed to take reasonable steps to prevent its escape/failed to take reasonable steps to recapture or kill it [delete as appropriate]

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False Information

s84(2)(b) Failing to provide or providing false informationP500 and 6 months imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused was found at that location by the licence holder and/or landowner (or other such person in section 84(1);

The license holder or landowner identified themselves in that capacity

That the accused failed to produce his licence, permit, authority or permission authorising him to be on the land; OR

That the accused failed to provide his name and address upon request OR furnished a false or incomplete name/address

s76 – can plead guilty in writing.

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: Eyewitness evidence; photographic or video evidence; statement of the arresting officer; state-ment from the licence holder/authorised person who made the request.

STATEMENT OF OFFENCE Failing to provide information/ providing false or incomplete information/failing to produce authorisation [delete as appropriate], contrary to section 84(2)(b) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [identify location], failed to pro-duce his licence, permit, authority or permission [delete as appropriate] authorising him/her to be on such land, OR failed to provide his name and address OR provided a false or incomplete name and address [delete as appropriate] to the owner of that land.

Offences in relation to Wildlife Officers

s85 Impersonating an officer2,000P and 2 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused falsely represented himself to be a wildlife officer, honorary officer or a gate attendant;

OR

That the accused wore a uniform or carried or dis-played a badge or letter or other document of ap-pointment that a wildlife officer, honorary officer or a gate attendant would be authorised under this Act to wear or carry AND the accused did not have a lawful excuse.

OR

That the accused wore or carried or displayed a uni-form, badge or document so resembling one that a wildlife officer, honorary officer or a gate attendant would be authorised under this Act to wear or carry as to be calculated to deceive.

s75 Anything used in connection with the commission of the offence SHALL be for-feited to the State to be disposed of as the Minister directs subject to the protection of innocent third parties under the Proceeds and Instruments of Crime Act (2014). Includes weapons and vehicles.

If the accused has any permit, license or authority issued under the Act, s75(2) cancels that permit/authority.

s79 For second conviction, (for any offence under the Act) increase maximum penalty by 50%.

s33(1) disqualification from grant of a license under this Act for 3 years from date of conviction

Evidence: likely to include but not limited to: Eyewitness evidence; photographic or video evidence; statement of the ar-resting officer; statement from the wildlife officer, honorary officer or a gate attendant; the document/badge/uni-form in question. “wildlife officer” means any person for the time being holding the public office of Director or any oth-er public officer of the Department of Wildlife and National Parks charged with the implementation and administration of the provisions of this Act, and, to the extent to which an honorary officer is permitted to act, includes an honorary officer. There is little to distinguish between the various forms of impersonation and so the simplest and most straightforward charge is the first option as it encompassed the possibility of him wearing a uniform or carrying a badge but does not require proof of ‘calculation to deceive’. The penalties are the same regardless of his intention.

STATEMENT OF OFFENCE Impersonating a wildlife officer, contrary to section 85(a) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [identify location], falsely rep-resented himself to another, to be a wildlife officer, honorary officer or gate atten-dant [delete as appropriate].

STATEMENT OF OFFENCE Impersonating a wildlife officer, contrary to section 85 (b) of the Wildlife Conservation and National Parks Act Chapter 38:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [identify location], without lawful excuse and with intent to deceive, wore a uniform OR carried or displayed a badge OR carried or displayed a document of appointment or identity [delete as ap-propriate] authorised or required under the Wildlife Conservation and National Parks Act Chapter 38:01 to be worn or carried or displayed [delete as appropriate] by a wildlife officer, honorary officer or gate attendant [delete as appropriate]

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THE ARMS AND AMMUNITIONS ACT CAP 24:01

For those bringing weapons from across the borders

s6(1) Importation of Arms and AmmunitionPenalty: 1,000P and/or 1 year imprisonment

s6(6) Minimum sentence of 5 years imprisonment and a maximum of 10 years imprisonment if arms or ammunition of war (s6(6)

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the items were arms/ammunition within the definition in Section 2 of the Act, namely:

Ammunition: means any cartridge or percussion cap designed for use in the discharge of arms…..Arms: means any lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged or which can be adapted for the discharge of any shot, bullet or other missile, and any weapon of whatever description de-signed or adapted for the discharge of any noxious liquid gas or other thing and includes the barrel, bolt and chamber and any other essen-tial component part of any that weapon”

Importation of the arms and/or ammunition;

Absence of a permit issued under section 6 of the Act;

If the allegation is arms or ammunition of war, that they satisfy the definition in section 2 namely “artillery of all kinds, apparatus for the discharge of all kinds of projectiles, explosive or gas diffusing, flame-throwers, bombs, grenades, machine guns and rifled small-bore breach-loading weapons, or such arms as may be prescribed, but does not include sporting rifles, or personal or other weapons or apparatus not intended for warlike purposes.”

s27 (1) Forfeiture of the weapon.

s27(2) cancellation of any previous license or certificate issued under this Act

s27(3) prohibition on ownership for up to 10 years from date of conviction.

Breaching s27 is an offence in its own right – P200 and/or up to 6 months imprisonment.

Evidence: likely to include but not limited to: Eyewitness evidence; answers on arrest; a statement from a customs officer and/or arresting officer; statement from the person authorised to grant a permit to attest to the absence of a permit; expert evidence as to whether the arms/ammunition are arms/ammunition of war. If an automatic weapon, also consider charges under s7 and s9 for a minimum term of 5 years to apply, particularly if origin cannot be established.

STATEMENT OF OFFENCE Unlawful importation of arms and/or ammunition/arm and/or ammunition of war, [delete as appropriate], contrary to section 6(1) OR s6(6) [delete as appropriate] of the Arms and Ammunition Act Chapter 24:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], imported arms and/or ammunition /of war [delete as appropriate] into Botswana without a valid permit issued under the Act.

Offences relating to possession of arms/arms of war – automatic weapons

s9 (1) Purchase, Acquisition and/or Possession of arms and ammunition without a licencePenalty: 250P

s9(5) Minimum sentence of 5 years imprisonment and a maximum of 10 years imprisonment if arms or ammunition of war

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the items were arms/ammunition within the definitions in section 2 (see above);

That the arms/ammunition were purchased or ac-quired or in the possession of that individual;

That the purchase/acquisition/possession was not in accordance with an arms licence issued under Section 9 of the Act.

If the allegation is arms or ammunition of war, that they satisfy the definition in section 2 namely “artillery of all kinds, apparatus for the discharge of all kinds of projectiles, explosive or gas diffusing, flame-throw-ers, bombs, grenades, machine guns and rifled small-bore breach-loading weapons, or such arms as may be prescribed, but does not include sporting rifles, or personal or other weapons or apparatus not intended for warlike purposes.”

s27 (1) Forfeiture of the weapon.

s27(2) cancellation of any previous license or certificate issued under this Act

s27(3) prohibition on ownership for up to 10 years from date of conviction.

Breaching s27 is an offence in its own right – P200 and/or up to 6 months imprisonment.

Evidence: likely to include but not limited to: Eyewitness evidence; answers on arrest; a statement from the arresting officer; statement from the person authorised to grant an arms licence to attest to the absence of a permit; expert evidence as to whether the arms/ammunition are arms/ammunition of war. Probably the simplest offence to charge for those poaching, particularly from across Botswana borders.

STATEMENT OF OFFENCE Purchase/Acquisition/Possession [delete as appropriate] of arms/ammunition/of war [delete as appropriate] without a licence, contrary to section 9(1) /s9(5) {delete as appropriate] of the Arms and Ammunition Act Chapter 24:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], purchased/acquired/had in his/her [delete as appropriate] possession [delete as appropriate], arms/ammunition of war [delete as appropriate]otherwise than in accordance with license.

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Movement of weapons

s13 Sale and transfer of arms and ammunitionPenalty: 2,000P and/or 2 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the items were arms/ammunition within the definitions in section 2 (see above);

That the accused, by way of trade or business:

purchased, sold or transferred arms/ammunition; or

accepted or exposed for sale or transfer arms/ammunition

That the accused is not registered as an arms dealer.

OR, where the accused does NOT carry on a trade or business in arms:

That the accused sold, transferred or otherwise dis-posed of arms/ammunition to another person in Botswana

That other person was not a registered arms/ammu-nitions dealer

OR

That other person had no license to acquire those weapons

Defence: where the accused is a courier delivering arms in the ordinary course of business.

s27 (1) Forfeiture of the weapon.

s27(2) cancellation of any previous license or certificate issued under this Act

s27(3) prohibition on ownership for up to 10 years from date of conviction.

Breaching s27 is an offence in its own right – P200 and/or up to 6 months imprisonment

Evidence: likely to include but not limited to: Eyewitness evidence; answers on arrest; a statement from the arresting officer; statement from the person authorised to grant an manufacturers licence to attest to the absence of a licence; accounts and receipts. Circumstantial evidence surrounding the transfer of arms will be key e.g. informant/covert surveillance of night-time dealing in arms from a private dwelling. Where arms or ammunition of war are concerned, consider alternative charges under possession for higher minimum penalties to apply.

STATEMENT OF OFFENCE Sale or transfer [delete as appropriate] of arms and/or ammunition [delete as ap-propriate] without a licence, contrary to section 13 of the Arms and Ammunition Act Chapter 24:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], purchased /sold/ transferred /ac-cepted for sale/ exposed for sale/transferred/disposed of [delete as appropriate] arms and/or ammunition [delete as appropriate] otherwise than in accordance with a licence.

Transfer /Possession of Special Types of Weapons

s23(2) Sale, transfer, purchase, acquisition and possession of special types of arms and ammunition Penalty: 3,000P and/or 3 years imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused was NOT an authorised person with-in the meaning of Section 23(2), namely “a person in the service of the State in his capacity as such or a per-son authorised in writing in the behalf by a Minister, or a person of a class for the time being authorised in that behalf by the Minister by notice published in the gazette”

That they sold, transferred, purchased, acquired or had in their possession:

any arms which are so designed or adapted that, if pressure is applied to the trigger, missiles continue to be discharged until pressure is removed from the trig-ger or the magazine containing the missiles is empty;

any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or similar thing;

any ammunition containing, or designed or adapted to contain, any noxious liquid, gas or similar thing re-ferred to in paragraph (b); OR

any arms or ammunition or type of class thereof speci-fied by the Minister by order published in the Gazette.

s27 (1)Forfeiture of the weapon.

s27(2) cancellation of any previous license or certificate issued under this Act

s27(3) prohibition on ownership for up to 10 years from date of conviction.

