Acórdão nº 1496/09.0YRLSB-5 de Court of Appeal of Lisbon (Portugal), 11 de Novembro de 2009
Magistrado Responsável | VASQUES OSÓRIO |
Data da Resolução | 11 de Novembro de 2009 |
Emissor | Court of Appeal of Lisbon (Portugal) |
S Meio Processual: RECURSO PENAL Decisão: PROVIDO PARCIAL Sumário: I – O art. 355º, nº 2 CPP não abrange a prova documental o os meios de obtenção de prova que, por tal razão, podem ser invocados na fundamentação da sentença ainda que não tenham sido formalmente examinados em audiência.
II – Sendo o inquérito conhecido da defesa, pode esta, se assim o entender, contrariar atempadamente o valor probatório quer dos documentos, quer dos meios de obtenção de prova que se encontram nos autos, assim ficando eficazmente assegurado o princípio do contraditório.
III – A lei não proíbe de forma absoluta produção de depoimentos indirectos. O que proíbe é a valoração de tais depoimentos, se o juiz não chamar a depor a pessoa indicada pela testemunha como fonte do conhecimento que transmitiu ao tribunal. No entanto, o depoimento indirecto pode ser valorado sempre que a inquirição da fonte não seja possível, por morte, anomalia psíquica superveniente ou impossibilidade de ser encontrada.
Assim, chamando o juiz a fonte a depor, o depoimento indirecto pode ser valorado, mesmo nos casos em que a aquela se recusa, lícita ou ilicitamente, a prestar depoimento ou, por exemplo, diz de nada se recordar já (cfr. Ac. da R. do Porto de 07/11/2007, proc. nº 0714613, in http://www.dgsi.pt). É que nesta situação é possível o exercício do contraditório na audiência de julgamento...
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