Document and handwriting examination

I wish to share a pleading I have filed with the Supreme Court on the issues of document and handwriting examination, “finality” of interlocutory orders, and doctrine of liberality in the application of remedial rules, for legal research purposes of my readers. Thus:

1. The grounds relied upon by private respondent xxx are the following:

1.1. The appellate court did not err in ruling that the denial by the trial court of the motion of the accused for document and handwriting examination by the National Bureau of Investigation (NBI) was proper because the accused could unilaterally do the same during the defense evidence presentation stage before the trial court.
1.2. The appellate court did not err in holding that the constitutional rights of the accused were not violated by the denial of his motion for NBI document and handwriting examination.
1.3. The lower courts did not err in finding that the motion of the accused for the reconsideration of the order of the trial court denying the motion for document and handwriting examination was filed out of time.
1.4. The appellate court did not err in holding that procedural rules could not be relaxed in this case because there was no imperative reason to do so.

2. We beg to disagree. There being no new issues raised in the comment of the private respondent, the petitioner would simply reiterate and stress the basic points he had alleged and argued in his petition.

3. On February 12, 2007 the “MOTION FOR DOCUMENT AND HANDWRITING EXAMINATION BY THE NATIONAL BUREAU OF INVESTIGATION” was filed (Annex “C”, Petition).

4. On August 22, 2007, the judicial dispute resolution court (Branch 63) issued an ORDER denying the aforecited motion of the herein petitioner. (Annex “E”, Petition). The undersigned counsel for petitioner received a copy of the aforecited Order on September 7, 2007. His 15th day to file his motion for reconsideration thereon would have expired on September 22, 2007, a Saturday. Hence, his ultimate/final legal deadline to file his motion for reconsideration would have legally expired on September 24, 2007, the next working Monday.

5. The undersigned counsel forthwith prepared a “MOTION FOR RECONSIDERATION (IN RE: ORDER, DATED AUGUST 22, 2007”, dated September 2,1 2007. (Annex “F”, Petition). Because the herein petitioner, as an ordinary employee, wanted to be freed from the duty to pay the law office of the undersigned counsel the fee of P1,000.00 representing the cost of the time of the paralegal staff of the law office of the undersigned counsel in serving copies of the said motion on the adverse parties and in filing the original thereof with the trial court, he volunteered to personally do the said field tasks, knowing fully well that the said amount of P1,000.00 would very well represent and cover the price of one-half sack of rice for the consumption of his wife and children for one (1) month or so. The undersigned counsel briefed the petitioner on how, where and when to serve and file copies of the motion with the proper parties and entities. The petitioner served individual copies of the said motion on the Office of the City Prosecutor and on the Private Prosecutor [xxx Law Offices] on September 24, 2007 (the final legal deadline for the said motion). However, due to an inadvertence and an honest mistake, i.e., thinking that the said service of the copies of the motion on the public and the private prosecutors had officially completed his filed task of filing the motion, he failed to file the original of the motion with the trial court itself on that very same day, September 24, 2007. Please see the last page of the said motion, i.e., the copy furnished page, Annex “F”, Petition, showing the rubber-stamp markings of the separate offices of the public and the private prosecutions evidencing receipt of their individual copies of the said motion.

6. When the petitioner reported on September 26, 2007 to the undersigned counsel on the status of his field task, the latter discovered that, although the petitioner had completed the official process of serving individual copies of the said motion on the offices of the public and the private prosecutions on September 24, 2007, he had failed to file the original of the said motion with the trial court itself on the said final deadline of September 24, 2007. Hence, with due urgency, the undersigned counsel filed the original copy of the said motion with the trial court via REGISTERED MAIL, per Reg. Rec. No. 3644 issued on Septembe4 26, 2007 by the Post Office of Las Pinas City. Please see the first page of the said motion (Annex “F”, Petition) showing the photocopy of the said Registry Receipt No. 3644, dated September 26, 32007, issue by the Post Office of xxx City. Note: The original of the said motion and the aforecited Registry Receipt are on file in the special civil action record in the Court of Appeals.