Breaching s27 is an offence in its own right – P200 and/or up to 6 months imprisonment

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the police officer; admissions made by the individual; expert evidence as to the arms and ammunition; statement from the Minister or licensing officer as to whether the individual is an authorised person; photograph evidence.

STATEMENT OF OFFENCE Sale, transfer, purchase, acquisition and possession [delete as appropriate] of special types of arms and ammunition, contrary to section 23(2) of the Arms and Ammunition Act Chapter 24:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date sold, transferred, purchased, ac-quired or had in their possession [delete as appropriate] arms and/or ammunition [delete as appropriate] namely [identify category (a)-(d) above].

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Use of Weapons

s26 Discharge or firing arms without reasonable causePenalty: 250P and/or 3 months imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the individual was in possess of arms and/or am-munition within the definition of Section 2 of the Act (see above);

That the individual discharged or fired any arms at any place in a manner which caused or was likely to cause injury or danger to any person, or damage to property.

That the individual had no reasonable cause for car-rying the act(s) set out above (the burden of proving reasonable cause lies with the individual claiming it).

s27 (1) Forfeiture of the weapon.

s27(2) cancellation of any previous license or certificate issued under this Act

s27(3) prohibition on ownership for up to 10 years from date of conviction.

Breaching s27 is an offence in its own right – P200 and/or up to 6 months imprisonment.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the police officer; admissions made by the individual. Consider charging this offence in addition to offences of simple possession of arms/ammunitions by those caught in the act of poaching and who fire at APU/BDF officers. In doing so, it will act as an aggravating feature in relation to sentencing as a whole.

STATEMENT OF OFFENCE Discharge or firing arms without reasonable cause, contrary to section 26 of the Arms and Ammunition Act Chapter 24:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [location] without reasonable cause, discharged or fired [delete as appropriate] arms, namely [identify arms used] in a manner which caused or was likely to cause [delete as appropriate] injury or danger to any person, or damage to property [delete as appropriate]

Registration/Certificate offences

s7(1) Failure to register imported arms and ammunitionPenalty: 2,000P and/or 2 years imprisonment

s7(8) Minimum sentence of 5 years imprisonment and a maximum of 10 years imprisonment if arms or ammunition of war (s7(8)

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the items were arms/ammunition within the definition in Section 2 of the Act (see above);

That the arms/ammunition were imported into Botswana;

That they were imported either for sale or for person-al use by the importer;

Absence of registration of the arms/ammunition or absence of any valid registration;

If the allegation is arms or ammunition of war, that they satisfy the definition in section 2 namely “artillery of all kinds, apparatus for the discharge of all kinds of projectiles, explosive or gas diffusing, flame-throw-ers, bombs, grenades, machine guns and rifled small-bore breach-loading weapons, or such arms as may be prescribed, but does not include sporting rifles, or personal or other weapons or apparatus not intended for warlike purposes.”

s27 (1) Forfeiture of the weapon.( BLURB re PICA)

s27(2) cancellation of any previous license or certificate issued under this Act

s27(3) prohibition on ownership for up to 10 years from date of conviction.

Breaching s27 is an offence in its own right – P200 and/or up to 6 months imprisonment.

Evidence: likely to include but not limited to: Eyewitness evidence; answers on arrest; a statement from a customs officer and/or arresting of-ficer; statement from the person authorised to grant a permit/deal with the registration to attest to the absence of a permit; expert evidence as to whether the arms/ammunition are arms/ammunition of war. For this offence to apply, there must be evidence of the intention to either sell or use. For those poaching from across the borders, eyewitness testimony of how the weapon was being used will have to be recorded in a statement addressing this point to prove.

STATEMENT OF OFFENCE Failure to register imported arms and/or ammunition [delete as appropri-ate], contrary to section 7(1) /s7(8) [delete as appropriate]of the Arms and Ammunition Act Chapter 24:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], failed to register arms and/or am-munition [delete as appropriate] that had been imported into Botswana for the pur-pose of sale or for personal use [delete as appropriate],

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Registration/Certificate offences

s11 Failure to produce an arms licence or certificatePenalty: 250P (in default of payment thereof, to a term of imprisonment not exceeding 3 months)

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the licensing officer, game warden or customer had reasonable grounds to believe that the individual was in possession of arms or ammunition;

That the licensing officer, game warden or customs officer made a demand to that individual to produce his arms licence, certificate, permit or an exemption certificate;

That the individual failed to produce a valid arms li-cence, certificate, permit or an exemption certificate either immediately or within 30 days of the demand.

s27 (1) Forfeiture of the weapon.

s27(2) cancellation of any previous license or certificate issued under this Act

s27(3) prohibition on ownership for up to 10 years from date of conviction.

Breaching s27 is an offence in its own right – P200 and/or up to 6 months imprisonment

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the licensing officer/game warden or customs officer (as applicable).

STATEMENT OF OFFENCE Failure to produce an arms licence or certificate, contrary to section 11(1) of the Arms and Ammunition Act Chapter 24:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], failed to produce a valid arms li-cence, certificate permit or exemption certificate [delete as appropriate] when re-quested to do so by a licensing officer, game warden or customs officer [delete as appropriate], namely [identify the individual officer].

Storage of Weapons

s19 Failure to ensure the safe storage of arms and ammunitionPenalty: 500P and/or 6 months imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused was a registered arms dealer;

That the accused failed to take reasonable precau-tions to ensure that the arms or ammunition is not at any time available to any person not lawfully entitled to possess them;

OR, for those not registered as ‘dealers’:

That the accused had in his possession arms and am-munition AND did not ensure the arms and ammuni-tion were kept in a safe place.

s27 (1) Forfeiture of the weapon.

s27(2) cancellation of any previous license or certificate issued under this Act

s27(3) prohibition on ownership for up to 10 years from date of conviction.

Breaching s27 is an offence in its own right – P200 and/or up to 6 months imprisonment.

Evidence: likely to include but not limited to: Eyewitness evidence; answers on arrest; a statement from the arresting officer; statement from the person to whom the statement was made. This offence would be used for those who either deliberately or inadvertently enable the movement/transfer of weapons.

STATEMENT OF OFFENCE Failure to ensure the safe storage of arms and ammunition, contrary to section 19 of the Arms and Ammunition Act Chapter 24:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [location] failed to take rea-sonable precautions to ensure that the arms or ammunition is not at any time avail-able to any person not lawfully entitled to possess them, namely [identify the other individual]

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], at [location], failed to ensure the arms and ammunition were kept in a safe place.

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Loss of Weapons/Failure to Report

s20 Failure to report the loss of arms and ammunitionPenalty: 500P and/or 6 months imprisonment

POINTS TO PROVE ANCILLARY POWERS

Date and location of the offence;

That the accused had been in possession of arms/ammunition;

That the accused had then lost arms and/or ammunition;

That the accused failed to report that loss as soon as possible to the nearest police station.

s27 (1) Forfeiture of the weapon.

s27(2) cancellation of any previous license or certificate issued under this Act

s27(3) prohibition on ownership for up to 10 years from date of conviction.

Breaching s27 is an offence in its own right – P200 and/or up to 6 months imprisonment.

Evidence: likely to include but not limited to: Eyewitness evidence; a statement from the police officer; admissions made by the accused.

This offence could be used to target those who are suspected of supplying their own arms and ammunitions but claim ‘loss’. In the absence of strong enough evidence to support charges of transfer/supply, this charge should be considered.

STATEMENT OF OFFENCE Failure to report the loss of arms and ammunition, contrary to section 20 of the Arms and Ammunition Act Chapter 24:01

PARTICULARS OF OFFENCE [Name of the accused(s)] on or about the [date], failed to report the loss/theft/accidental destruction of arms and ammunition [delete as appropriate] OR failed to report that the arms were rendered incapable of use [delete as appropriate].

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THE CORRUPTION AND ECONOMIC CRIME ACT 1994 NEEDS CONSENT OF THE DPP FOR A PROSECUTION

Acceptance of a bribe by a public officer

s25(1) Corruption by a Public OfficerUp to 10 years imprisonment and/or up to P500,000 fine

POINTS TO PROVE ANCILLARY POWERS

Date and location of offence

The Accused was a public officer

An offer of ‘valuable consideration’ was accepted by that officer

The Accused agreed to accept that offer in return for doing or not doing in breach of his official duties.

“Valuable consideration’ is defined in section 23 and includes gifts, loans, fees, contracts, employment, discharge of loans or other liability.

Note the presumptions under section 42 i.e. where proof exists that the accused offered or accepted valuable consideration, there is a presumption that this was for the purposes of inducement as alleged in the particulars of the offence.

s45 Protection of Informants

s40 Evidence of pecuniary resources or property disproportionate to his present or past known sources of income or assets and for which he cannot satisfactorily account can be considered by the court as corroborating evidence that he accepted or agreed a bribe.

This applies to any such resources held by another person on behalf of the accused e.g. a husband or wife – s40(2).

s388 Restraining order under the Proceeds of Serious Crime Act

s37 Upon conviction, confiscation order can be sought under the Proceeds of Serious Crime Act.

Evidence: likely to include but not limited to: Eyewitness evidence, arresting officer, I.O. re: interviews, photographs; any covert surveillance.

Where the bribe has not actually been given and only a promise made, consider s24.

STATEMENT OF OFFENCE Corruption by a Public Officer, contrary to section 25(1) of the Corruption and Economic Crime Act Cap: 08:05

PARTICULARS OF OFFENCE (Name of Accused(s)) on or about the [date], at [location], being a public officer and acting in the course of his duties, agreed to do/not do an act [delete as appropriate] in respect of his duties as a public officer, in return for valuable consideration

Bribing a Public Officer

s25(1) Corruption by a Public OfficerUp to 10 years imprisonment and/or up to P500,000 fine

POINTS TO PROVE ANCILLARY POWERS

Date and location of offence

The Accused gave or offered to give valuable consideration

The recipient of that offer was a public officer

The offer was made for the purposes of inducing or rewarding that officer for doing or not doing some-thing that would be in the course of his duties as a public officer.

