SUPREME COURT DECISIONS

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^{SEPARATE OPINION}

DAVIDE, JR., C.J.:

I fully concur with the majority that the trial court did not commit grave abuse of discretion in denying the application of the defense for the taking by depositions of the testimony of its witnesses who are residents of the United States of America. Since the trial court had already admitted the exhibits on which the said witnesses would have testified, the taking of the depositions would have been unnecessary.

However, the issue of whether the taking of the depositions of such witnesses may be allowed in criminal cases before the Philippine courts must be squarely resolved.

I take an affirmative stand on the issue. For one, we have Sections 4 and 5 of Rule 119 of the Rules of Court which read:

SEC. 4. Application for examination of witness for accused before trial. -- When the accused has been held to answer for an offense, he may, upon motion with notice to all other parties, have witnesses conditionally examined in his behalf in the manner hereinafter provided, but not otherwise. The motion shall state: (a) the name and residence of the witness; (b) the substance of his testimony; and (c) that the witness is so sick or infirm as to afford reasonable ground for believing that he will not be able to attend the trial, or resides more than 100 kilometers from the place of trial and has no means to attend the same, or that, apart from the foregoing, other similar circumstances exist that would make him unavailable or prevent him from attending the trial. The motion shall be supported by affidavit of the accused and such other evidence as the court may require. (4a)

SEC. 5. Examination of defense witness; how made. -- If the court is satisfied that the examination of witness for the accused is necessary, an order will be made directing that the witness be examined at a specified time and place, and that a copy of the order be served in the fiscal within a given time prior to that fixed for the examination. The examination will be taken before any judge or if not practicable, any member of the Bar in good standing so designated by the judge in the order, or, if the order be granted by a court of superior jurisdiction, before an inferior court to be designated in the order. The examination shall proceed notwithstanding the absence of the fiscal, if it appears that he was duly notified of the hearing. A written record of the testimony shall be taken. (5a)

These Sections refer to the conditional examination of defense witnesses, which is one mode of perpetuating testimony available to the accused (REGALADO F.D., REMEDIAL LAW COMPENDIUM, vol. 2, 1995 ed., 428). This deposition, being to perpetuate testimony, may be done before the commencement of the trial state, or anytime thereafter, as the need therefor arises, but before the promulgation of judgment.

Then, too, there is Section 7 of Rule 24 of the Rules of Court, which reads:

SEC. 7. Depositions pending appeal. -- If an appeal has been taken from a judgment of a court, including the Court of Appeals in proper cases, or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same shall state (a) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each; and (b) the reason for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in the rules for depositions taken pending actions.

This Section, which was formerly Section 7 of Rule 134, applies to criminal cases. (REGALADO F.D., REMEDIAL LAW COMPENDIUM, vol. 1, 1997 ed., 322). According to Justice Regalado the procedure in Section 7 is available in all actions, including criminal cases.

Thus, the ruling in the case of Dasmarinas Garments, Inc. v. Court of Appeals, (225 SCRA 622, 634 [1993]), is applicable in the case at bar, to wit:

xxx. Depositions may be taken at any time after the institution of any action, whenever necessary or convenient. There is no rule that limits deposition-taking only to the period of pre-trial or before it; no prohibition against the taking of deposition after pre-trial. Indeed, the law authorizes the taking of depositions of witnesses before or after an appeal is taken from the judgment of a Regional Trial Court to perpetuate their testimony for use in the event of further proceedings in the said court. (Rule 134, Rules of Court), and even during the process of execution of a final and executory judgment (East Asiatic Co. v. C.I.R., 40 SCRA 521, 5440).

The only corollary issue that has to be addressed is how to take the testimony of a defense witness who is unable to come to testify in open court because he is a resident of a foreign country. The Rule on Criminal Procedure is silent on this. I respectfully submit, however, that the rule on the matter under Rules on Civil Procedure may be applied suppletorily. Section 11 of Rule 23 of the 1997 Rules on Civil Procedure is the appropriate provision. It reads:

SEC. 11. Persons before whom depositions may be taken in foreign countries. -- In a foreign state or country, depositions may be taken (a) on notice before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines; (b) before such person or officer as may be appointed by commission or under rogatory; or (c) the person referred to in Section 14 hereof. (11a, R24)

There are provisions of the Rule on Civil Procedure which have been made applicable in criminal cases. For one, as earlier mentioned, Section 7 of Rule 24 is applicable in criminal cases. See also the instances allowed in Caos v. Peralta, (115 SCRA 843 [1982]); Naguiat v. Intermediate Appellate Court, (164 SCRA 505 [1988]); and Cojuangco v. Court of Appeals, (203 SCRA 619 [1991]).

Also, an authority on criminal procedure asserts that in all matters not specifically touched on by Section 6 and the preceding Sections of Rule 119, Rule 24, Rules of Court, ante, applies in a suppletory character, since the taking of depositions under Rule 24 and conditional examination of defense witnesses under Section 4 and 5, Rule 119, supra, are taken under the same circumstances and for the same purpose; that is, the preservation of a material witness testimony. (PAMARAN, THE 1985 RULES IN CRIMINAL PROCEDURE ANNOTATED, 1998 ed., 402).

Finally, Section 6 of Rule 1 of the 1997 Rule of Civil Procedure (formerly Sec. 2, Rule 1 of the 1964 Rules of Court), expressly provides that the rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding.

A much stronger reason exists why deposition in criminal cases of a witness for the defense who is residing abroad must be allowed . Involved in a criminal case is not just the status or the property of the defendant, but the life or limb or the liberty of the accused. If, then, a deposition is allowed for a witness in a civil case, then it is with more reason that it be allowed in a criminal case; its denial would amount to a deprivation of due process and to the accuseds right to compulsory process to secure the attendance of witnesses in his favor, which are guaranteed by the Bill of Rights (Sections 1 and 14(2), Article III, Constitution).