2007Do1950 Bodily Injury from Robbery Violation of the Act on the Punishment of Sexual Violence Crimes and the Protection of Victims, etc.

Justices Kim Hwang-sik(Presiding Justice), Kim Young-ran, Lee Hong-hun, Ahn Dae-hee(Justice in charge)

Main Issues

 * 1) The permissible degree of discretionary judgment in finding the accused guilty in the criminal actions and the probative value of scientific proving methods
 * 2) The degree of credibility of witness' statement and the procedural requirements for the enhancement of credibility in the case where the witness was confronted with only one suspect or only one picture was shown to the witness for the identification in the procedure of a criminal identification through the appearance of suspects et al.
 * 3) The case reversing the court below's decision finding the defendant guilty, on the ground of the assessment of the National Institute of Scientific Investigation that the gene type of the defendant was not identical to that of the criminal based on a gene test result through a DNA analysis, and under the reasoning that it is hard to acknowledge the credibility of the victims' statements since the procedural requirements to enhance the credibility of the victim identification procedure were not satisfied as the victim identification procedure had been conducted 3-5 months later that the occurrence time of the crime event, etc.

Summary of Decision

 * 1) Article 308 of the Criminal Procedure Act that provides for the principle of free assessment permits the judge to use his discretionary judgment to determine a piece of evidence's probative value, because it is an appropriate way to discover the real truth and it does not mean that the judge's arbitrary judgment shall be quoted, therefore the judge of a de facto trial who holds the absolute right to judging evidence shall consider all recognitions obtained and all evidence investigated in trial procedures in recognizing facts with no exception. In addition, the probative value of a piece of evidence is subject to the discretionary judgment of a judge, but such judgment shall be in line with logic as well as with the rule of experience, assessment that is enough to deliver a guilty verdict at a criminal trial shall be of a degree where there shall be no room for reasonable doubt. In particular, in the case of scientific evidence methods including gene tests or blood type tests, if all factual premises are proven to be true and the method of reasoning is scientifically justifiable so there is absolutely no or only negligible margin of error, they shall be deemed to be significantly binding for a judge to recognize facts, therefore even though recognizing facts is the right of a de facto trial, recklessly excluding it without any reasonable ground amounts to going beyond the limit of the principle of free assessment, which cannot be permitted.
 * 2) In the procedure of identifying a criminal through the appearance of suspects et al., confronting only one suspect with the witness or showing only one picture to the witness to make him identify if the suspect is the criminal or not might give the witness a subconscious implication, under the circumstances of not having perfect memory and having inaccurate memories, that either the suspect or the person in the picture is being suspected to be the criminal, so the statement of a witness in the procedure of identifying a criminal through the above method shall be deemed to have low credibility, unless there are additional situations such as where the suspect has met the victim before or where there are other situations than the statement of the victim where the suspect should be suspected to be the criminal. In this regard, to raise the credibility of the statement of a witness in the procedure of identifying a criminal, the witness's statement or description of the appearances of the criminal et al. should be recorded in detail in advance, and more than one person including the suspect all of whom are similar in appearances should be confronted at the same time to the witness so that he can identify the criminal, while the suspect, the witness and the other people for comparison should not contact each other in advance, and the process and the result of the confrontation should be documented in letters as well as in photographs so that they can be evaluated for their value for evidence later, and such principle should basically be followed in the procedure to identify the criminal through providing photographs as well.
 * 3) The case reversing the court below's decision finding the defendant guilty, on the ground of the assessment of the National Institute of Scientific Investigation that the gene type of the defendant was not identical to that of the criminal based on a gene test result through a DNA analysis, and under the reasoning that it is hard to acknowledge the credibility of the victims' statements since the procedural requirements to enhance the credibility of the victim identification procedure were not satisfied as the victim identification procedure had been conducted 3-5 months later that the occurrence time of the crime event, etc.

Reference Provisions

 * 1) Article 308 of the Criminal Procedure Act
 * 2) Article 308 of the Criminal Procedure Act
 * 3) Articles 199 and 308 of the Criminal Procedure Act


 * Article 199 of the Criminal Procedure Act (Investigation and Necessary Examination)


 * (1) Necessary examinations may be made in order to achieve the purpose of an investigation: Provided, That compulsory measures shall be taken only where otherwise provided in this Act to the least extent necessary.


 * (2) A public office, or public or private organization may be required to make a report on necessary matters regarding an investigation.


 * Article 308 of the Criminal Procedure Act (Principle of Free Evaluation of Evidence)

The probative value of evidence shall be left to the discretion of judges.

