The Department of Justice (DOJ) National Prosecution Service (NPS) prosecutor designated to conduct the reinvestigation into the death of NOEL ORATE released a "Resolution on Reinvestigation” affirming the finding of the inquest proceeding conducted last 11 February 2012, concluding that the proper charge to file against the accused, ROMEO ALLAN ROBES, is indeed HOMICIDE and not MURDER.

The reinvestigation was ordered by the Regional Trial Court of Quezon City, Branch 218, upon motion of the heirs of the victim of Mr. Orate, who died on the night of 10 February 2012 at the residence of former Congresswoman NANETTE CASTELO DAZA after sustaining multiple gunshot wounds.

In conducting and resolving the court-ordered reinvestigation, Assistant State Prosecutor Gino Paolo S. Santiago limited the inquiry into a single issue, i.e., whether there is sufficient ground to engender the well-founded belief that circumstances exist that would qualify the killing of Mr. Orate to murder.

The resolution was based on the records of the inquest proceedings conducted by the City Prosecutor of Quezon City, which included Autopsy Report of the Philippine National Police (PNP) Crime Laboratory, the report from the Second Autopsy conducted by Dr. Raquel B. Del Rosario-Fortun, the supplemental sworn affidavit submitted by the private complainant and the Investigation Report of the National Bureau of Investigation (NBI). The latter was submitted pursuant to the directive of Secretary LEILA M. DE LIMA for the NBI’s Death Investigation Division (NBI-DID) to conduct its own reinvestigation to aid the court-ordered reinvestigation being conducted by the NPS. Respondent Robes chose to waive submission of his counter-aflidavit.

In concluding that only homicide was committed, ASP Santiago found that the killing was not attended by any of the qualifying circumstances enumerated in Article 248 of the Revised Penal Code, particularly treachery, evident premeditation and abuse of superior strength.

The NBI Investigation Report submitted by SI Rizaldy J. Rivera of the NBI-DID, dated 30 March 2012, recommended the charge of murder instead of homicide, concluding that the qualifying circumstances of treachery and abuse of superior strength attended the death of Mr. Orate. This was based on physical evidence consisting of the reports from the PNP’s investigation and "[t]he material inconsistencies on the statement given by the witness for respondent (as against the physical evidence secured), particularly that of former Congresswoman Daza .... ” However, the Legal and Evaluation Division of the NBI (NBI-LED) chose to recommend a continuing probe for complete case documentation and for clarification of certain issues.

On the part of the NPS, ASP Santiago, citing relevant and prevailing case law, reached a different conclusion after finding that private complainant failed to discharge the burden of proving the existence of the qualifying circumstance "in an evident and incontestable manner as the acts constituting the offense itself" through "direct evidence of the qualifying circumstance, or evidence which proves a fact in issue directly without reasoning or inferences being drawn on the part of the fact finder, as opposed to circumstantial evidence, or evidence which indirectly proves a fact in issue."

In particular, as to the claim of treachery, he found that the testimony presented by private complainants (those of Noel Orate, Jr. and Noel Rose Orate) "only narrated the events after the killing." As to the NBI’s recommendation, he found "[t]hat there is nothing in the report that would establish that the perpetrator consciously adopted a mode of attack to facilitate the perpetration of the killing without risk to himself, which is the essence of treachery.” On the other hand, "there is a witness testifying that the victim was armed at the time of the incident, and narrating circumstances that support self-defense." Though he acknowledged that the SOCO Report suggests that two out of the five gunshot wounds sustained by the victim were inflicted when he was already lying on the floor, the resolution cited jurisprudence that states that "when the assault is continuous, the fact that the final blows were inflicted in a manner consistent with treachery does not qualify the killing to murder, unless proven that treachery was also present at the inception of the attack."

Neither did ASP Santiago tind clear and convincing evidence of the existence of all the elements of evident premeditation or abuse of superior strength.

With the release of the Resolution on Reinvestjgation by the DOJ NPS, there does not appear to be anything that would further prevent the arraignment of the accused, which was deferred by the court to give way to the reinvestigation, and for the case to proceed to trial.

Any party who feels aggrieved by the Reinvestigating Resolution may avail of the remedy of a Motion for Reconsideration and, should that not prosper, of tiling a Petition for Review before the Secretary of Justice.