7. Forthwith, and for the record, the next day on September 27, 2007, the undersigned counsel filed with the trial court a “VERIFIED EX PARTE MANIFESTATION”, reporting to the trial court all of the foregoing facts. (Annex “G”, Petition). The said motion was set for hearing on October 5, 2007, Friday, at 8:30 AM. The aforecited verified ex parte manifestation apologized to the trial court for the two-day delay in the filing via registered mail of the motion for reconsideration by reason of the honest mistake of the herein petitioners, invoking the spirit of liberality of the Rules of Court.

8. On October 14, 2008, the trial court (Branch xxx) issued an ORDER denying the petitioner’s aforementioned motion for reconsideration on the sole ground of unseasonability in the filing thereof. (Annex “H”, Petition).

9. On November 21, 2008, the petitioner seasonably filed with the Court of Appeals a special civil action for certiorari, prohibition and mandamus, docketed as CA GR SP No. xxx, questioning the two (2) aforecited interlocutory orders of the trial court which denied the petitioner’s motion for an NBI document and handwriting examination. (Annex “I”, Petition). The Court of Appeals denied the aforecited Petition. (DECISION, October 26, 2009, Annex “A”, Petition). The petitioner seasonably filed on November 23, 2009 a MOTION FOR RECONSIDERATION (IN RE: DECISION, DATED OCTOBER 26, 2009). (Annex “J”, Petition). The said motion was denied by the CA. (RESOLUTION, dated May 17, 2010, Annex “B”, Petition).

10. It is admitted that the subject MOTION FOR RECONSIDERATION was filed by registered mail on September 26, 2007. The technical deadline was September 22, 2007, a Saturday. The ultimate or final legal deadline was thus September 24, 2007, the following working Monday. If the date September 22, 2007, Monday, would be counted as the reckoning date, the filing of the motion for reconsideration was late by four (4) days. If the date September 24, 2007, Monday, would be counted as the reckoning date, the filing of the said motion was late by two (2) days. The tardiness would range from two (2) to four (4) days.

11. The petitioner’s motion for NBI questioned documents examination alleged the following substantive arguments:

11.1 The record of the preliminary investigation of the Office of the City Prosecutor of Makati City showed that Document Report No. 065-2000, dated 16 June 2000, prepared by the officials of the Crime Laboratory of the National Headquarters of the Philippine National Police at Camp Crame, Quezon City, excluded and failed to examine the questioned and standard signatures of the accused in relation to the questioned and standard documents and signatures of the other signatories of the subject XXX checks, application forms and related documents.
11.2 The PNP Crime Laboratory examiners and officials did not inform, invite, request and/or summon the accused at that time to submit his questioned and standard signatures so that the same could likewise be examined in relation to his questioned and standard documents and signatures examined by the PNP Crime Laboratory. The accused had no knowledge of such an examination.
11.3 The end result was that the PNP Crime Laboratory had made a limited, partial, selective, incomplete, biased and prejudicial examination based only of certain questioned and standard signatures submitted by the concerned officers and staff of the complainant Bank -- to the detriment of the accused.
11.4 The Report excluded an examination of the questioned and standard documents themselves (manager’s checks, application forms, and the like). It limited itself to an examination of the questioned and standard signatures of the concerned Bank officers and staff who had at that time assumed an openly adverse and prejudicial position against the accused.
11.5 The standard and questioned documents and signatures and other related in-house forms, sheets and papers are still in the possession and archives of the complainant Bank. A bank is covered by the law on confidentiality and secrecy. It cannot release its own records for external expert examination unless ordered by the courts. This is exactly the situation here.
11.6 The accused is suspicious of the credibility, neutrality and sincerity of the PNP Crime Laboratory examiners who had submitted the Report because they seemed to have been prevailed upon and influenced by the officers of the Bank to conduct the partial, biased and prejudiced examination without the participation of and notice to the accused, i.e., without giving the accused an opportunity to l submit his own questioned and standard signatures that could have shed true light to the end result of the examination.
11.7 in the interest of justice and fair play, there is a need for the forensic laboratory of the National Bureau of Investigation (NBI) to conduct a new, confirmatory and independent document and handwriting signature examination of the questioned and standard documents and signatures of the concerned officers and staff of the Bank and the xxx Inc., on one hand, and of the accused, on the other, in a manner that is complete, comprehensive, fair, neutral, transparent and credible.

