Probable cause in issuing Warrants of Arrest

In a rape case, private complainant failed to appear 4 consecutive orders to take the witness stand in order to satisfy the judge for the existence of probable cause for the issuance of a warrant of arrest.

Judge Carbonell dismissed Criminal Case No. 6983 for lack of probable cause on the ground that the complainant and her witnesses failed to take the witness stand. He claims that under Section 2, Article III of the 1987 Constitution, no warrant of arrest shall issue except upon probable cause “to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.”

Is Judge Carbonell correct?


SUGGESTED ANSWER:


No. Judge Carbonell committed grave abuse of discretion. The Supreme Court explained that this constitutional provision does not mandatorily require the judge to personally examine the complainant and her witnesses. Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor or he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses.

“We reiterated the above ruling in the case of Webb v. De Leon, where we held that before issuing warrants of arrest, judges merely determine the probability, not the certainty, of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence.”

fellester.blogspot.com It is well to remember that there is a distinction between the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest and the preliminary investigation proper which ascertains whether the offender should be held for trial or be released. The determination of probable cause for purposes of issuing the warrant of arrest is made by the judge. The preliminary investigation proper – whether or not there is reasonable ground to believe that the accused is guilty of the offense charged – is the function of the investigating prosecutor.

True, there are cases where the circumstances may call for the judge’s personal examination of the complainant and his witnesses. But it must be emphasized that such personal examination is not mandatory and indispensable in the determination of probable cause for the issuance of a warrant of arrest. The necessity arises only when there is an utter failure of the evidence to show the existence of probable cause. Otherwise, the judge may rely on the report of the investigating prosecutor, provided that he likewise evaluates the documentary evidence in support thereof.

Indeed, what the law requires as personal determination on the part of the judge is that he should not rely solely on the report of the investigating prosecutor. In Okabe v. Gutierrez, we stressed that the judge should consider not only the report of the investigating prosecutor but also the affidavit and the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information. If the report, taken together with the supporting evidence, is sufficient to sustain a finding of probable cause, it is not compulsory that a personal examination of the complainant and his witnesses be conducted. (AAA vs. Carbonell, G.R. No. 171465, June 8, 2007)

Conspiracy and the Anti-VAWC law

Sharica filed a Petition with Prayer for the Issuance of a Temporary Protective Order (TPO) against her husband Steven and her parents-in-law, spouses Pecto Yan and Ramona Yan before the RTC. She alleged that Steven, in conspiracy with her parents-in-law, were causing verbal, psychological and economic abuses upon her in violation of Section 5, paragraphs (e)(2)(3)(4), (h)(5), and (i) of Republic Act (R.A.) No. 9262, otherwise known as the “Anti-Violence Against Women and Their Children Act of 2004.”

However, the RTC dismissed the case on the ground that, being the parents-in-law of the petitioner, they were not included/covered as respondents under R.A. No. 9262 under the well-known rule of law “expressio unius est exclusio alterius.”
Are parents-in-law covered by R.A. No. 9262?


SUGGESTED ANSWER:

Yes. The SC ruled that “while RA 9262 provides that the offender be related or connected to the victim by marriage, former marriage, or a sexual or dating relationship, it does not preclude the application of the principle of conspiracy under the RPC.

Hence, legal principles developed from the Penal Code may be applied in a supplementary capacity to crimes punished under special laws, such as R.A. No. 9262, in which the special law is silent on a particular matter.

“The principle of conspiracy under Article 8 of the RPC may be applied suppletorily to R.A. No. 9262 because of the express provision of Section 47 that the RPC shall be supplementary to said law. Thus, general provisions of the RPC, which by their nature, are necessarily applicable, may be applied suppletorily.”

"Thus, the principle of conspiracy may be applied to R.A. No. 9262. For once conspiracy or action in concert to achieve a criminal design is shown, fellester.blogspot.com the act of one is the act of all the conspirators, and the precise extent or modality of participation of each of them becomes secondary, since all the conspirators are principals."

It bears mention that the intent of the statute is the law and that this intent must be effectuated by the courts. In the present case, the express language of R.A. No. 9262 reflects the intent of the legislature for liberal construction as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit - the protection and safety of victims of violence against women and children.

Thus, contrary to the RTC's pronouncement, the maxim "expressio unios est exclusio alterius” finds no application here. It must be remembered that this maxim is only an “ancillary rule of statutory construction.” It is not of universal application. Neither is it conclusive. It should be applied only as a means of discovering legislative intent which is not otherwise manifest and should not be permitted to defeat the plainly indicated purpose of the legislature. (Tan vs. Tan, G.R. No. 168852, September 30, 2008)