“Valuable consideration’ is defined in section 23 and includes gifts, loans, fees, contracts, employment, discharge of loans or other liability.

Note the presumptions under section 42 i.e. where proof exists that the accused offered or accepted valuable consideration, there is a presumption that this was for the purposes of inducement as alleged in the particulars of the offence.

s45 Protection of Informants

s40 Evidence of pecuniary resources or property disproportionate to his present or past known sources of income or assets and for which he cannot satisfactorily account can be considered by the court as corroborating evidence that he accepted or agreed a bribe.

This applies to any such resources held by another person on behalf of the accused e.g. a husband or wife – s40(2).

s388 Restraining order under the Proceeds of Serious Crime Act

s37 Upon conviction, consfication order can be sought under the Proceeds of Serious Crime Act.

Evidence: likely to include but not limited to: Eyewitness evidence, arresting officer, I.O. re: interviews, photographs; any covert surveillance.

Where the bribe has not actually been given and only a promise made, consider s24.

STATEMENT OF OFFENCE Corrupting a Public Officer, contrary to section 25(2) of the Corruption and Economic Crime Act Cap: 08:05

PARTICULARS OF OFFENCE (Name of Accused(s)) on or about the [date], at [location], gave/offered to give [de-lete as appropriate] valuable consideration to a public officer namely [identify] as a reward or inducement to that officer to do or not do something in his/her capacity as a public officer.

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Corruption by Agents e.g. Importers/transporters/exporters

s28(1) Corruption by an AgentUp to 10 years imprisonment and/or up to P500,000 fine

POINTS TO PROVE ANCILLARY POWERS

Date and location of offence

The accused was an ‘Agent’ i.e. acting on behalf of another

The accused accepted or agreed to accept ‘valuable consideration’ from another

He/she did so in return for doing or not doing an act in relation to his principal’s affairs or business.

“Valuable consideration’ is defined in section 23 and includes gifts, loans, fees, contracts, employment, discharge of loans or other liability.

Note the presumptions under section 42 i.e. where proof exists that the accused offered or accepted valuable consideration, there is a presumption that this was for the purposes of inducement as alleged in the particulars of the offence.

s45 Protection of Informants

s40 Evidence of pecuniary resources or property disproportionate to his present or past known sources of income or assets and for which he cannot satisfactorily account can be taken into account by the court as corroborating evidence that he accepted or agreed a bribe.

This applies to any such resources held by another person on behalf of the accused e.g. a husband or wife – s40(2).

s388 Restraining order under the Proceeds of Serious Crime Act

s37 Upon conviction, confiscation order can be sought under the Proceeds of Serious Crime Act.

Evidence: likely to include but not limited to: Eyewitness evidence, arresting officer, I.O. re: interviews, photographs; any covert surveillance.

This offence may be used against agents who falsify customs records on import or export or otherwise conceal/disguise wildlife products in return for a bribe.

STATEMENT OF OFFENCE Corruption by an agent, contrary to section 28(1) of the Corruption and Economic Crime Act Cap: 08:05

PARTICULARS OF OFFENCE (Name of Accused(s)) on or about the [date], at [location], being an agent for another namely [identify the principal if possible], agreed to do/not do an act [delete as ap-propriate], namely [specify the act or omission] in return for valuable consideration.

Corruption of an Agent

s28(2) Corruption of an AgentUp to 10 years imprisonment and/or up to P500,000 fine

POINTS TO PROVE ANCILLARY POWERS

Date and location of offence

The Accused gave or offered to give valuable consideration

The recipient of that offer was an agent as defined in the Act.

The offer was made for the purposes of inducing or rewarding that agent for doing or not doing some-thing that would be in the course of his duties as an agent on behalf of his principal.

“Valuable consideration’ is defined in section 23 and includes gifts, loans, fees, contracts, employment, discharge of loans or other liability.

Note the presumptions under section 42 i.e. where proof exists that the accused offered or accepted valuable consideration, there is a presumption that this was for the purposes of inducement as alleged in the particulars of the offence.

s45 Protection of Informants

s40 Evidence of pecuniary resources or property disproportionate to his present or past known sources of income or assets and for which he cannot satisfactorily account can be taken into account by the court as corroborating evidence that he accepted or agreed a bribe.

This applies to any such resources held by another person on behalf of the accused e.g. a husband or wife – s40(2).

s388 Restraining order under the Proceeds of Serious Crime Act

s37 Upon conviction, confiscation order can be sought under the Proceeds of Serious Crime Act.

Evidence: likely to include but not limited to: Eyewitness evidence, arresting officer, I.O. re: interviews, photographs; any covert surveillance.

This offence may be used against agents who falsify customs records on import or export or otherwise conceal/disguise wildlife products in return for a bribe.

STATEMENT OF OFFENCE Corrupting an agent, contrary to section 28(2) of the Corruption and Economic Crime Act Cap: 08:05

PARTICULARS OF OFFENCE (Name of Accused(s)) on or about the [date], at [location], gave/offered to give [de-lete as appropriate] valuable consideration to an agent namely [identify] as a reward or inducement to that agent to do or not do something in relation to his/her princi-pal’s affairs or business.

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GUIDANCE ON SENTENCING

GENERAL GUIDANCE ON SPECIES FOR SENTENCING SUBMISSIONS

OVERVIEW OF POACHING AND TRANSNATIONAL ORGANISED CRIME

• The illegal wildlife trade is valued at USD 20 billion per year, ivory and rhino horn constitute an important component of this trade;

• Over 1,000 rangers have lost their life in the last 10 years protecting wildlife across the world;• Wildlife crime is undermining economic development, security and destabilizing fragile ecosystems;• Criminal syndicates conduct sophisticated planning; have access to significant finances, access to trade routes and

work in collusion with corrupt member of civil society;• Criminal syndicates are stockpiling ivory and rhino horn, speculating on the future extinction of elephants and rhinos

to maximize financial returns.

SPECIES-SPECIFIC SUBMISSIONS ON POACHING – TO BE COMBINED WITH IDENTIFICATION OF AGGRAVATING FEATURES FROM THE CHECKLIST IN APPENDIX IV.

ELEPHANTS

• The Court of Appeal said in the case of Slamini and Mazwimbo vs the State 2015 which involved possession of two ivory tusks by two defendants, that a term of 2 years imprisonment with no option of a fine was appropriate for first time offenders where no financial benefit was gained. This was to reflect the “adverse effect such a trade, which is the root cause of elephant poaching, can have on our country’s economy”. Even though the two offenders were first offenders and there was no evidence that it was premeditated or part of an organized crime cartel and even though the pair of tusks were recovered, the Court of Appeal found that a term of 2 years imprisonment was proper.

• In 1980 Africa had an estimated population of 1.3 million elephants;• In 2017, the continental population is estimated at just 415,000 elephants (ref: The Great Elephant Census (GEC) in

2017);• Between 2007 – 2014, a total of 144,000 elephants were illegally killed for their ivory (20,000 per year) – this repre-

sents a decline of approximately 30% across the continent.• Botswana has an estimated population of 130,000 elephants;• Protecting Botswana’s wildlife takes a heavy toll on public resources and exposes rangers to severe risk of injury or

death from ruthless poachers;• Elephants contribute a vital role to the Botswana landscape, creating watering holes, germinating seeds, enriching the

soil, maintaining grasslands and contributing the integrity of the ecosystem.

RHINOS

• There are approximately 4,200 black rhinos and 20,500 white rhinos left in Africa;• In 1970 there were approximately 70,000 black rhino in Africa;• Between 2013 – 2015, on average 1,200 rhinos were poached across Africa per year and a total of 5,940 since 2008 (ref:

Rhino Conservation Botswana);• Botswana has a total population of approximately 40 black rhino and 100 white rhino;• Rhinos are slow to reproduce, breeding only once every 4 or 5 years and producing only one calf at a time;• Rhino horn may fetch up to USD 65,000 per kilo in consumer countries in the Far East;• If poaching rates continue across Africa, black rhinos may become extinct by 2025.

GIRAFFES

• There are 4 distinct species of giraffe and 5 subspecies currently recognised;• The giraffe is an iconic species, much like the elephant and the rhino that international tourists pay to see;• The giraffe is an umbrella species, shaping and preserving ecosystems for other animals;• Giraffe population numbers have plummeted across Africa by nearly 40% in the past three decades as a result of poach-

ing for meat, habitat loss and habitat degradation (Ref: Giraffe Conservation Foundation)

• Often Giraffes are poached just for their tails to be used as decorative items and as fly whisks;• Botswana’s last giraffe population estimate was about 12,000 individuals (2004) with a stable population trend.

PANGOLINS

• These are the world’s most trafficked species (see: https://news.nationalgeographic.com/ 2016/03/1160317-pangolins-united-states-endangered-species-act/);

• Around 300 pangolins are poached everyday (Independent Article);• In 2016, CITES up-listed all species of pangolin to Appendix 1 – the highest level of protection;• Pangolin scales are prized in the east for human consumption of their meat and for medicinal purposes of their scale

and also for their blood which is used as a tonic. Their meat can sell at $350 per kilo (CNN article);• There are 4 species of pangolin in Africa;• Pangolins only produce a single offspring per year making the species vulnerable to local extinction because it responds

slowly to poaching pressure;

LIONS

• The very symbol of African wildlife, the Lion is classified as a Vulnerable Species under threat on the International Union for the Conservation of Nature (IUCN) Red list;

• In 1900 there were an estimated 200,000 lions, today it is less than 20,000 (ref: Panthera);• Lion populations have decreased by over 40% in the last 20 years (AWF);• As top predators, the balance of our ecosystems and habitats rely on lions. Without lions, the resulting imbalance

would lead our grasslands being overgrazed, and degraded;• Lions are also one of Botswana’s major tourist attractions and natural resources. The economic value of a living lion

over its life time could amount to up to $2million [based on a Botswana Savuti survey];• Further, only a live animal can reproduce and create another of similar value – only live animals are a sustainable,

potentially renewable resource.• The lion bone trade is a growing business in the far east.• At current rates of decline lions could come extinct in the wild by 2050 (ref: AWF).

BUSHMEAT - GENERALLY

• However small one case might appear, it is part of a much bigger, destructive picture that threatens not only wildlife but the health of our human populations through zoonotic disease transmission. E.g. Foot and Mouth disease, Anthrax and Ebola;

• Competition between humans and other predators for limited prey reduces the ecosystem’s carrying capacity for large carnivores. E.g. lions don’t have enough to eat, bringing them closer to human populations and threatening their survival.

