TO: Atty.

Juan Dela Cruz, Senior Partner, Ulan and

Associates

FROM: Atty. Jon Mayette M. Salacup, Junior Associate

SUBJECT: Sally Donoghey v. St. Catherine’s Hospital, Juan

Towler, Juan Thompson

DATE: November 25, 2016

ISSUE

I. Whether the presentation of a surprise witness is considered as

part of the defense?

II. Whether the photocopy of the original document is considered

as admissible evidence by the defense?

BRIEF ANSWER

I.

Yes. As a general rule, during the pre-trial of proceedings, all

information that are pertinent in the case (issues, witnesses, et.al)

shall be presented in the aforementioned however this is also subject

to exceptions, according to the Section 5, Rule 30 of the Rules of

Court, the parties may adduce rebuttal evidence, unless the court,

for good reasons and in the furtherance of justice, permits them to

adduce evidence upon their original case. It shall be permitted under

the discretion of the trial judge on whether it shall be considered as

pertinent evidence. In the absence of such discretion, the aggrieved

party may still file a petition for certiorari if a grave abuse of discretion

appeared in the part of the judge.

 II.

No. We adhere by the Best Evidence Rule as stated in the Rule 130

of the Rules of Court. It stated that the original evidence is considered

as an admissible evidence. However, as seen in this case wherein

the alleged photocopy of the original is presented, the rule of

Secondary Evidence shall be considered. Under the Section 7 of

Rule130, When the original of document is in the custody of public

officer or is recorded in a public office, its contents may be proved by

a certified copy issued by the public officer in custody thereof. As

applied in this circumstance, it was not a certified true copy, however,

it was the witness herself who have executed such public document

which is considered as a prima facie evidence.

FACTS

The petitioner, Sally, is allegedly a subject of a malpractice under the

negligence of the respondents, Dr. Towler and Dr. Thompson. It was

assailed by the rebuttal witness, that the doctors have prompted her

to alter the original information for them to be exonerated from their

negligent act of not checking the health chart first before

administering the drug which had caused her to be comatosed.

The rebuttal witness had also presented a copy of the original

document from the hospital, it being not an authenticated.

DISCUSSION

With these facts already discussed, it shall be considered as to

how the defense’s evidences will help in the disposition of the case.
Under the discussion of the first issue, the exception to the pre-trial

rule should be deliberated. Citing the case of Lopez v. Liboro,

After the parties have produced their respective direct

proofs, they are allowed to offer rebutting evidence only,

but, it has been held, the court, for good reasons, in the

furtherance of justice, may permit them to offer evidence

upon their original case, and its ruling will not be disturbed

in the appellate court where no abuse of discretion

appears. So, generally, additional evidence is

allowed when it is newly discovered, or where it has

been omitted through inadvertence or mistake, or

where the purpose of the evidence is to correct evidence

previously offered.

It was stated as per the case of in Director of Lands v. Roman

Archbishop of Manila that the relaxation of the rules even at the risk

of violating legal formul, is an opportunity should be given to

parties to submit additional corroborative evidence in support of

their claims of title, if the ends of justice so requires. Hence, the

surprise witness of the defense is valid.

Lastly, as regards the photocopy of the original and on whether it is

an admissible evidence by the defense, we shall first discuss if

whether it is considered as a public document, According to Section

19, Rule 132 of the Rules of Court, Public documents are:

 (a) The written official acts, or records of the official acts of the

sovereign authority, official bodies and tribunals, and public

officers, whether of the Philippines, or of a foreign country;

(b) Documents acknowledge before a notary public except last

wills and testaments; and

(c) Public records, kept in the Philippines, of private documents

required by law to the entered therein.

Public documents are considered as a prima facie evidence and its

proof as an official record cannot be attested by a proof of a

photocopy record. For records or documents to be probative in cases,

it shall be proved by preponderance of evidences. It was discussed in

the case of BPI v. Mendoza, the original copy of the document must

be presented whenever the content of the document is under inquiry,

the rule admits of certain exceptions, such as "[w]hen the original has

been lost or destroyed, or cannot be produced in court, without bad

faith on the part of the offeror." In order to fall under the aforesaid

exception, it is crucial that the offeror proves: (a) the existence or due

execution of the original; (b) the loss and destruction of the original,

or the reason for its non-production in court; and (c) the absence of

bad faith on the part of the offeror to which the unavailability of the

original can be attributed. Hence, as applied in this case, the original

copy only be considered as the authentic document and not the

photocopy.