S'bayan's 'prima facie' ruling anomalous

S'bayan's 'prima facie' 
ruling anomalous 


Is there such a thing as "prima facie" evidence for a criminal case when the corresponding criminal information is not even sure of how the crime was committed?

This is actually a beautiful topic for legal minds.

Recently, the Sandiganbayan approved the admission of 118 amended informations against persons involved in the so-called "vehicle repair scandal" that rocked the Department of Public Works and Highways (DPWH) more than ten (10) years ago.

By the way, 13 of these 118 amended informations were filed against my client.

In brief, the amended informations charged that my client committed the crime of violation of Section 3(e) of Republic Act No. 3019, which is an act of giving unwarranted benefits or an act of causing undue prejudice to a party.   There three modes by which this crime can be committed: (1) by "evident bad faith"; (2) by "manifest partiality"; and (3) by "gross inexcusable negligence."

In the original 118 informations, the Office of the Ombudsman charged that all the accused, including my client, committed the crime by means of either of the two modes: (a) "evident bad faith"; or (b) "manifest partiality."

Not contented, the Ombudsman changed its mind. It now filed 118 amended informations by claiming that all the accused committed the crime by either of the three modalities: (a) "evident bad faith"; (b) "manifest partiality"; and (c) "gross inexcusable negligence."

This means that the Ombudsman is in big doubt as to how the crime was committed.  

I argued that if the Ombudsman is in doubt, it means there is no "probable cause" or "prima facie" evidence to say that the accused committed the crime by means of "evident bad faith."   Similarly, it means that there is no "probable cause" or "prima facie" evidence to say that the accused committed the crime by means of "manifest partiality".   This also means that there is no "probable cause" or "prima facie" evidence to say that the accused committed the crime by means of "gross inexcusable negligence."

In criminal law, if one of the elements of a crime cannot be proved, then there is no crime and the accused must be acquitted.

Additionally, there must only be one mode that a crime can be committed. If at this point the Ombudsman cannot even be sure as to how the accused committed a crime, how can we say that there is "probable cause" or "prima facie" evidence that the accused committed the crime or not?

The Rules of Court and the Constitution allows holding an accused for trial only when there is "probable cause" or "prima facie" evidence that the accused most likely committed the crime

To understand my point, "probable cause" is defined as a "well-founded belief" of a reasonable mind that the accused committed the crime based on facts and circumstances established by personal knowledge of witnesses and authentic documents.

"Prima facie" evidence means that degree of evidence that is sufficient to prove a proposed fact without counter-evidence.

So that this is the meat of the argument in the Motion for Reconsideration I filed before the Sandiganbayan, seeking for it to declare the dismissal of the 13 informations filed against my client.

If you want to read the detailed arguments I wrote, below is the Motion for Reconsideration, to wit:


Republic of the Philippines
Sandiganbayan
Quezon City


PEOPLE OF THE PHILIPPINES,
                                                            Plaintiff,



            - versus -                   Criminal Case Nos. SB-13-CRM-0323-0558



FLORENCIO ARIAS y BUNAG,
JESUS SJ CRUZ, ET AL
                                                            Accused.
x---------------------------------------------------x



Motion for Reconsideration

          

Accused Jesus SJ Cruz, by the undersigned counsel, respectfully moves the Honorable Court to RECONSIDER its Resolution dated February 27, 2015.



The Timeliness



On 26 March 2015 the undersigned counsel received the same Resolution.   The fifteenth (15th) day to file a motion for reconsideration falls on 10 April 2015.


Thus, the filing of this Motion for Reconsideration today, 10 April 2015 is timely.