• Bushmeat poaching is an extremely cruel and indiscriminate practice whereby animals are caught in snares and may die a slow and painful death;

• Illegal bushmeat poaching is an increasing threat that has overtaken the scale of trophy poaching;• Bushmeat is seen as a delicacy and a cheaper alternative to other sources of protein.

FORESTRY CRIME – GENERALLY

• Forests play a vital role in local livelihoods, in preserving bio-diversity, supporting natural habitats and balancing our precious eco-system and climate.

• Our forests capture and store greenhouse gases, ensure water catchment, soil preservation and pollination, and home many unique and endangered species found nowhere else in the world.

• While forest crimes are often overlooked, the illegal revenue from this organised crime dwarfs that of wildlife crime (globally estimated at $30-100billion/year: UN).

• In addition to massive lost revenue, forest crimes make managing our sustainable, renewable forestry resources impossible.

• Forest crimes have a devastating impact on all of these aspects of life. These crimes contribute to loss of species and habitat, deforestation, desertification and other forms of environmental degradation.

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• Forest crimes such as the illegal charcoal trade and illegal logging are often linked to organised crime, and the funding of terrorism, and therefore present serious risks to our stability, security and rule of law.

• Charcoal burning also presents a risk of fire within wooded areas and thus a risk to the public.

ILLEGAL GRAZING

• Illegal grazing poses a risk to productive landscapes through overgrazing, erosion and the spread of diseases to wildlife populations;

• Widespread and uncontrolled illegal grazing is contributing to increasing desertification of Botswana’s rangelands;

AGGRAVATING FEATURES CHECKLIST• The species is a particular driver of tourism or other economic benefit to Botswana• The offence against the protected species also took place within a protected area• The accused is a public official charged with the duty of protecting Botswana’s natural resources and heritage or in-

volved law enforcement or military officials in the commission of the offence• The commission of the offence involves international elements• The offence involved a group of persons acting in the execution or furtherance of a common purpose, in which the

accused played a leadership role• The offence was planned or meticulously premeditated and executed• The offence was committed for commercial purposes with a high value• Where damage has been caused, cost of clean-up/restoration/rebuilding is significant• The offence involved a high degree of sophistication in execution such as the use of poisoning, illegal weaponry or

explosives, concealment of trophies, or corruption of others• A protected species was actually killed.• Automatic or semi-automatic weapons were used in the commission of the offence• A law enforcement officer was killed or injured during the execution of the offence• Death or injury to any human.• The offence involved a large number of protected species• The offence caused significant damage to the environment or a community (e.g. illegal grazing)• The offence caused significant financial loss to a community• The offence brought disrepute to a government agency or national government• The offence posed a high risk to public health • The offence has inflamed community tension and conflict

COURT OF APPEAL DECISION ON POSSESSION OF IVORY TUSKS – 2 YEARS MINIMUM

IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA

HELD AT GABORONE

COURT OF APPEAL CRIMINAL APPEAL NO.CLCGB-076-14

HIGH COURT CRIMINAL APPEAL NO.CLHFT-000093-12

In the matter between:

MLUNGISI DLAMINI 1st APPELLANT MOLAMTAEMANG MAZWIMBO 2nd APPELLANT

and

THE STATE RESPONDENT

Appellants in person Attorney Ms K.P.Magashula for the Respondent

J U D G M E N T

CORAM: KIRBY J.P DR SETH TWUM J.A LESETEDI J.A.

KIRBY J.P.

1. The two appellants are before the Court with leave to appeal against their sentences only. They were convicted on 22nd June 2011 by the Magistrate Grade 1 sitting at Letlhakane of the unlawful possession of a pair of elephant tusks with-out any license or authority to justify such possession. They were each sentenced to seven years imprisonment. They appealed to the High Court where the Judge, after confirming their convictions, enhanced their sentences to ten years imprisonment each, being of the view that that was the minimum sentence permissible for a contravention of Section 68(2) of the Wildlife Conservation and National Parks Act Cap 38:01 (“the Act”), which was the section under which they were charged.

2. The facts as they appear from the evidence, are as follows. In January 2011 the second appellant came upon or came into possession of, whilst searching for cattle near his cattlepost, two elephant tusks in circumstances of which there is no direct evidence. There is no suggestion on record that either of the appellants was involved in elephant poaching or that the tusks originated from a poached elephant, which may or may not be the case. The second appellant placed the tusks in a bag, and carried this to Rakops, where he enlisted the aid of the first appellent, an acquaintance who prac-ticed traditional medicine to find a buyer for these. They secreted the bag under a bed in the first appellant’s girlfriend home, where he was staying , while the buyer was sought.

3. The police received a tip-off, and raided the girlfriend’s house where both appellants were present. Each initially tried to lay the blame on the other for the presence of the bag but ample evidence was led at the trial and they were duly convicted. The tusks were recovered.

4. The present appeal is against both the ten year sentence imposed by the Judge, and the original sentence of seven years imprisonment imposed by the Magistrate, both of which sentences, the appellants argue, are far too severe. The Director of Public Prosecutions concedes that enhancement of their sentences by the Judge was improper for reasons

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which appear below, and falls to be set aside but argues that the original seven years sentence was well within the Magistrate’s discretion, and should be confirmed.

5. Because of the importance of these animals to the tourism industry, there are number of sections in the Act imposing heavy penalties for offences relating to elephants and rhinoceros and their products. Botswana is home to the largest herds of free range elephants on the planet, and also hosts a number of the endangered and CITES protected white and black rhinoceros. The two sections relevant to this appeal are Section 68 and Section 79 of the Act.

6. Section 68(2) provides, insofar as is relevant to this appeal, as follows:

“Any person who is found in possession of any tusk or ivory and cannot produce….any reasonable proof of lawful….possession thereof, shall be guilty of an offence and liable to a fine of P50,000 and to imprisonment for 10 years” (my emphasis)

Section 79 provides that: “where any person is convicted of any offence under this Act, having previously been convicted for a contravention of the

Act or of regulations under the Act, the maximum penalty prescribed for such offence shall be increased by fifty per cent:

Provided that where the offence is one in connection with a rhinoceros or an elephant, the penalty for a second or subsequent offence shall be a term of imprisonment without the option of a fine, in addition to the imposition of a fine.”

7. This means that a first offender who is convicted for an offence under Section 68(2) is liable to a fine of P50,000 and to imprisonment for 10 years. A second time offender is liable to a fine of P75000 and to impris-onment for 15 years – and if the offence is related, as here, to elephant tusks, the imposition of both and effec-tive custodial sentence and a monetary fine is mandatory. Those prescribed punishments show the gravity with which the legislature regards such offences, and this should be properly reflected in the sentences im-posed by the Courts upon such offenders. An effective custodial sentence with or without the addition of a fine, would normally be expected for such an offence, even in the case of a first offender.

8. In enhancing the sentences of the two appellants, the Judge in the Court below expressed the view that the seven year imprisonment term was “contrary to the clear directive of Section 68(2)…” and stated that: “In my view, contrary to what the first (applicant) states, the sentence of seven (7) years was not only lenient but it offended the specific and mandatory terms of Section 68(2) that the minimum sentence on conviction is ten (10) years imprisonment. Consequently the learned Magistrate misdirected herself in passing the sentence of seven years”.

9. The Judge a quo proceeded to consider the question of exceptional extenuating circumstances under Section 27(4) of the Penal Code, and concluded that there were none. Of course Section 27(4) is only of application where a mandatory minimum sentence is prescribed by law.

10. In making those findings, the Judge erred in three respects, and this conceded, very fairly, by counsel for the State. Firstly the seven year sentence was not contrary to any clear directive of section 68(2). Secondly , ten years imprisonment was not the minimum sentence prescribed by Section 68(2); and thirdly, Section 27(4) of the Penal Code thus has no application to the case.

11. Turning to the actual wording of the penal provision of Section 68(2), namely that a convict under the sections is “liable to a fine of P50,000 and to imprisonment for 10 years”, the words of Section 38 of the Interpretation Act Cap 01:04 are instructive. The Section provides that:

“38(1) where in any enactment a penalty is prescribed for an offence, the penalty shall, in the absence of any provision to the contrary, be deemed to a maximum and not a fixed penalty.

(2) where in the enactment a term of imprisonment and a fine a prescribed, the penalties may, in the absence of any provision to the contrary, be read as permitting the imposition of one or other or both penalties”

[Section 79 of the Act, reproduced above, is an example of “provision to the contrary” that the section does not apply in this appeal].

12. Those provisions dispose of the Judge a quo’s contention that ten years was the minimum sentence prescribed by Section 68(2) (or indeed that P50,000 was the minimum fine so prescribed). And see also the case of IN RE ATTORNEY GENERAL’S SUBMISSION; STATE vs DINOK (1989) BLR 619CA, where this Court confirmed that the use of the words “liable to” in a penalty provision to no imply mandatoriness. They merely set the maximum sentences permissible.

13. It follows that the enhancement of the two appellants’ sentences by the Judge was impermissible, and falls to be set aside. That leaves the question of the original sentence of seven years imprisonment imposed by the Magistrate which the appellants also feel to manifestly excessive. State counsel argues to the contrary.

14. It is true that sentencing is primarily the task of the trial judge or magistrate and that the appel-late court will only interfere or alter the initial sentence imposed in limited circumstances. These have been summarized by Tebbutt J.P. in DIOKA vs THE STATE (2007) 5 BLR 691 CA at 695 as follows: “Sentencing lies pre-eminently within the discretion of the trial judge, and the court on appeal should not interfere with the trial court’s exercise of that discretion unless the judge has applied incorrect principles in his sentencing; or has misdirected himself in a material respect; or unless the sentence imposed by him is manifestly excessive, in the sense that it varies substantially from the sentence that the Court of Appeal would have imposed had it been the court of first instance.”

15. It need hardly be added that the Court of Appeal has, subject to those self-imposed limitations, the right to alter either upwards or downwards any sentenced imposed by the trial court, in terms of Section 13(5) of the Court of Appeal Act Cap 04”01, in an appeal against sentence.