Reference Cases

 * 1) Supreme Court Decision 2004Do2221 delivered on June 25, 2004(Gong2004Ha, 1290), Supreme Court Decision 2003Do3945 delivered on May 25, 2006(Gong2006Ha, 1196)
 * 2) Supreme Court Decision 2000Do4946 delivered on Feb.9, 2001(Gong2001Sang, 688), Supreme Court Decision 2003Do7033 delivered on Feb. 27, 2004(Gong2004Sang, 579), Supreme Court Decision 2004Do7363 delivered on May 27, 2005


 * Defendant: Defendant


 * Appellant: Defendant


 * Counsel: Public Defender Moon Sang-won


 * Judgment of the court below: Busan High Court Decision 2006No757 delivered on Feb. 8, 2007

Disposition
The decision of the court below shall be reversed, and the case shall be remanded to the Busan High Court.

Reasoning
This is to judge the Grounds for Appeal.

1. Article 308 of the Criminal Procedure Act that provides for the principle of free assessment permits the judge to use his discretionary judgment to determine a piece of evidence's probative value, because it is an appropriate way to discover the real truth and it does not mean that the judge's arbitrary judgment shall be quoted, therefore the judge of a de facto trial who holds the absolute right to judging evidence shall consider all recognitions obtained and all evidence investigated in trial procedures in recognizing facts with no exception. In addition, the probative value of a piece of evidence is subject to the discretionary judgment of a judge, but such judgment shall be in line with logic as well as with the rule of experience, assessment that is enough to deliver a guilty verdict at a criminal trial shall be of a degree where there shall be no room for reasonable doubt (refer to Supreme Court Decision 2004Do2221 delivered on June 25, 2004, et al.). In particular, in the case of scientific evidence methods including gene tests or blood type tests, if all factual premises are proven to be true and the method of reasoning is scientifically justifiable so there is absolutely no or only negligible margin of error, they shall be deemed to be significantly binding for a judge to recognize facts, therefore even though recognizing facts is the right of a de facto trial, recklessly excluding it without any reasonable ground amounts to going beyond the limit of the principle of free assessment, which cannot be permitted.

Meanwhile, in the procedure of identifying a criminal through the appearance of suspects et al., confronting only one suspect with the witness or showing only one picture to the witness to make him identify if the suspect is the criminal or not might give the witness a subconscious implication, under the circumstances of not having perfect memory and having inaccurate memories, that either the suspect or the person in the picture is being suspected to be the criminal, so the statement of a witness in the procedure of identifying a criminal through the above method shall be deemed to have low credibility, unless there are additional situations such as where the suspect has met the victim before or where there are other situations than the statement of the victim where the suspect should be suspected to be the criminal. In this regard, to raise the credibility of the statement of a witness in the procedure of identifying a criminal, the witness's statement or description of the appearances of the criminal et al. should be recorded in detail in advance, and more than one person including the suspect all of whom are similar in appearances should be confronted at the same time to the witness so that he can identify the criminal, while the suspect, the witness and the other people for comparison should not contact each other in advance, and the process and the result of the confrontation should be documented in letters as well as in photographs so that they can be evaluated for their value for evidence later, and such principle should basically be followed in the procedure to identify the criminal through providing photographs as well (refer to Supreme Court Decision 2003Do7033 delivered on February 27, 2004 et al.).

2. Through the compilation of the said evidence, the court below delivered a guilty verdict to the defendant for special rape attempt and special robbery against victim 1 who is not a party in this case and robbery assault against victim 2 who is not a party in this case, which is hard to understand in accordance with the above legal reasoning and the record.