12. We stress that the life, liberty and property of the accused are at stake in these pending consolidated Estafa cases. The huge amounts involved in the checks subject matter of the instant cases carry 20 years of imprisonment. The accused is a family man, a young and law-abiding citizen, and has never been charged of any kind of suit of whatever nature except the instant cases.

13. The relevant records proposed to be examined are the following:

13.1. The standard and questioned manager’s checks and manager check forms, blank and the filled-up application manager’s checks forms, etc.; and
13.2. The questioned and standard signatures of the concerned signatories, officers and staff of the complainant Bank, on one hand, of the accused, on the other, as well as those of the client xxx Inc. signatories (not only the Bank).

14. It must be noted that the accused is not allowed by law to freely and unilaterally initiate an NBI questioned document examination procedure without the intervention and order of the courts. The XXX, which is in possession of the originals of the questioned bank forms and documents will not release the same the NBI and/or to the accused or his counsel for transmittal to the NBI to conduct such questioned document examination without a compulsory judicial process or order, because the Bank would invoke the Bank Secrecy Law and its own internal Manual of Operations which provide for confidentiality rules insofar as its in-house bank transactions are concerned. The same is true with xxx Inc., which is a private corporation/client of the Bank. Further, it will take time to a long process the completion of an NBI document and handwriting examination, from the time of court approval of the litigated motion up to the time of the gathering and consolidation before the clerk of court of all the Bank and xxx Inc. records required to be examined and up to the time of the completion of the NBI examination itself and until the time of the submission by the NBI to the trial court of its complete and final examination report for scrutiny during the trial.

15. Although the accused agrees with the trial court that it has the power to conduct its own evaluation of the questioned signature, it must be noted that the accused is at a disadvantageous and underdog position because the prosecution has the generous benefits of an existing one-sided PNP document examination report, which was completed and issued by the said office, upon the prodding and influence of the Bank, without the full participation of and without prior notice to the accused. It must be balanced, defeated and impeached by an equally powerful and credible expert report coming from an equally competent (neutral and impartial) law enforcement agency, in the interest of truth, fairness, and justice.

16. The accused has the constitutional due-process right to present his own counter-expert witness to counteract the testimonial evidence to be presented by the PNP Crime Laboratory officer when he/she justifies the document examination report of the said office during the main trial stage of this case. Moreover, without surrendering its aforementioned powers, it is judicious and wise for the trial court, which is not a scientific agency with formal training and technical experience in forensic document examination, to be assisted and enlightened by the respective counter expert witnesses of both sides in a crucial controversy, as the instant case, where the life, liberty and property of the accused, who is a law-abiding family man without prior criminal records, are at stake. As provided in Sec. 49, Rule 130 of the Rules of Court, the opinion of an expert witness, as in the instant case, requires “special knowledge, skill, experience or training”. The Courts should avail themselves of such expertise where warranted in the interest of truth and justice.