16. In the present case there is an aggravating feature, in that the appellants were offering the tusks for sale, and thus promoting the universally condemned unlawful trade in ivory products. This certainly makes a custodial sentence appropriate, with or without a fine as well. It should also be a severe sentence to reflect the legisla-ture’s concern about the adverse effect such a trade, which is the root of elephant poaching, can have on our country’s economy. On the other hand the two appellants were first offenders and there is no evidence that their offence was a premeditated sequel to elephant poaching or organized crime. Their offence involved only a single pair of tusks, and the tusks were recovered, so they have enjoyed no financial benefit from their crime. Theirs is thus among the less grave of offences under Section 68(2), though all such offences are serious. Prison sentences for first offenders at the upper end of the permitted range should, in our view, be reserved for more serious offences, involving, for example, multiple tusks, the proceeds of ivory poaching, or organized crime.

17. The maximum sentence which the magistrates could impose was ten years imprisonment plus a fine of P50,000. He chose a custodial sentence of seven years imprisonment, but added no fine. The question to be determined is whether that sentence was manifestly excessive in the circumstances in the sense that it varies substantially from the sentence that this Court would have imposed had it been the Court of first instance.

18. In their argument, the appellants drew to the Court’s attention a number of other more recent cases in which, they say, far lighter sentences have been imposed, sometimes for the possession of a greater number of tusks. Conscious of the desirability on grounds of public policy of a fairly consistent level of sentencing for similar offences, (see NTESANG vs THE STATE (2007) 1 BLR 387 at 390/1) the Court requested counsel for the State to avail with particulars of similar convictions, and the sentences imposed for the period subsequent to 2011, which is when the present appellants were sentenced. This counsel has done.

19. he report filed by counsel has come as something of a shock to this Court. It shows that in the Magistrates Courts sentences for this offence have, up to now, been disturbingly light. In the last three years there have been over sixty cases involving the unlawful possession of elephant tusks and ivory products derived from at least one hundred and fifteen elephants brought before our Courts. This shows an alarming increase in such offences. In almost all of the cases where convictions have been returned (and a number of cases are still pending), sentences ranging from as low as P500 to as much as P25,000 have been imposed. In some cases vehicles and firearms have also been forfeited to the State. In a few cases suspended prison sentences have been imposed, and in three or four other effective custodial sentences have been handed down, of which the highest, before the present case, has been five years imprisonment. That is the sentence which was imposed in the recent case of MOSERAMO MATLHARE & KANGOMBE NDARA vs THE STATE CLHFT-000122-13.

20. In that case, which involved the possession of ten elephant tusks, the Magistrate imposed a sentence of five

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years imprisonment plus a fine of P20,000. The vehicle used was also declared forfeit to the State. The sen-tence was reduced by the High Court on appeal (per Moroka J.) by cancelling the fine, on the grounds the Magistrate believed that both a prison sentence and a fine were compulsory. The five year sentence was con-firmed, in careful and comprehensive judgment.

21. From this it can be seen that the range of sentences being imposed, it appears, on the face of it, to be unaccept-ably wide and generally too lenient, although I accept that each offence and each offender must be considered in the light of its or his or her particular circumstances. Low sentences, and especially low fines, may make the offender feel that such a crime is worthwhile, as elephant tusks fetch a very high price. As I have said, an effective custodial sentence will be proper, and not a light one, for the possession of elephant tusks, even in the case of first offenders. A possible exception might be possession by a tourist (rather than a vendor) of a carved ivory curio, or possession of a family heirloom. There may be others.

22. A Magistrate convicting an offender of possession of elephant tusks would do well to consider a sentence in the region of two years imprisonment for a single pair of tusks found in the possession of a first offender, in-creasing appropriately according to the number of tusks involved and other aggravating circumstances, such as trafficking, recidivism, and involvement in elephant poaching or organized crime . Each case will of course, be considered on its own facts.

23. In the present case, the appellants were first offenders, a single pair of tusks were involved and although they were selling the tusks, there is no evidence of any additional aggravating features. The tusks were recovered, and the appellants did not benefit financially. In those circumstances the sentence of seven years imprison-ment imposed by the Magistrate was too severe. An appropriate sentence is one of two years imprisonment, in the case of both appellants.

24. I make the following order:

(1) The appeal succeeds

(2) The sentence of seven years imprisonment in respect of each appellant is set aside and replaced by a sentence of two years imprisonment.

(3) Since the appellants have already been in custody for a longer period that that while awaiting trial and while awaiting their two appeals, they are to be set at liberty forthwith.

(4) Copies of this judgment are to be supplied to the Director of Public Prosecutions, the Commissioner of Police and the Registrar of the High Court, for distribution to prosecutors and Magistrates, so as to provide guidance in future cases.

APPENDIX I

EXTRACTS FROM THE WILDLIFE CONSERVATION AND NATIONAL PARKS ACT CAP 38:01

s7 Entry into national park

Except as is otherwise provided in this Act, and notwithstanding the provisions of any other written law, no person other than a wildlife officer or a gate attendant shall enter, be in or reside in a national park except under and in accordance with the per-mission of the Minister or of any wildlife officer authorized to grant such permission:

Provided that-

i. the Minister may by notice exhibited at the entrance to a national park grant permission to persons to enter therein on such days and during such hours as may be stated in the notice, and on payment of such fees and subject to such conditions as may be prescribed by regulations;

ii. this subsection shall not apply to persons in the employment of the Government who, with the written permission of the Director enter, are in or reside in a national park in the execution of their official duties as employees of the Government.

s11 Offences in a national park

(2) Any person who contravenes or fails to comply with any other provision of section 7(1), 8(1) or 10 shall be guilty of an of-fence and without derogation from his liability under any other provision of this Act shall be liable to a fine of P2 000 and to imprisonment for 2 years.

s8 Certain acts in a park prohibited

(1) Except as provided in subsection (2), no person other than a wildlife officer or a gate attendant acting in the exercise of his official duties or any other employee of the Government with the written permission of the Director and acting in the exercise of his official duties as such employee, shall-

a. convey into or be in possession of any weapon, explosive, trap or poison within a national park; b. without lawful excuse, be in possession of, or kill, hunt, injure, capture or disturb any animal, or take or destroy any

egg or nest, in a national park; c. cause any damage to or disturb any object of geological, ethnological, historical, archaeological or other scientific inter-

est within a national park, or remove any such object from a national park; d. introduce any wild or domestic animal or any fish or any vegetation into a national park, or permit any domestic animal

to stray into a national park; e. remove from a national park any animal or part of an animal or any vegetation, whether alive or dead, other than an

animal he has lawfully introduced into the park; f. cut, damage or destroy any tree or other vegetation in a national park; g. erect any structure, whether permanent or otherwise, or make any road or airstrip, or otherwise alter the natural

environment, except as may be expressly permitted by the Minister or by a wildlife officer authorized to give such permission;

h. destroy or deface any object, whether animate or inanimate, in a national park; ori. willfully or negligently cause any veld fire in a national park.

s11 Offences in a national park

1. Any person who kills, hunts or captures any animal in a national park shall be guilty of an offence and without dero-gation from his liability under any other provision of this Act shall be liable to a fine of P10 000 and to imprisonment for 7 years.

2. Any person who contravenes or fails to comply with any other provision of section 7(1), 8(1) or 10 shall be guilty of an offence and without derogation from his liability under any other provision of this Act shall be liable to a fine of P2 000 and to imprisonment for 2 years.

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s10: Mining in a national park

Subject to any mining rights lawfully acquired in any area by any person before the date on which such area became a national park, any prospecting or mining in the area or the acquisition of any prospecting or mining rights in the area in terms of the Mines and Minerals Act shall be prohibited except with the written permission of the Minister.

s11: Offences in a national park

(2) Any person who contravenes or fails to comply with any other provision of section 7(1), 8(1) or 10 shall be guilty of an of-fence and without derogation from his liability under any other provision of this Act shall be liable to a fine of P2 000 and to imprisonment for 2 years.

s11 Offences in a national park

(1) Any person who kills, hunts or captures any animal in a national park shall be guilty of an offence and without derogation from his liability under any other provision of this Act shall be liable to a fine of P10 000 and to imprisonment for 7 years.

s12 Game reserves and sanctuaries

(3) In any game reserve or sanctuary, no person shall hunt or capture any animal, or species or variety, specimen or sex of any animal specified in relation to such game reserve or sanctuary, except only under and in accordance with the terms and conditions of a permit issued under section 39, and any person who contravenes the provisions of this section shall be guilty of an offence and, without derogation from his liability under any other provision of this Act, shall be liable to a fine of P5 000 and to imprisonment for 5 years.

s13: Private game reserves

1. The owner of private land may apply in writing to the President to have his land declared a private game reserve, and the President may, by order published in the Gazette, and subject to such terms and conditions as the President may determine, declare such land to be a private game reserve for the protection and preservation therein of all wild animal life or of such species or variety of animals as may be specified in the order.

2. The President may similarly amend or revoke an order published under this section. 3. Within a private game reserve, no person shall hunt or capture any animal or any species or variety of an-

imal which is specified in the order declaring it to be a private game reserve, and any person who contra-venes the provisions of this subsection shall be guilty of an offence and, without derogation from his li-ability under any other provision of this Act, shall be liable to a fine of P5 000 and to imprisonment for 5 years: Provided that the provisions of this subsection shall not apply to the hunting or capture of an animal by the owner of the land, or by a person acting under his written authority, when such hunting or capture is under and in accordance with such terms and conditions as were determined by the President under subsection (1), or as the Director may, in the interest of proper wildlife management, approve.

s16: Controlled hunting areas

(3) Except for persons authorized therefor under sections 30, 39 and 40, and notwithstanding the issue of any licence to hunt under this Act, no person shall hunt or capture any animal in a controlled hunting area without such authority to hunt in that area as shall be endorsed on his licence, and without paying such fee, as may be prescribed.

(6) Any person hunting or capturing any animal in a controlled hunting area without such authority and paying such fee as may be prescribed in accordance with subsection (3), or contrary to the terms of such authority, shall be guilty of an offence and, without derogation from his liability under any other provision of this Act, shall be liable to a fine of P2 000 and to im-prisonment for 2 years.

