Thursday, April 3, 2008

Preliminary Investigations

A common dilatory defense tactic in a criminal case is to move for the remand of the case to the Office of the Prosecutor for another preliminary investigation on the allegation that the accused (who had escaped from the locality where he committed his crime) was allegedly “not actually notified” of the original preliminary investigation conducted by the investigating prosecutor.

In a murder case that I am now prosecuting, I have filed an opposition to such a similar motion.

May I reproduce below in full my said opposition for legal research purposes of the readers:


(To: Motion for Reconsideration;

Re: Order, Dated March 7, 2008)

THE PRIVATE PROSECUTION respectfully states:

1. The accused, by counsel, in seeking the reconsideration of the subject Order, dated March 7, 2008, argues that he was deprived of his right to due process of law because he had not been “actually notified” of the previous preliminary investigation and that, therefore, the case must be remanded to the Office of the City Prosecutor for another preliminary investigation. The private prosecution humbly begs to disagree therewith.

2. It is noteworthy to review the relevant provisions of the Rules of Criminal Procedure:

2.1. Sec. 3 (d), Rule 112, of the Rules of Criminal Procedure provides that “if the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating office shall resolve the complaint based on the evidence presented by the complainant”.

2.2. Sec. 4 of Rule 112 provides (a) that “if the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information”; (b) that he “shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof”; (c) that the accused “was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence”.

2.3. Section 6 (a) of Rule 112 provides that “within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence”; that “he may immediately dismiss the case if the evidence on record clearly fails to establish probable cause”; that “if he finds probable cause, he shall issue a warrant of arrest, or a commitment order”; that “in case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information”.

2.4. Applying Sec.7 of Rule 112 by analogy, “after the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule”.

3. The record of this case would show that the Private Complainants, the PNP Police Station of Las Pinas City, the Office of the City Prosecutor and the Honorable Court have complied with the applicable procedural provisions of the Rules of Court in the matter of the lawful initiation, commencement, and institution of the instant criminal case.

On the contrary, it was the accused, moved by criminal guilt and fear of incarceration, who had ESCAPED to MASBATE immediately after he committed the gruesome crime of MURDER to evade lawful arrest without warrant under Rule 113 and to evade the legal procedures required for a valid preliminary investigation under Rule 112.

The defense has expressly admitted during the past hearings of the instant criminal case that the accused was in fact arrested only recently in his hometown in Masbate after three (3) long years of hiding, a fact which is documented by a relevant operations report filed with the Honorable Court by the arresting officers of the Philippine National Police, as borne out by the record of this case. (The crime was committed in 2005).

4. In the EN BANC consolidated cases of ATTY. EDWARD SERAPIO vs. SANDIGANBAYAN, et. al., G.R. No. 148468, January 28, 2003; EDWARD S. SERAPIO, vs. SANDIGANBAYAN, et. al., G.R. No. 148769, January 28, 2003; and EDWARD S. SERAPIO, vs. SANDIGANBAYAN, et. al., G.R. No. 149116, January 28, 2003, it was held:

X x x.

It bears stressing that the right to a preliminary investigation is not a constitutional right, but is merely a right conferred by statute. The absence of a preliminary investigation does not impair the validity of the Information or otherwise render the same defective and neither does it affect the jurisdiction of the court over the case or constitute a ground for quashing the Information. If the lack of a preliminary investigation does not render the Information invalid nor affect the jurisdiction of the court over the case, with more reason can it be said that the denial of a motion for reinvestigation cannot invalidate the Information or oust the court of its jurisdiction over the case. Neither can it be said that petitioner had been deprived of due process. He was afforded the opportunity to refute the charges against him during the preliminary investigation.

The purpose of a preliminary investigation is merely to determine whether a crime has been committed and whether there is probable cause to believe that the person accused of the crime is probably guilty thereof and should be held for trial. As the Court held in Webb vs. De Leon, “[a] finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspect. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt.”

Absent any showing of arbitrariness on the part of the prosecutor or any other officer authorized to conduct preliminary investigation, courts as a rule must defer to said officer’s finding and determination of probable cause, since the determination of the existence of probable cause is the function of the prosecutor. The Court agrees with the Sandiganbayan that petitioner failed to establish that the preliminary investigation conducted by the Ombudsman was tainted with irregularity or that its findings stated in the joint resolution dated April 4, 2001 are not supported by the facts, and that a reinvestigation was necessary.

X x x.