The Grounds




With due respect, the Honorable Court erred in the following:


(1)  In making a statement that there are One Hundred Eighteen (118) Informations that filed against accused Jesus SJ Cruz when the truth is there are only THIRTEEN (13) Informations or the same number of Amended Informations filed against him;


(2)  In stating that there is prima facie evidence that accused Jesus SJ Cruz committed the crimes as charged by the Ombudsman and that he must be held for trial;


(3)  In ruling there was no violation of the right of accused Jesus SJ Cruz despite the oppressive delay caused by the prosecution in determining whether informations shall be filed against him or not; and


(4)  In ruling that the 13 (not 118) informations filed against accused Jesus SJ Cruz did not constitute delito continuado.




The Discussions



On 13 Informations



            It is unfortunate that the Honorable Court mentioned that 118 informations were filed against accused Jesus SJ Cruz.


            The truth is ONLY 13 INFORMATIONS, on record, are filed against accused Jesus SJ Cruz, amended or otherwise.


            In the third paragraph, on Page 15, the Resolution stated:


              In this case, accused Cruz is charged with one hundred eighteen (118) counts of violation of Section 3(e) of R.A. No. 3019.   The three (3) essential elements for violation of Section 3(e) of R.A. No. 3019 are as follows: (1) that the accused is a public officer discharging administrative, judicial or official functions; (2) that the accused acted with manifest partiality, evident bad faith or gross inexcusable negligence; and (3) that the accused caused undue injury to any party including the Government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his function.


It is therefore requested of the Honorable Court to make a definitive statement that only thirteen (13) informations or amended informations have been filed against accused Jesus SJ Cruz.



On lack of probable cause



It is unfortunate also that the Honorable Court made a lazy job of just making a conclusion that the Office of the Ombudsman did not err in filing thirteen (13) informations, original or amended, against accused Jesus SJ Cruz.


If only the Honorable Court studied and analyzed the evidence presented by the Ombudsman and the points and arguments raised by accused Jesus SJ Cruz, it will find out that the Office of the Ombudsman committed grave abuse of discretion in finding that there is prima facie evidence that accused Jesus SJ Cruz is guilty of committing thirteen (13) violations of Section 3(e) of Republic Act 3019.


The first hint of grave abuse of discretion is the fact that the Office of the Ombudsman even filed a motion for admission of 118 Amended Informations where the amendment is constituted by adding a phrase “and/or gross inexcusable negligence.”


This amendment refers to a mode or manner by which the crime of violation of Section 3(e) of RA 3019 was committed.


There are three modalities by which this crime may be committed and these are:


1.         Through evident bad faith;
2.         Through manifest partiality; and
3.         Through gross inexcusable negligence.


The first two modes are characterized by intention or malice to commit the crime.  The third mode is characterized by lack of intention or malice to commit the crime.


Now, the implication of the act of the Office of the Ombudsman in seeking to amend the criminal informations by adding one more mode after reciting the first two modes is that the Office is NOT SURE how the crime was committed.


If the Office is NOT SURE, this is no other than A PROOF OF LACK OF PRIMA FACIE EVIDENCE OF COMMITTING THE CRIME.


Actually, in the 13 original informations filed against Jesus SJ Cruz, the Office of the Ombudsman recited the charge by saying that accused Jesus SJ Cruz committed thirteen (13) crimes of violation of Section 3(e) of Republic Act 3019 in EITHER of the two manners: (a) by evident bad faith; and (b) manifest partiality.


Ergo, the 13 original informations on their faces alone show LACK OF PRIMA FACIE EVIDENCE that accused Jesus SJ Cruz committed the said crimes.


Now, if the Office filed the amended informations that now recited another means of committing the crime as “and/or gross inexcusable negligence,” all the more that the lack of prima facie evidence is exposed.


To analyze this, let it be defined clearly what is prima facie evidence.


Prima facie evidence means a state of evidence that is sufficient to conclude a proposed fact when not contradicted.


 By stating that accused Jesus SJ Cruz committed the crime either by evident bad faith, or by manifest partiality, or by gross inexcusable negligence, there is no other conclusion but that the Office of the Ombudsman DID NOT KNOW HOW THE CRIME WAS COMMITTED.


Of course, assuming that Jesus SJ Cruz were guilty, THERE MUST ONLY BE ONE MODE THAT HE USED IN COMMISSING EACH OF THE CRIMES.