(5) Any person hunting in a controlled hunting area shall, as soon as possible and in any event within 7 days of the completion of such hunting, unless otherwise authorized by a licensing officer and endorsed on his licence, report such completion to a wildlife officer, and any person who fails to comply with the provisions of this subsection shall be guilty of an offence and liable to a fine of P500 and imprisonment for 6 months.

s17: Protected game animals

1. (1) The animals specified in the Sixth Schedule shall be protected game animals throughout Botswana. 2. (2) No person shall, except only under and in accordance with the terms and conditions of a permit issued by the

Director under section 39 or section 40, hunt or capture any protected game animal, and any person who contra-venes the provisions of this subsection shall be guilty of an offence and liable to a fine of P10 000 and to imprison-ment for 7 years: Provided that, where the animal in respect of which the offence is committed is a rhinocer-os, the offender shall be liable to a fine of P100 000, and to imprisonment for 15 years.

s19: Hunting and capturing of animals generally

(3)(a): Anypersonwhocontravenestheprovisionsofsection18orsubsection(1)ofthissection shall be guilty of an offence and shall be liable-

1. (a) if the contravention is in respect of a partially protected game animal, to a fine of P5 000 and to imprisonment for 5 years: Provided that where the animal in respect of which the offence is committed is an elephant, the offender shall be liable to a fine of P50 000, and to imprisonment for 10 years;

2. (b) if the contravention is in respect of any animal specified in Part II of the Seventh Schedule, to a fine of P2 000 and to imprisonment for 2 years;

3. (c) if the contravention is in respect of a bird specified in Part III of the Seventh Schedule, to a fine of P1 000 and to imprisonment for 1 year;

4. (d) if the contravention is in respect of any non-designated animal, or in respect of any term or condition of any licence or permit issued to that person, to a fine of P500 and to imprisonment for 6 months.

s20 Landholder’s privileges

5. (5) Notwithstanding any other provision of this Act, an individual entitled to landholder’s privileges or to enjoy land-holder’s privileges in accordance with the provisions of subsection (1) or subsection (2) may, subject to such fees as may be prescribed, hunt and kill, without a licence or permit, any animals, other than protected and partially protected game animals, within the limits of the land in respect of which he is entitled to or to enjoy such privileges, but shall not kill any animal which is listed in the Eighth Schedule in excess of the number specified in relation to that animal in the second column of that Schedule within any one period such as is specified in the corresponding entry in the third column of that Schedule.

6. (6) Any person who contravenes the provisions of subsection (5) shall be guilty of an offence and, where no other penalty is provided under this Act in respect of the hunting of the animal concerned, shall be liable to a fine of P500 and to imprisonment for 6 months.

s20 Landholder’s privileges

(8) The owner or occupier of land in respect of which he is entitled to landholder’s privileges shall not give permission to any other person to hunt and kill any game animal on such land

s21 Use of landholder’s privileges for profit

Any owner or occupier of land entitled to landholder’s privileges may, for his own profit, with the approval of the Director, authorize, in writing, any person who is not so entitled, to hunt on such land those animals that he himself would be entitled to hunt:

Provided that-

1. (a) nothing in this section shall entitle or authorize such person to hunt any animal on such land without being in

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possession of such licence or permit to hunt such animal as may be otherwise prescribed in this Act; and 2. (b) the owner or occupier shall not give such authority unless he has taken all reasonable steps to satisfy himself that

such person is in possession of such licence or permit, and any owner or occupier who contravenes or fails to comply with the provisions of this paragraph shall be guilty of an offence and liable to a fine of P500 and to imprisonment for 6 months.

s22 Record of animals killed in exercise of landholder’s privileges

1. (1) Every owner or occupier of land in respect of which he is entitled to landholder’s privileges, shall keep and maintain a record of every animal killed on that land by himself or by any other person hunting on that land with his permission or authority, and shall make that record available forthwith for inspection by any wildlife officer or any police officer who requires him so to do.

2. (2) The record maintained under this section shall contain, in respect of every animal killed, the following particulars- (a) its species and sex;

(b) the date on which it was killed;

(c) the location where it was killed;

(d) the full name of the person who killed it.

(3) Every owner or occupier of land in respect of which he is entitled to landholder’s privileges shall, not later than the 15th February in each year, produce to a licensing officer, the record kept by him under this section, or a true copy of every entry made therein, during the immediately preceding year commencing on the 1st January.

(4) Every owner or occupier of such land as is referred to in this section, who contravenes or fails to comply with any of the provisions of this section shall be guilty of an offence and liable to a fine of P500 and to imprisonment for 6 months. unless such other person is either the holder of a valid licence or permit entitling or authorizing him to hunt and kill such animal on such land, or is otherwise entitled to hunt and kill such animal on such land, and any owner or occupier who contravenes the provisions of this subsection and has failed to take all reasonable steps to satisfy himself that such other person was so entitled or authorized to hunt and kill such animal on that land shall be guilty of an offence and liable to a fine of P500 and to impris-onment for 6 months.

s24 Game farms and ranches

(4) Any person granted permission under subsection (1) shall be entitled to farm, ranch, hunt or capture animals on his land, for commercial purposes, subject to the provisions of this section and any terms and conditions subject to which such permis-sion was granted:

Provided that protected game animals and partially protected game animals shall only be farmed, ranched, hunted or captured on such land if specifically authorized by the Director.

(6) Where the game farm or ranch is enclosed by a game proof fence to the satisfaction of the Director, there shall be no limit to the number of animals that are specified in Part II of the Seventh Schedule that may be killed or captured on the farm or ranch, unless the Director otherwise directs, but where the farm or ranch is not enclosed by a game proof fence to the satisfaction of the Director, the culling of animals shall be subject to the written permission of the Director, who shall also, if satisfied that such culling is a sustainable form of game utilization, specify the number of animals that may be culled, and such culling shall be subject to the payment of such fees as may be prescribed.

(8)(b): The provisions of section 39(1)(c) shall apply in respect of obtaining permission for the sale of animals, or meat or tro-phies from such animals, and such animals, meat or trophies shall not be otherwise disposed of in any manner not approved by the Director.

(12) No person shall hunt or capture any animal on a game farm or ranch, or be on such farm or ranch with intent to hunt or capture any animal, without the permission of the owner or occupier thereof.

(13) Any person who contravenes any provision of this section shall be guilty of an offence and, without derogation from

his liability under any other provision of this Act or any other written law, shall be liable, in respect of an offence under subsections (4), (6), (8)(b) or (12) to a fine of P5 000 and to imprisonment for 5 years, and in respect of any offence under any other subsection, to a fine of P500 and to imprisonment for 6 months.

s32 Number of licences and animals

(3) Any person who makes any statement which to his knowledge or which he should have known is false or in any way mis-leading in connection with an application for a licence, which leads to or is likely to lead to his being issued with more licences than he is entitled to, or to the issue of licences purporting to entitle him to hunt more animals than he is entitled to hunt, shall be guilty of an offence and liable to a fine of P1 000 and to imprisonment for one year.

s33 Disqualification for grant of licence

(2) Any person who fails to inform a licensing officer, at the time of his application for any licence under this Act, of any fact which might disqualify him for the grant of a licence, or that he has been previously refused any licence or who makes a false declaration in or in connection with an application for any such licence, shall be guilty of an offence and liable to a fine of P1 000 and to imprisonment for 1 year.

s34 Hunting card

(6) Any person who-

1. (a) makes a false statement to a licensing officer for the purpose of obtaining a hunting card; 2. (b) uses another person’s hunting card; 3. (c) obtains or attempts to obtain another person’s hunting card; 4. (d) fails to record on it information which he is required to record on it, or records on it information which he knows

or ought to know is false or misleading; or 5. (e) refuses or fails to produce it for inspection when required to do so in accordance with the provisions of subsection

(4), shall be guilty of an offence and liable to a fine of P500 and to imprisonment for six months.

s37 Loss or destruction of licence

1. (1) If a licence is lost or destroyed, the licence holder shall, within 21 days of such loss report the event to the licensing officer who issued it, and shall at the same time furnish the licensing officer with a written statement setting out to the best of his recollection the entries that had been recorded in the register attached to the licence, or, but for the loss or destruction thereof, would have been recorded therein.

2. (2) Any person who contravenes the provisions of this section shall be guilty of an offence and liable to a fine of P500 and to imprisonment for 6 months.

s38 Register of animals killed

1. (1) Every single game licence holder shall, in animals the register attached to his licence, make a record of any animal killed by him, including any animal killed by accident or in error, and any animal deemed to have been killed by him in terms of such licence under section 44, and any animal wounded by him.

2. (2) Where under this section any person is required to keep and maintain a register, he shall- (a) where an animal is killed or deemed to have been killed by him, at the time of the killing where possible, and in any event before the animal is moved or dismembered, record the event in such register, and the date and time of the killing; (b) where an animal is wounded, record the date time and circumstances. of the event in such register as soon as pursuit of the wounded animal is abandoned.

3. (3) Every licence holder shall, in addition to keeping and maintaining a register under this section, within thirty days of the termination of hunting, or of the termination of his licence, or the termination of the hunting season, whichever is the soonest, submit to a licensing officer the return attached to his licence, duly completed, whether or not any ani-mals were killed or wounded by him in accordance with the terms of the licence.

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4. (4) Any person who, being required under this section to keep and maintain a register, or submit a return within the specified period-

(a) fails to do so; (b) fails to record therein any particular which he is required to record therein; (c) makes, or is party to the making of, any false entry therein; (d) fails to produce his register upon the request of a licensing officer or any other person entitled under this Act to request its production; or (e) fails to furnish a true copy of his register to a licensing officer within twenty one days of being requested to do so by a licensing officer, shall be guilty of an offence and liable to a fine of P500 and to imprisonment for 6 months.

s41 Conditions applicable to permits

(1) Every permit issued under this Act shall be subject to such terms and conditions as may be prescribed and to all such other terms, conditions and requirements as the Minister, the Director or the licensing officer, as the case may be, deems fit to impose in each case, and as shall be endorsed on the permit, and any person to whom such permit is issued who contravenes or fails to comply with any of the terms, conditions or requirements subject to which it is issued shall be guilty of an offence and liable to a fine of P1 000 and to imprisonment for 1 year, and where the contravention is in respect of the killing or capturing of any animal, shall be liable to the same penalties as are provided in sections 17, 18 and 19 in respect of the hunting or capture of the same animal.