17. Further, the accused reiterates that the motion of the accused for an order authorizing the National Bureau of Investigation (NBI) DOES NOT AMOUNT TO JUDICIAL INTERVENTION IN AID OF THE DEFENSE. The defense needs such a formal order, for otherwise the NBI would not entertain any request from any party or from the public, even in a pending criminal case, unless there is a formal court order to that effect. The motion is precisely intended for that purpose. The motion aims to achieve and determine absolute truth and real justice in the instant case by compelling the NBI -- whose credibility the accused trusts more than the PNP Crime Laboratory insofar as the instant case is concerned, considering that the old and incomplete handwriting examinations conducted by the PNP Crime Laboratory did not even involve and invite the accused to participate in the process by seeking the submission of his own standard and questioned signatures) -- to submit to the trial court a truly comprehensive and fair examination report on the subject documents and signatures. Further, to repeat, without a formal order, XXX will not surrender or entrust to the accused, his counsel, and/or the NBI examiners the standards and the originals of the documents and signatures involved in the instant case on the excuse that the same are private and confidential corporate and business documents. Thus, there is a need on the part of the accused to implore and invoke the coercive powers of the Judiciary, pursuant to his human rights under the Bill of Rights and Rule 115 (Rights of the Accused).

18. The accused invokes ion his petition the doctrine of liberality in the interpretation and application of harmless and minor procedures in order to promote the rule of law and dispense the spirit of substantive and natural justice, particularly in the case of the accused who is facing multiple estafa charges which carry a maximum of 20 years per charge. (LILIA SANCHEZ vs. COURT OF APPEALS, et. al., EN BANC, G.R. No. 152766. June 20, 2003).

19. The accused invokes the duty of the courts to allow a party to present expert evidence, citing the case of SPOUSES SAMUEL ULEP, etc., et. al. vs. HONORABLE COURT OF APPEALS, et. al., G.R. No. 125254, October 11, 2005 which held that “due to the technicality of the procedure involved in the examination of forged documents, the expertise of questioned document examiners is usually helpful”. The fact of forgery can only be established by a comparison between the alleged forged signature and the authentic and genuine signature of the person whose signature is theorized to have been forged. In the said case, the petitioners’ claim of forgery was unsupported by any substantial evidence other than their own self-serving testimonies. The Court noted that they failed to present handwriting experts and other persons familiar with the handwriting of the spouses Atinedoro Ulep, his wife Beatriz and sister Valentina Ulep that would show that their signatures appearing in the questioned deed of sale in favor of respondent INC were forged. This is precisely the scenario that the herein petition wishes to prevent, in the interest of fair play. In the aforecited case, the Court noted that Capistrano did not bother to present corroborating witnesses much less an independent expert witness who could declare with authority and objectivity that the challenged signatures are forged. The plaintiff did not even present a sample of his authentic signature to support his contention that it was not his signature appearing in the questioned document. The Court stressed that the petitioner did not call a handwriting expert to prove his assertion. The Court emphasized that he who disavows the authenticity of his signature on a public document bears the responsibility to present evidence to that effect. Mere disclaimer is not sufficient. At the very least, he should present corroborating witnesses to prove his assertion. At best, he should present an expert witness. THE FOREGOING DOCTRINE IS THE PRECISELY BASIS OF THE DESIRE OF THE HEREIN PETITONER FOR AN NBI DOCUMENT AND HANDWRITING EXAMINATION.

20. A MINOR DELAY OF TWO OR FOUR DAYS SHOULD BE FORGIVEN AND MUST NOT BE TAKEN AGAINST THE HEREIN PETITIONER IN LIGHT OF THE PREVAILING DOCTRINE OF LIBERALITY IN CRIMINAL LAW AND IN THE FACE OF THE CONSTITUTIONAL PRESUMTION OF INNOCENCE OF THE ACCUSED. In the case of JANG LIM, et. al. vs. COURT OF APPEALS, et. al., GR No. 149748, November 16, 2006, it was held that the reason for the 3-day delay in the filing of the appeal with the NLRC was justifiable, having been caused by "inadvertence amounting to excusable negligence." In the said case, the Court stressed that when proper, no serious impediment bars the allowance of tardy appeals under the Rules of Court, in recognition of this Court's inherent power to suspend adjective rules. It is a different matter, however, when the period to appeal is provided by statute, as in labor cases. For obvious reasons, this Court cannot ordinarily suspend the statute's operation. Nevertheless, if only to be able to dispense substantial justice, strict observance of the period to appeal may not be exacted, the Court added. (See also: SOUTHTECH DEVELOPMENT CORP. and/or REMCOR and RICARDO LU vs. NATIONAL LABOR RELATIONS COMMISSION, G.R. No. 149590, January 12, 2005; and TRANS INTERNATIONAL vs. COURT OF APPEALS, et. al., G.R. No. 128421, January 26, 1998). The rules of procedure are not to be applied in a very rigid and technical sense. The rules of procedure are used only to help secure, not override substantial justice (citing Gregorio vs. Court of Appeals, 72 SCRA 120). The Court recalled the case of Republic vs. Court of Appeals, 83 SCRA 453, where it held that that “a six-day delay in the perfection of appeal does not warrant a dismissal”. It cited Ramos vs. Bagasao, 96 SCRA 395, the Court held “that the delay of four (4) days in filing the notice of appeal and a motion for extension of time to file a record on appeal can be excused on the basis of equity.”