The ruling in Rolito Go vs. Court of Appeals that an accused shall not be deemed to have waived his right to ask for a preliminary investigation after he had been arraigned over his objection and despite his insistence on the conduct of said investigation prior to trial on the merits does not apply in the instant case because petitioner merely prayed for a reinvestigation on the ground of a newly-discovered evidence. Irrefragably, a preliminary investigation had been conducted by the Ombudsman prior to the filing of the amended Information, and that petitioner had participated therein by filing his counter-affidavit. Furthermore, the Sandiganbayan had already denied his motion for reinvestigation as well as his motion for reconsideration thereon prior to his arraignment. In sum then, the petition is dismissed.

X x x,

5. As to the issued of alleged denial of the right to due process of law, it will be noted that in the recent case of SPOUSES RODELIO and ALICIA POLTAN vs. BPI FAMILY SAVINGS BANK, INC. and JOHN DOE, G.R. No. 164307, March 5, 2007, which applies by analogy, it was held that due process is the “mere opportunity to be heard” and that “what the fundamental law prohibits is total absence of opportunity to be heard”, and that “when a party has been afforded opportunity to present his side, he cannot feign denial of due process”. Thus:

X x x.

The first three issues may be summed up into whether the allowance of the ex-parte presentation of evidence is proper and whether the petitioners were denied due process.

On the issue of validity of presentation of evidence ex-parte, be it noted that upon the remand of the case to the trial court by the Court of Appeals, both BPI and the petitioners were duly notified of the scheduled date of the hearing of the case by the trial court. At the hearing scheduled on 10 January 2000 where the petitioners were absent and where BPI was allowed to present evidence ex–parte, both parties were given notice that the hearing of the case was scheduled on that date. Specifically, the petitioners were notified through

their representative Rizaldy Impi of the scheduled hearing on 10 January 2000. This notwithstanding, the petitioners failed to appear. Lest it be forgotten, the case was previously decided based on judgment on the pleadings and the same was elevated to the Court of Appeals which resolved to remand the case to the trial court for further hearing. After the remand of the case, the same was initially set for hearing on 25 January 1999. This was postponed upon motion of the counsel of the petitioners who moved that the same be reset to 22 February 1999 which the trial court granted. The petitioners were again absent on the latter date and they were notified that the hearing was reset to 19 April 1999. The hearing scheduled on 19 April 1999 was again reset to 17 May 1999 upon their motion. Upon agreement of both parties, the hearing scheduled on 17 May 1999 was reset to 5 July 1999. Similarly, both parties again agreed to reset the scheduled hearing of 5 July 1999 to 23 August 1999. Then again, the 23 August 1999 schedule was reset to 11 October 1999, likewise, upon agreement of both parties.

All these negate the claim of denial of due process. The petitioners were given more than ample opportunity to be heard through counsel. The claim of denial of due process is clearly without basis. What the fundamental law prohibits is total absence of opportunity to be heard. When a party has been afforded opportunity to present his side, he cannot feign denial of due process.

Admittedly, there was a hearing conducted without the presence of the petitioners on 10 January 2000, and BPI was allowed to present evidence ex-parte. X x x.

6. Finally, it will be noted that the accused, assisted by former defense counsel, Atty. Xxx, freely, voluntarily, openly, and intelligently entered a plea during the previous arraignment of the instant case. He did not object thereto. As such, he may be deemed to have fully and freely WAIVED his right to question the alleged lack of preliminary investigation in this case. A statutory right, such as the right to a preliminary investigation, is WAIVABLE, expressly or impliedly. Entering a plea is an EXPRESS WAIVER of such statutory right. This is too basic and elementary a rule that it does not require a long list of supporting citations.

7. The effort of the accused to remand this case to the Office of the City Prosecutor is a continuing attempt to DELAY this 3-year old criminal case, in complete disregard of the pains and sufferings which to this very day the bereaved family of the deceased victim heavily carry in their hearts. It is in the best interest of the State, the Justice System, and the accused himself that this case now undergoes the mandatory and full-blown speedy trial under the Speedy Trial Act of 1998.

WHEREFORE, premises considered, it is respectfully prayed that the motion for reconsideration of the order, dated March 7, 2008, be denied, for lack of merit.

Las Pinas City, April 2, 2008.


Private Prosecutor

Unit 15, Star Arcade, C.V. Starr Ave.

Philamlife Village, Las Pinas City

Tel/Fax 8742539, 8725443


Roll No. 33640, 4/27/85

IBP Lifetime Member No. 1907

IBP PPLM Chapter

MCLE Exemption No. II-000844

PTR No. 9628887, 1/7/08, Las Pinas

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