(4) Any permit holder who is required under subsection (3) to return such permit and who fails to do so within the period pre-scribed, shall be guilty of an offence and liable to a fine of P500 and to imprisonment for 6 months.

s43 Professional guides

(1) No person shall act as a professional guide unless he is in possession of such valid professional guide’s licence as may be prescribed, and any person who contravenes the provisions of this subsection shall be guilty of an offence and liable to a fine of P2 000 and to imprisonment for 2 years.

(4) A professional guide’s licence shall not be transferable, and no person other than the person to whom it is issued shall op-erate under the authority of a professional guide’s licence, and any person who contravenes the provisions of this subsection shall be guilty of an offence and liable to a fine of P2 000 and to imprisonment for 2 years.

s44 Professional hunters

(1) No person shall act as a professional hunter unless he is in possession of such professional hunter’s licence as may be pre-scribed, and any person who contravenes the provisions of this subsection shall be guilty of an offence and liable to a fine of P5 000 and to imprisonment for 5 years.

(4) A professional hunter’s licence shall not be transferable, and no person other than the person to whom it is issued shall operate under the authority of such licence, and any person who contravenes the provisions of this subsection shall be guilty of an offence and liable to a fine of P2 000 and to imprisonment for 2 years.

(6) A professional hunter’s licence shall not entitle the holder to shoot at any animal except as provided in section 47, or to pre-vent the escape of an animal already wounded, and any such licence holder who contravenes the provisions of this subsection shall be guilty of an offence and liable to a fine of P5 000 and to imprisonment for 5 years.

(8)(a) A professional hunter shall take all reasonable steps to ensure that his client understands the terms and conditions of any licence or permit issued to him and does not contravene any of those terms and conditions or any of the provisions of this Act, and where his client commits an offence under this Act or any regulations made under this Act he shall report the commission of such offence to a wildlife officer.

(b) Without derogating from the liability of his client in respect of any contravention of this Act or any regulations under this Act, any professional hunter who fails to comply with any provision of paragraph (a) shall be guilty of an offence and liable to a fine of P5 000 and to imprisonment for 5 years.

(c) Where a client is convicted of an offence under this Act or any regulations made thereunder it shall be presumed that the professional hunter with whom he was hunting failed to take all reasonable steps to ensure that the client understood the terms and conditions of his licence or permit or to prevent the client from contravening the Act or the regulations, unless the contrary is proved.

s45 Prohibition of certain activities in specified areas

(2) No person shall, in any such defined area, hunt, capture or willfully disturb any animal or any species or sex of animal or any specimen of animal, the hunting or disturbance of which is prohibited in accordance with an order issued under subsection (1), and no person shall remove or cause to be removed any animal or any part of an animal from any such area, the removal from which is prohibited by the order, and any person who contravenes the provisions of this subsection shall be guilty of an offence and without derogation from his liability under any other provision of this Act shall be liable to a fine of P2 000 and to imprisonment for 2 years.

s46 Killing of animals causing damage

(6) Any person who-

1. (a) kills any animal in defence of property otherwise than in accordance with the provisions of subsection (1); 2. (b) fails to report the killing of any animal in accordance with the provisions of subsection (2); or 3. (c) uses, retains or disposes of any trophy or meat of the animal so killed otherwise than under or in accordance with

this section, shall be guilty of an offence and without derogation from his liability under any other provision of this Act shall be liable to a fine of P1000 and to imprisonment for 1 year.

s47 Killing of animals in self defence

(3) Where any game animal is killed in circumstances such as are referred to in subsection by any person who is not the holder of a licence or permit entitling or authorizing him to kill such animal, such animal shall be a Government trophy and such per-son shall as soon as possible, and in any event not later than 7 days after the killing, report such killing to the nearest convenient wildlife officer or police station, and shall, if so directed, deliver the animal or such parts thereof as may be specified, to such wildlife officer or police station, as the case may be, and any person who fails to comply with the provisions of this subsection shall be guilty of an offence and liable to a fine of P500 and to imprisonment for 6 months.

s48 Killing of animals by accident or in error

(4) Any person who contravenes the provisions of subsection (1) or (3) shall be guilty of an offence and liable to a fine of P1 000 and to imprisonment for 1 year:

Provided that-

1. (a) where the animal killed is a rhinoceros the offender shall be liable to a fine of P100 000, and to imprisonment for 15 years; and

2. (b) where the animal killed is an elephant the offender shall be liable to a fine of P50 000, and to imprisonment for 10 years.

s49 Hunting or capturing of animals without permission of land owner or occupier

(1) No person shall enter upon any land for the purpose of hunting or capturing any animal without the written permission of the owner or occupier of such land or unless he is accompanied by such owner or occupier or by the duly appointed represent-ative of such owner or occupier, and any person who contravenes the provisions of this subsection shall be guilty of an offence and shall be liable to a fine of P1 000 and to imprisonment for 1 year.

(3) Any police officer or any owner or occupier of land who finds any person such as is mentioned in subsection (2) upon such land, may require such person to satisfy him that he is not on the land in contravention of the provisions of subsection (1), and if such person is unable so to give satisfactory proof, may demand from him his full name and address and may forthwith direct

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him to leave the land, and if such person fails to give his name and address, or gives a false or incomplete name and address, or fails forthwith to leave the land after being directed to do so, he shall be guilty of an offence and liable to a fine of P 1000 and to imprisonment for 1 year.

s50 Conveyance of loaded weapon in certain circumstances

(1) Any person who conveys in any vehicle any loaded weapon, other than a revolver or pistol, whilst travelling along a road to which the public has access, traversing private land in any area where game is or is likely to be found, not being the owner or occupier of such land, or not having the permission of the owner or occupier of the land to hunt any animal thereon, or not having been given the permission of the owner or occupier to convey such weapon across such land in such vehicle, shall be guilty of an offence and liable to a fine of P1 000 and to imprisonment for 1 year.

s52 Prohibition of certain activities in specified areas

(2) Any person obstructing or hindering any person carrying out a search in terms of the provisions of subsection (1), shall be guilty of an offence and liable to a fine of P500 and to imprisonment for 6 months.

s54 Wounding of animals

(4) Any person who fails to comply with any provision of this section with which it is his duty to comply shall be guilty of an offence and liable to a fine of P5 000 and to imprisonment for 5 years.

s55 Hunting or capturing by night

(1) Subject to the provisions of subsection (2) no person shall hunt or capture any game animal by night or use any dazzling light for the purpose of hunting or capturing any game animal, and any person who contravenes the provisions of this subsec-tion shall be guilty of an offence and without derogation from his liability under any other provision of this Act shall be liable to a fine of P5 000 and to imprisonment for 5 years.

s56 Hunting or capturing during closed season

No person shall hunt or capture any game animal during the closed season, and any person who contravenes the provisions of this section shall, without prejudice to his liability to be prosecuted under any other section of this Act, be guilty of an offence and liable to a fine of P5 000 and to imprisonment for 5 years:

Provided that the provisions of this section shall not apply to the holder of a valid permit granted under this Act which specif-ically authorizes the holder thereof to hunt or capture such game animal during the closed season, or to the holder of a special game licence issued under section 30(2), or to any person acting in accordance with the provisions of section 46(1) or section 47(1).

s57 Unlawful methods of hunting

(6) Any person who contravenes the provisions of this section shall be guilty of an offence and without derogation from his liability under any other provision of this Act shall be liable to a fine of P5 000 and to imprisonment for 5 years.

s58 Elephant and buffalo hunting

(2) Any person who hunts an elephant or a buffalo with a weapon other than one of a calibre and type specified for such hunting in subsection (1) shall be guilty of an offence and, without prejudice to his liability to any other penalty in respect of any other offence under this Act, shall be liable to a fine of P500 and to imprisonment for 6 months.

s59 Killing of lion or leopard

Any licence holder who kills a lion or a leopard shall produce its skull to a licensing officer for inspection, and any person who fails to comply with the provisions of this subsection shall be guilty of an offence and liable to a fine of P500 and to

imprisonment for 6 months.

s60 Sale of animals or eggs thereof

(3) Any person who contravenes the provisions of subsection (1) shall be guilty of an offence and liable to a fine of P1000 and to imprisonment for 1 year.

s61 Purchases of animals or parts or eggs thereof

(1) No person shall purchase from another person any game animal or non-designated animal or the meat, eggs or trophy thereof without satisfying himself, by reasonable evidence, that such other person is the holder of a valid permit granted to him in terms of section 39(1)(c) authorizing him to sell such animal, meat, eggs or trophy, or that he is entitled to do so in ac-cordance with the provisions of section 60 or by virtue of regulations made under section 30, and any person who contravenes the provisions of this subsection shall be guilty of an offence and liable to a fine of P2 000 and to imprisonment for 2 years.

s62 Export and import of animals, etc.

(5) Any person who contravenes the provisions of subsection (1) shall be guilty of an offence and liable to a fine of P10 000 and to imprisonment for 7 years:

Provided that-

(a) where the contravention is in respect of a rhinoceros or any trophy thereof, the penalty shall be a fine of P100 000, and imprisonment for 10 years; or

(b) where the contravention is in respect of an elephant or any trophy thereof, the penalty shall be a fine of P50 000, and im-prisonment for 10 years.

s64 Dealing in trophies

No person shall sell or otherwise deal in, or manufacture any article from, any trophy that has not been lawfully imported into, or which has not been obtained from an animal lawfully killed or captured in, Botswana, and any person who contravenes the provisions of this section shall be guilty of an offence and liable to a fine of P5 000 and to imprisonment for 5 years:

Provided that where the offence is in respect of a trophy from a rhinoceros or an elephant, the penalties shall be as provided respectively in paragraphs (a) and (b) of the proviso to section 62(5).

s65 Trophy dealer’s licence

(7) Any person who contravenes or fails to comply with the provisions of this section or with the terms and conditions subject to which his licence was issued, shall be guilty of an offence and liable to a fine of P5 000 and to imprisonment for 5 years.

s66 Records and returns by trophy dealers

(1) A trophy dealer shall keep and maintain a register in such form and shall make such returns as may be prescribed, and any trophy dealer who contravenes or fails to comply with the provisions of this section shall be guilty of an offence and liable to a fine of P2 000 and to imprisonment for 2 years.

s67 Killing of elephant and rhinoceros

(1) Any person who kills an elephant shall produce its lower jaw, its tail and its tusks to a licensing officer at such wildlife office as may be presribed for such purpose, within 7 days immediately after the killing, or within such extended period as the licens-ing officer may, in any special circumstances, authorize, together with the appropriate licence or permit, and where the licence or permit holder fails to produce any one of such parts, or the licence, the licensing officer may refuse to register the tusks.