If accused Jesus SJ Cruz committed one crime of violation of Section 3(e) by signing on one Waste Material Report (WMR), THERE WAS ONLY ONE MODE THAT HE DID IT. 


And if there was only one mode and if turned out that he committed the same by “evident bad faith,” it must only by “evident bad faith,” nothing else.   If he committed it by “manifest partiality,” it must only be by “manifest partiality” and nothing else.   If he committed the same by “gross inexcusable negligence,” it must only by “gross inexcusable negligence” and nothing else.


Stressing, accused Jesus SJ Cruz can only be convicted by any one of the three modes and by not the three modes.  This is because all the three (3) modes CANNOT CO-EXIST AT ANY ONE TIME.


Again, it means that the Office of the Ombudsman was not even sure how the crime was committed if they charged in the amended information that accused Jesus SJ Cruz committed the crime of Section 3(e) violation either by “evident bad faith” or “manifest partiality” or “gross inexcusable negligence.”


And if the Office of the Ombudsman cannot even be sure which way, then it is no less than LACK OF PRIMA FACIE EVIDENCE THAT EITHER OF THE THREE (3) MODES EXISTED.


Additionally, this also means a VIOLATION OF THE CONSTITUTIONAL DUE PROCESS and the CONSTITUTIONAL RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION AGAINST THE ACCUSED.


How could accused Jesus SJ Cruz be notified of the accusation against him if he is being charged of committing the crime in either of the three modes?  


How could the State comply with the Constitutional command that the accused must be informed of the nature and cause of accusation against him if he is asked to explain why he should not be convicted of the crime on either of the three modes?


With this state of affairs, accused Jesus SJ Cruz can never ever will know how to defend himself in this case.  Will he defend by presenting evidence that he did not do the crime by means of “evident bad faith”?  Will he defend by presenting evidence that he did not do the crime by means of “manifest partiality”?  Will he defend by presenting evidence that he did not do the crime by means of “gross inexcusable negligence”?


Again, there must only be one mode that the crime was committed.


It will then be absurd to rule that there was prima facie evidence that accused Jesus SJ Cruz committed the crime of violation of Section 3(e) when the Office is not sure, and if not sure there is no prima facie evidence, what mode he used in committing the crime?


MOREOVER, the same thirteen (13) informations, original or amended, constitute as a GENERAL CHARGE or a GENERAL WARRANT or a SCATTER-SHOT CHARGE or SHOTGUN CHARGE.


This in turn will violate the Constitutional Due Process Right and the Right to be Informed of the Nature and Cause of Accusation Against Him.


MOREOVER, what the accused understands is always the accusation in facts and circumstances and not the statement of conclusions of law in a criminal statute.


For sure, accused Jesus SJ Cruz does not understand what “evident bad faith” means, or what “manifest partiality” means, or what “gross inexcusable negligence” means.


What the Office of the Ombudsman did was just accusing accused Jesus SJ Cruz of committing acts of “evident bad faith” or “manifest partiality” or “gross inexcusable negligence.”


As to what acts constituted “evident bad faith” or “manifest partiality” or “gross inexcusable negligence”, accused Jesus SJ Cruz does not understand.   But if only the Office recited the charge by stating the acts done and not the conclusions of law, then it can be said there is prima facie evidence that the accused committed the crime as charged.


The failure of the Office of the Ombudsman in reciting the specific acts committed by accused Jesus SJ Cruz means no other but LACK OF PRIMA FACIE EVIDENCE.


After showing that the 13 informations, original or amended, failed to show prima facie evidence, it is now very clear that the Office of the Ombudsman committed grave abuse of discretion in filing the same informations against accused Jesus SJ Cruz and these cases MUST BE DISMISSED.


It is no longer an issue of whether the Office of the Ombudsman has a right to file these 13 informations.  It is an issue of whether the Office of the Ombudsman committed grave abuse of discretion.


