opposition to motion for reinvestigation (autosaved)

8/12/2019 Opposition to Motion for Reinvestigation (Autosaved)

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PEOPLE OF THE PHILIPPINES,

- Versus - CRIM. CASE NO. XXXXX XX

EMMANUEL C. MULAWAN,

Accused,

x-------------------------------x

OPPOSITION

(To: Motion for Reconsideration;

Re: Order, Dated July xx, 20xx)

THE PRIVATE PROSECUTION respectfully states:

1. The accused, by counsel, in seeking the reconsideration of the subject Order, dated

September xx, 20xx, 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


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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 thefiling 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 Cubao,

Quezon 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.

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


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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 officers finding and determinationof 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 beenconducted 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.


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X x x,

5. Accused on his contention that the instant case is intended to harass him for

exposing the criminal acts committed by high ranking government officials, and that the

criminal action was instituted by the prosecutions with malice and with knowledge that

the charges are false and groundless, is bereave of merit. His contention is highlyirrelevant and without connection to the present information which is a filed against him,

the latter being the crime of Rape as penalized under Article 266A, par. 1 in relation

to Art. 266B, par. 10 of the Revised Penal Code, as amended by R.A. 8253.

6. The effort of the accused to remand this case to the Office of the City Prosecutor is

an attempt to DELAY this criminal case, in complete disregard of the pains and

sufferings which to this very day the victim and her bereaved family 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 July xx, 20xx, be denied, for lack of merit.

Dasmarinas, Cavite July xx, 20xx.

opposition to motion for reinvestigation (autosaved)

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