21. Finally, as to the issue of “finality” of interlocutory orders, it will be noted that In the case of LEY CONSTRUCTION AND DEVELOPMENT CORPORATION, et. al. vs. UNION BANK OF THE PHILIPPINES, G.R. No. 133801, June 27, 2000, the Supreme Court held that “an interlocutory order is always under the control of the court and may be modified or rescinded upon sufficient grounds shown at any time before final judgment”. Further, in the case of PEOPLE OF THE PHILIPPINES, vs. METROPOLITAN TRIAL COURT OF QUEZON CITY, Branch 32, and ISAH V. RED, G.R. No. 123263, December 16, 1996, the Supreme Court held that “only final orders -- i.e., those that finally dispose of a case, leaving nothing more to be done by the court respecting the merits of a case -- can become final and executory -- in the sense of becoming unalterable through an appeal or review proceeding.” The Court stressed that “interlocutory orders, on the other hand -- i.e., those which resolve incidental motions or collateral matters but do not put an end to the case -- never become final in the sense of becoming unchangeable and impervious to impugnation after expiration of the period prescribed for taking an appeal from a final judgment.”

WHEREFORE, premises considered, it is respectfully prayed that the questioned Decision of the Court of Appeals, dated October 26, 2009, and its questioned Resolution, dated May 17, 2010, be VACATED and SET ASIDE and a new one issue ALLOWING the conduct of an NBI document and handwriting examination of all the relevant and material documents in re: the underlying criminal cases in the trial court a quo, subject to such terms and conditions and/or guidelines as this Honorable Court and/or the trial court may prescribe; AND, further, SUSPENDING the defense evidence presentation staged pending final completion and submission by the NBI of its final document and handwriting examination report to the trial court.
Further, the petitioner humbly prays for such and other reliefs and remedies as may be deemed just and equitable in the premises.
Las Pinas City, November 30, 2010.

LASERNA CUEVA-MERCADER
LAW OFFICES
Counsel for the Petitioner/Accused
Unit 15, Star Arcade, C.V. Starr Ave.
Philamlife Village, Las Pinas City 1740
Tel/Fax 8462539, 8725443.



MANUEL J. LASERNA JR.
Roll No. 33640, April 27, 1985
IBP Lifetime Member No. 1907
IBP PPLM Chapter
MCLE Compliance No. III-2280, 2.16/09
PTR No. 9957969, 1/4/10, Las Pinas


Cc:

Office of the Solicitor General
134 Amorsolo St.
Legaspi Village, Makati City

Court of Appeals
Ma. Orosa St., Ermita
Manila

Regional Trial Court
Xxx City

Xxx LAW OFFICES
Counsel for XXX
Xxx City

Office of the City Prosecutor
City Hall
Xxx City

EXPLANATION

Copies of this petition were served on the adverse parties and the lower courts via registered mail instead of via personal service due to the lack of field staff of the undersigned counsel at this time and due to the urgency of filing the same.


Manuel J. Laserna Jr.