In fact, the Supreme Court directed the Office of the Ombudsman to elevate all the records of the case in the administrative aspects of these cases in GR No. 214162, “Jesus SJ Cruz vs Field Investigation Office” in an apparent agreement of the High Court in the arguments of accused Jesus SJ Cruz that there is no substantial evidence that Jesus SJ Cruz can be convicted administratively because there was no specification of acts that could have made the accused guilty.


A copy of the Order of the Supreme Court on this score is attached hereto as ANNEX “A” and ANNEX “A-1”.


If the Supreme Court expressed doubts to the finding of the Ombudsman, with more reason that the Sandiganbayan must also take a second and hard look at the representations of the Office of the Ombudsman.


What the Office has done is analogous to charging a person with murder by either shooting the victim with a gun, or by poisoning the victim or by stabbing the victim.  It is absurd to allow criminal cases with informations stating the manner of commission in the alternative.



Violation of Speedy Trial Act



            It is absurd to rely on the alleged voluminous records of the case to forgive the Office of the Ombudsman of the very long delay that this case has taken.


This criminal case was filed on 14 March 2008.


            Jesus SJ Cruz filed immediately his counter-affidavit.


            On 26 May 2011, the Ombudsman issued a Resolution finding probable cause against Jesus SJ Cruz.


            Immediately, Jesus SJ Cruz filed his motion for reconsideration.


            On December 2, 2013, the Office of the Ombudsman, the team that resolved the motion for reconsideration forwarded to Ombudsman Conchita C. Carpio-Morales their recommendation denying the motion for reconsideration.


            On 2 July 2014 the Honorable Ombudsman approved the resolution denying the motion for reconsideration.


            On 18 July 2014, the Ombudsman filed Motion to Admit Amended Informations.


            Without any intervention from Jesus SJ Cruz, the period that lapsed for the Ombudsman to be able to file their correct informations lapsed for MORE THAN SIX (6) YEARS.


            Now, there is no issue that the Office of the Ombudsman decided speedily enough the administrative aspect of the cases that have the same facts.


            The Ombudsman convicted accused as guilty of grave misconduct much, much earlier.  In fact, the appeal of the accused in this administrative case is now with the Supreme Court after passing through the Court of Appeals.


            If they decided the administrative aspect with speed when the same records are as voluminous as the criminal aspect and both have the same facts, there is no reason that the Office of the Ombudsman can sit idly by for years before its personnel can say there is probable cause that accused Jesus SJ Cruz is guilty of 13 counts of violation of Section 3(e).


            There is no doubt that the delays were oppressive, vexatious, capricious and inordinate. 


These unbearable delays that the accused have been suffering without salaries because his cases are not resolved must be taxed against the State and not against Jesus SJ Cruz who could not do anything except to submit to the will of the powerful Ombudsman.


            In Tatad vs Sandiganbayan, GR No. 72335-39, March 21, 1998, the Supreme Court stated:


            Moreover, the long delay in resolving the case under preliminary investigation can not be justified on the basis of the facts on record. The law (P.D. No. 911) prescribes a ten-day period for the prosecutor to resolve a case under preliminary investigation by him from its termination. While we agree with the respondent court that this period fixed by law is merely "directory," yet, on the other hand, it can not be disregarded or ignored completely, with absolute impunity. It certainly can not be assumed that the law has included a provision that is deliberately intended to become meaningless and to be treated as a dead letter.

