BACOLOD CITY – The alleged kidnapping case filed against an Australian national and a babysitter last month was dismissed for lack of probable cause by the City Prosecutor Office in Dumaguete City, Negros Oriental.
This was stated in a resolution dated July 30, signed by City Prosecutor Joseph Arnel Zerna and deputy city prosecutor Alvin Aseniero, who ordered the release from police custody of the two respondents, whose names were withheld upon their request.
The case stemmed from the complaint of the foreigner’s former lover, accusing him and the babysitter of allegedly kidnapping her two children aged 9 (a girl) and 3 (a boy), from a hotel in Dumaguete City on July 18.
The resolution cited that the complainant, in her affidavit, admitted that when she and the foreigner lived together as husband and wife, the foreigner became the father of her two children.
However, the complainant later claimed in her affidavit against the respondents that the father of her son is her former live-in partner, who is also the father of her daughter.
"Whether this statement is true or not for whatever reason this was claimed by the complainant in her present complaint against the foreigner, the fact is the foreigner is the father as shown in the child's birth certificate, with both parties as parents and informants," the resolution said. It is also noted that it was the complainant who attached the birth certificate in her complaint against the foreigner.
It was also stated in a joint resolution that in the evening of July 16, the complainant, along with her new lover, and the children, with their babysitter arrived in a hotel in Dumaguete City, and checked in two rooms.
In the early morning of July 18, when the complainant went to the room of her children to check on them, she was surprised that her children and the babysitter were no longer there, including their belongings.
Upon checking the closed circuit television (CCTV) camera footage of the hotel, which the complainant provided as evidence, she saw the foreigner, along with her brother, enter the hotel.
In less than five minutes, she saw her daughter go down the stairs from the second floor, followed by the babysitter, and the complainant's brother, who were carrying their belongings, and the foreigner, who was carrying the baby boy.
When they arrived here, the babysitter informed the complainant that they were at the residence of the foreigner, who also texted the complainant.
The complainant reported the incident to Dumaguete City Police Station, which conducted a pursuit operation, along with the Bacolod police, that led to the arrest of the two respondents here, for the alleged kidnapping.
Both respondents claimed that the complainant together with her two children and the babysitter left the family dwelling at their house here for Dumaguete City in the afternoon of July 16, without the knowledge of the foreigner.
For the part of the complainant, she claimed that in 2018, she and the foreigner separated because he abused her physically, which abuses were recorded at the Bacolod City police station. Despite having parted ways, the foreigner used to follow her where there were times that he took the children so she could come back to him and she was forced back against her will.
The complainant also revealed that she met another man and became her lover and when the foreigner found out, he continued to harass her forcing her to move to another place, bringing with her the two children and the babysitter.
The criminal complaint for kidnapping in alleged conspiracy with each other was filed against the respondents on July 21.
However, the Office said that there is absence of probable cause to indict the two respondents for the crime charged, after going over the evidence presented by the parties.
In the CCTV footage at the hotel, it was the daughter who led or was ahead in walking out of the hotel that early morning of July 18.
Moreover, the text communication between the complainant and the foreigner as well as those between the two respondents show the concern and worry of the foreigner for the safety and well-being of the two children especially when they are in the company of the complainant's new lover, who is not familiar and unknown to them.
In addition, when they arrived here and were already in the common residence, both respondents informed the complainant of such fact.
“All these facts negate the existence of malice, the intent to kidnap the two children and to deprive them of their liberty on the part of both respondents,” the resolution said.
Lastly, the Office agrees with the arguments of the babysitter that she was only following the orders and instructions of both her employers, in accompanying the complainant to Dumaguete City, and going back to Bacolod City. “Accordingly, she should not be held liable for the crime as charge in conspiracy with the foreigner,”
the resolution said.
The babysitter was employed by the complainant, but whose salary is paid for by the foreigner.
"Thus, in resolving this case, this Office takes into consideration not just the above-mentioned facts, but also the fact that complainant and the foreigner were both living together here, and it was the complainant, who left the common abode taking the children with her without the knowledge of the foreigner, ‘a fact that appeared not to have been revealed to the Dumaguete City Police Station authorities since this fact was not stated in the complainant's affidavit,’ and the fact that the foreigner is the father of the baby boy," the resolution stated.
Also, there was no custody agreement by either parents or coming from the court regarding the exclusive custody of the children to the complainant, the resolution said.
With the dismissal of the case, the police released the two respondents last week.