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(5) Any person who fails to comply with the provisions of subsection (1), or who is found in possession of tusks which have not been registered in accordance with the provisions of subsection (2), shall be guilty of an offence and liable to a fine of P50 000 and to imprisonment for 10 years.

(6) Any person who kills a rhinoceros shall produce the horn thereof to a licensing officer, at such wildlife office as may be prescribed for that purpose, as soon as possible, and in any event within 7 days immediately after the killing, and report the circumstances of the killing, the location and the date and time thereof, and any person who fails to comply with the provisions of this subsection or who is found in possession of a rhinoceros horn which has not been produced in accordance with the provisions of this subsection shall be guilty of an offence and liable to a fine of P100 000 and to imprisonment for 15 years.

s68 Ivory or tusks imported into or acquired in Botswana

(2) Any person who fails to comply with or contravenes the provisions of subsection (1), or who is found in possession of any tusk or ivory and cannot produce a certificate of ownership issued under section 67(2) therefor, or proof of registration thereof or any reasonable proof of lawful importation or possession thereof, shall be guilty of an offence and liable to a fine of P50 000 and to imprisonment for 10 years.

s69 Transfer of ivory

(3) Any person who contravenes the provisions of this section shall be guilty of an offenc and liable to a fine of P50 000 and to imprisonment for 10 years.

s70 Rhinoceros horn

Any rhinoceros horn shall be a Government trophy and, except only as provided in section 67(6), no person shall have in his possession, transfer or in any way deal in rhinoceros horn, and any person who contravenes the provisions of this section shall be guilty of an offence and liable to a fine of P100 000 and to imprisonment for 15 years:

Provided that the provisions of this section shall not apply in respect of the possession of any duly registered rhinoceros horn by a person who acquired it lawfully prior to the commencement of this Act and who registers such possession with a licensing officer, at such wildlife office as may be prescribed for the purpose, within three months after the commencement of this Act.

s71 Government trophies

(3) Any person who contravenes the provisions of subsection (2) or who is found in unlawful possession of a Government tro-phy shall be guilty of an offence and, without derogation from his liability under any other provision of this Act, shall be liable to a fine of P5 000 and to imprisonment for 5 years.

s73 Powers of wildlife officers, gate attendants and police officers

(6) Any person who fails to comply with any request or direction made or given in accordance with powers conferred by this section, or who gives information which he knows or ought reasonably to know is false, shall be guilty of an offence and liable to a fine of P2 000 and to imprisonment for 2 years.

(7) Any person who assaults, willfully obstructs or resists arrest by a wildlife officer or a gate attendant in the performance of his duties under this Act, and any person assisting or encouraging such person, shall be guilty of an offence and liable to a fine of P5 000 and to imprisonment for 5 years.

s74 Erection of road barriers

(2) Where a person is required to do so by a uniformed wildlife officer in the exercise of his duties under subsection (1), whether by word, sign or signal, he shall stop, and any person who fails to comply with such request shall be guilty of an offence and liable to a fine of P1 000 and to imprisonment for 1 year.

s81 Hunting in forest areas

Nothing in this Act, and no licence, permit authority or permission issued or granted under this Act shall, or shall be deemed to, authorize any person to hunt or capture any animal in an area declared to be a reserved area under the Forest Act except under and in accordance with such permit, authorization or permission as may be required by that Act, and any person who contravenes the provisions of this section shall be guilty of an offence and, without derogation from his liability under any other provision of this Act or the Forest Act, shall be liable to a fine of P2 000 and to imprisonment for 2 years.

s82 Keeping of animals

1. (1) No person shall keep or possess any live animals in confinement except only under and in accordance with a permit issued therefor by the Director:

2. Provided that this shall not apply to the temporary keeping or possession of a sick or injured animal for the purpose of affording it treatment, or to animals within private game farms, ranches or reserves surrounded by game proof fences, or to such animals and in such circumstances as may be specified in regulations and sold or kept as pets.

3. (2) A permit issued by the Director in terms of subsection (1) may be granted subject to such conditions relating to the manner in which the animal is to be kept as the Director may see fit to impose, or as may be prescribed.

4. (3) No person shall exhibit any animal to the public, or to any section thereof, except in accordance with a permit is-sued by the Director and such conditions thereof as the Director may see fit to impose relating to the manner in which the animal is to be kept and members of the public are to be allowed access to it, or as may be prescribed.

5. (4) Any person keeping an animal in accordance with a permit issued under this section shall not release such animal or otherwise dispose of it without first obtaining the approval of the Director.

6. (5) Where a dangerous animal or an animal not indigenous to Botswana is kept in confinement in accordance with the provisions of subsection (1), or is confined within a game proof fence on a private game reserve, ranch or farm, the person keeping it shall take all reasonably possible steps to ensure that it does not escape, and if it does so shall take all reasonably possible steps to recapture it or kill it.

7. (6) Any person who contravenes or fails to comply with the provisions of this section, or who fails to comply with the provisions of any permit issued under this section shall be guilty of an offence and liable to a fine of P2 000 and to imprisonment for 2 years.

s84 Powers of licence and permit holders etc. in respect of other hunters

(2) Any person who, upon being requested to do so in accordance with subsection (1)-

(b) refuses or fails to furnish his full name and address, or furnishes a false or incomplete name and address, shall be guilty of an offence and liable to a fine of P500 and to imprisonment for 6 months.

s85 Personation of officers etc.

Any person who-

1. (a) falsely represents himself to be a wildlife officer, honorary officer or a gate attendant; or 2. (b) without lawful excuse wears any uniform, or carries or displays any badge or letter or other document of appoint-

ment or identity authorized or required under this Act to be worn or carried by a wildlife officer, honorary officer or gate attendant, or so nearly resembling any such uniform, badge, letter or other document as to be calculated to deceive,

shall be guilty of an offence and liable to a fine of P2 000 and to imprisonment for 2 years.

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SIXTH SCHEDULE

PROTECTED GAME ANIMALS (Section 17)

Night-ape Otter

Pangolin All egrets

Aardwolf All bitterns

Brown hyaena Hammerkop

Cheetah All storks

Serval All ibises

Blackfooted cat Spoonbill

Wild dog All flamingoes

Honey badger Secretary bird

Civet All vultures

Antbear All falcons

Rock dassie All kites

Yellow-spotted dassie All eagles

Rhinoceros All buzzards

Hippopotamus All sparrowhawks

Giraffe All goshawks

Klipspringer All harriers

Oribi All cranes

Sharpe’s steenbok Kori bustard

Mountain reedbuck Stanley bustard

Waterbuck All jacanas

Puku Fishing owl

Roan antelope Narina trogon

Vaal rhebok Python

All pelicans

All herons

SEVENTH SCHEDULE

GAME ANIMALS AND BIRDS (Section 18)

PART I Partially Protected Game Animals

PART II Game Animals which may be

Hunted under Licence

PART III Game Birds which may be

Hunted under Licence

Leopard Vervet monkey Spur-wing goose

Lion Baboon Egyptian goose

Elephant Spotted hyaena Whitefaced duck

Chobe bushbuck Caracal Knob-billed duck

Sable antelope Wild cat Cape shoveller

Eland Bateared fox Yellow-billed duck

Silver fox Red-billed teal

Sidestriped jackal Cape teal

Blackbacked jackal Southern pochard

Elephant Francolin

Zebra Quail

Wild pig Guinea-fowl

Warthog Snipe

Duiker Sandgrouse

Steenbok Green pigeons

Kudu Turtle doves

Sitatunga

Bushbuck

Impala

Reedbuck

Lechwe

Springbok

Gemsbok

Buffalo

Blue wildebeest

Hartebeest

Tsessebe

Scrub hare

Cape hare

Porcupine

Springhare

Ostrich

Crocodile

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EIGHTH SCHEDULE

MAXIMUM NUMBER OF ANIMALS WHICH MAY BE KILLED BY VIRTUE OF LANDHOLDER’S PRIVILEGES DURING ANY ONE PERIOD S P E C I F I E D ( S e c t i o n 20)

Animal Maximum permitted to be killed Relevant period

Zebra 10 one year

Kudu 10 one year

Gemsbok 10 one year

Wildebeest 10 one year

Hartebeest 10 one year

Ostrich 10 one year

All other game animals 25 of each specie one year

NINTH SCHEDULE

DANGEROUS ANIMALS (Section 2)

Leopard

Lion

Elephant

Rhinoceros

Hippopotamus

Buffalo

Crocodile

TENTH SCHEDULE

NOTICE OF INTENDED PROSECUTION (Section 76)

DEPARTMENT OF WILDLIFE AND NATIONAL PARKS

WILDLIFE CONSERVATION AND NATIONAL PARKS ACT (Chapter 38:01)

To: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Wildlife Office: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Address: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date . . . . . . . . . . . . . . . . . . . . . . .20 . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Birth place: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Nationality: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Age: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sex: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Identity/Passport No: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

NOTICE OF INTENDED PROSECUTION

IT is al leged that on 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . in the . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

District/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . National Park/Game Reserve,

you contravened section/regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

of the Wildli fe Conservation and National Parks Act/Statutory Instrument

No . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Description of the offence)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

YOU are now informed that consideration wil l be given to prosecuting you in terms of the aforesaid section/regulation.

TAKE note that you may pay P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Admission of Guilt within

. . . . . . . . . . . . . . . . . . . . . . days from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . police

station. If you decline to pay Admission of Guilt , in terms of section 76 of the Wildli fe Conservation and National Parks Act, application wil l be made to a public prosecutor for a summons ordering you to appear before the Magistrate’s Court at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . on the . . . . . . . . . . . . . . . . . . . . . . . . . . day of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . hours to answer the aforesaid charge(s).

Issued by No: . . . . . . . . . . . . . . . . . . Rank . . . . . . . . . . . . . . . . . Name: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Signature of the Accused: . . . . . . . . . . . . . . . . . . . . . . . . . . . Signature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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