We find the long delay in the termination of the preliminary investigation by the Tanodbayan in the instant case to be violative of the constitutional right of the accused to due process. Substantial adherence to the requirements of the law governing the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the due process clause, but under the constitutional guarantee of "speedy disposition" of cases as embodied in Section 16 of the Bill of Rights (both in the 1973 and the 1987 Constitutions), the inordinate delay is violative of the petitioner's constitutional rights. A delay of close to three (3) years can not be deemed reasonable or justifiable in the light of the circumstance obtaining in the case at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the long delay by indulging in the speculative assumption that "the delay may be due to a painstaking and gruelling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high ranking government official." In the first place, such a statement suggests a double standard of treatment, which must be emphatically rejected. Secondly, three out of the five charges against the petitioner were for his alleged failure to file his sworn statement of assets and liabilities required by Republic Act No. 3019, which certainly did not involve complicated legal and factual issues necessitating such "painstaking and gruelling scrutiny" as would justify a delay of almost three years in terminating the preliminary investigation. The other two charges relating to alleged bribery and alleged giving of unwarranted benefits to a relative, while presenting more substantial legal and factual issues, certainly do not warrant or justify the period of three years, which it took the Tanodbayan to resolve the case.

It has been suggested that the long delay in terminating the preliminary investigation should not be deemed fatal, for even the complete absence of a preliminary investigation does not warrant dismissal of the information. True-but the absence of a preliminary investigation can be corrected by giving the accused such investigation. But an undue delay in the conduct of a preliminary investigation can not be corrected, for until now, man has not yet invented a device for setting back time.

After a careful review of the facts and circumstances of this case, we are constrained to hold that the inordinate delay in terminating the preliminary investigation and filing the information in the instant case is violative of the constitutionally guaranteed right of the petitioner to due process and to a speedy disposition of the cases against him. Accordingly, the informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503 should be dismissed. In view of the foregoing, we find it unnecessary to rule on the other issues raised by petitioner.
           

            In this case, compared to the administrative cases where the Office of the Ombudsman convicted accused Jesus SJ Cruz swiftly, the delay is clearly capricious, oppressive, vexatious and inordinate like punishing Jesus SJ Cruz with anxieties of a Sword of Damocles hanging over his head for six (6) years.


            It is clear, therefore, that these 13 Amended Informations must be quashed or dismissed upon the ground of violation of the Constitutional right of the accused to speedy trial.



One Criminal Resolution Theory



            Again, accused Jesus SJ Cruz is very sad that the Office of the Ombudsman is doing its work upon its pleasure.


Because it is pleasurable for the Office of the Ombudsman to file one case for each WMR, and they did it by shortcut by making erroneous conclusion that there was conspiracy anyway and by stating another erroneous ruling that all the transactions are ghost, the Office took the comfort of concluding that accused Jesus SJ Cruz was guilty of Section 3(e) violation in each of the WMR.


It is impossible to say that accused Jesus SJ Cruz conspired with all other accused when he is charged in only 13 informations while the rest were charged in some of the 118 informations.


If we were to agree with the conspiracy theory and the statement that all 118 transactions are ghost repairs, then this must be under the theory of delito continuado, nothing less.


            And because all the “crimes” were committed under one conspiracy as claimed by the Ombudsman, then THERE MUST BE ONLY ONE CRIME for all the 118 or 235 transactions because it was a continuing act of committing series of falsification acts!


            What further bolsters the argument that all these acts are but one continuing act, or delito continuado, is the fact that even the Ombudsman has been harping about the repetition of repair transactions done in quick succession.   For instance, one vehicle should have been repaired at once but that the job orders were split into several job orders to circumvent the ₱25,000 limit.   Therefore, there is without doubt that all these acts are but one crime, assuming it is for the sake of argument.


            With this, it is very clear that all the Amended Informations, not only those against Jesus SJ Cruz, must be quashed at once.


            The case of Miriam Defensor Santiago vs Garchitorena, GR No. 109266, December 2, 1993, proclaims:
           

Be that as it may, our attention was attracted by the allegation in the petition that the public prosecutors filed 32 Amended Informations against petitioner, after manifesting to the Sandiganbayan that they would only file one amended information (Rollo, pp. 6-61). We also noted that petitioner questioned in her opposition to the motion to admit the 32 Amended Informations, the splitting of the original information (Rollo, pp. 127-129). In the furtherance of justice, we therefore proceed to inquire deeper into the validity of said plant, which petitioner failed to pursue with vigor in her petition.

We find that, technically, there was only one crime that was committed in petitioner's case, and hence, there should only be one information to be file against her.

The 32 Amended Informations charge what is known as delito continuado or "continued crime" and sometimes referred to as "continuous crime."

In fairness to the Ombudsman's Office of the Special Prosecutor, it should be borne in mind that the concept of delito continuado has been a vexing problem in Criminal Law — difficult as it is to define and more difficult to apply.

According to Cuello Calon, for delito continuado to exist there should be a plurality of acts performed during a period of time; unity of penal provision violated; and unity of criminal intent or purpose, which means that two or more violations of the same penal provisions are united in one and same instant or resolution leading to the perpetration of the same criminal purpose or aim
(II Derecho Penal, p. 520; I Aquino, Revised Penal Code, 630, 1987 ed.).

According to Guevarra, in appearance, a delito continuado consists of several crimes but in reality there is only one crime in the mind of the perpetrator (Commentaries on the Revised Penal Code, 1957 ed., p. 102; Penal Science and Philippine Criminal Law, p. 152).

Padilla views such offense as consisting of a series of acts arising from one criminal intent or resolution (Criminal Law, 1988 ed. pp. 53-54).

Applying the concept of delito continuado, we treated as constituting only one offense the following cases:

(1)         The theft of 13 cows belonging to two different owners committed by the accused at the same time and at the same period of time (People v. Tumlos, 67 Phil. 320 [1939]).

(2)         The theft of six roosters belonging to two different owners from the same coop and at the same period of time (People v. Jaranillo, 55 SCRA 563 [1974]).

(3)         The theft of two roosters in the same place and on the same occasion (People v. De Leon, 49 Phil. 437 [1926]).

(4)         The illegal charging of fees for services rendered by a lawyer every time he collects veteran's benefits on behalf of a client, who agreed that the attorney's fees shall be paid out of said benefits (People v. Sabbun, 10 SCRA 156 [1964]). The collection of the legal fees were impelled by the same motive, that of collecting fees for services rendered, and all acts of collection were made under the same criminal impulse (People v. Lawas, 97 Phil. 975 [1955]).


             Ergo, the instant Amended Informations must be quashed or the instant cases must be DISMISSED!



The Prayer



            WHEREFORE, it is respectfully prayed of the Honorable Court that the motion for reconsideration be GRANTED.


            Other reliefs just and equitable are also prayed for.  10 April 2015, Manila.


Causing Sabarre Castro pELAGIO
Unit 1, No. 2368 J.B. Roxas Street corner Leon Guinto Street, Malate, Manila
Emails: totocausing@yahoo.com, berteni.causing@gmail.com; Tel/Fax No.: +632-3105521

By:


BERTENI CATALUÑA CAUSING
IBP No. 949537 / Manila IV / 06-01-2015
PTR No. 3834103 / Manila / 06-01-2015
Roll No. 60944 / MCLE No. IV -0007338 / 08-10-2012



Cc:

OFFICE OF THE OMBUDSMAN
OFFICE OF THE SPECIAL PROSECUTOR
Sandiganbayan Bldg., Commonwealth Road
Quezon City


NOTICE OF HEARING


THE CLERK OF COURT
Third Division, Sandiganbayan
Sandiganbayan Bldg.,
Commonwealth Road, Quezon City


OFFICE OF THE OMBUDSMAN/
OFFICE OF THE SPECIAL PROSECUTOR
Sandiganbayan Bldg., Commonwealth Road
Quezon City

Please be notified that the undersigned sets the foregoing motion for the consideration by the Court on 20 April 2015 at 3:30 p.m., considering that the undersigned has a prior commitment to attend an earlier hearing.


BERTENI CATALUÑA CAUSING

EXPLANATION

Lack of time and personnel compelled the filing and service by registered mails.


BERTENI CATALUÑA CAUSING

  



ANNEX “A”








ANNEX “A-1”





Post a Comment

Popular Posts