 * A. First, concerning the credibility of the above victims' statements that directly fit the prosecuted fact about this part, the following circumstances are recognized in accordance with the record: 1 Person 1 who is not a party in this case, immediately after the incident, stated that the criminal was a man in his twenties or thirties, about 180cm tall with a round face, which is difficult to deem that it fits the appearance of the defendant (according to the record, the defendant is about 173cm tall), 2 Person 2 who is not a party in this case, immediately after the incident, stated that the criminal looked like he was in his late teens, about 167cm tall, and looked like a good person, and right before confronting the defendant, she only stated that the criminal was good-looking, with a very nice and neat-looking face, and never made a statement that would be detailed enough to confirm that the defendant was the criminal, and after confronting the defendant, she said she pointed the defendant out as the criminal because he had the same hairstyle as the criminal, meanwhile, to a question that asks about other bodily characteristics of the criminal, she stated that she did not remember as he could not look straight in the face of the criminal at the time of the above incident because she was too nervous and scared, so the possibility cannot be ruled out that Person 2 who is not a party in this case could not look at the face of the criminal well so she does not remember it, 3 The reason why the above victims identified the defendant as the criminal, along with the above appearances, is that the police was looking for the criminals of each of the above incidents based upon the statement of Person 2 who is not a party in this case that the eyes of the criminal were not focusing and based upon the statement of Person 1 who is not a party in this case that the criminal smelled like liquefied petroleum gas (LPG), and when the defendant stated, in the process of questioning him for remaining crimes while he had been arrested for crimes including special robbery against victim Lim Eun Shil, that he had inhaled glue near where each of the above incidents occurred, and the police suspected that the defendant had committed each of the above crime while intoxicated with glue, and let the victims identify if the defendant was the criminal or not, but the record does not even have any objective data to confirm that the defendant had committed the above crimes, 4 In the case of Person 1 who is not a party in this case, the police only showed her a photograph of the defendant first and asked if he was the criminal, and without any other person to compare who has similar appearances, confronted the defendant directly to identify if the defendant was the criminal or not, and in the case of Person 2 who is not a party in this case, the police made a contact to say that the criminal has been arrested and to summon the person to the police station, only showed her a photograph of the defendant first and asked if he was the criminal, and received the answered that the chances that he would be the criminal was about 70~80%, and confronted the defendant and only one more person directly to identify if the defendant was the criminal or not, which failed to meet the procedures that need to be observed to raise the credibility of the criminal identification procedure, in whose process it is possible that it was implied that the defendant who was the person in the photograph might be the criminal of each of the above cases, 5 In the case of Person 1 who is not a party in this case, the above criminal identification procedure was arranged more than five (5) months after the day of the incident, and in the case of Kim Soon Ok, the above criminal identification procedure was arranged about three (3) months after the day of the incident, and as the above victims had never met the defendant before, there is possibility that their memory about the criminal might not be accurate, due to the limitation in memory, et al., 6 Person 2 who is not a party in this case stated at the first court that the chances that he would be the criminal was about 70~80%, which means that she herself cannot rule out the possibility that the defendant is not the criminal. In accordance with the above, the statements made by the victims that identified the defendant as the criminal of each of the above case are hard to believe.


 * B. Furthermore, according to the record, the police, immediately after the crimes against Person 1 who is not a party in this case, received the clothes from Person 1 who is not a party in this case that had the semen of the criminal and requested the National Institute of Scientific Investigation for a gene test, along with the hair and saliva of the defendant in order to confirm that the defendant was the same person as the criminal of the above cases, and a DNA analysis showed that the gene type of the defendant was different from that of the criminal, which had been submitted to the first court.


 * Moreover, a gene test result through a DNA analysis shall be deemed to be highly credible, as long as the test was conducted by a person with sufficient professional knowledge and experiences using a generally established standard test method, whose result is recognized to have been analyzed through adequate procedures, and according to the generally approved professional knowledge by the gene test field that a different gene type is a determinant factor that it is not the identical person, the above result of the analysis shall be deemed to be a powerful evidence to prove that the defendant is innocent, so the prosecuted facts about this part shall not be deemed to have been proven with no reasonable doubt.


 * Therefore, the court below should have deliberated on the qualification of the professional who conducted the above analysis, on other circumstances where the credibility of the result should be suspected, such as if specimen was not properly managed or stored, or the test method was not appropriate, or the process was not reasonable or the analysis result itself was contradictory, before judging whether the defendant had committed the crimes or not, but it did not engage in any deliberation or judgment concerning this.


 * C. Moreover, as other evidence for the guilty verdict, the court below offers the court statement made by the defendant and the crime report filed by victim 2 who is not a party in this case, but the defendant, in the first court and in the court below, only made a statement with the purport that he could not remember if he had committed each of the above crimes, while the above crime report is nothing more than a report that a crime of robbery and injury was committed, which are not sufficient to be recognized as evidence for a guilty verdict on the prosecuted facts about this part.


 * D. Nevertheless, the court below accepted the statements of the above victims and sustained the ruling of the first court that there is proof that the defendant had committed the special rape attempt and special robbery against victim 1 who is not a party in this case, and the robbery and injury against victim 2 who is not a party in this case, and delivered a guilty verdict to the defendant on the prosecuted facts about this part, which is a judgment that goes against the principle of experience and logic in judging the probative value held by evidence, which affected the result of the decision through misunderstanding the legal reasoning about the principle of free assessment and through insufficient deliberation or violation of the rule of evidence selection, and therefore the argument in the Reasons for Appeal that holds the same purport is reasonable.

3. Therefore, out of the decision by the court below, the special rape attempt and special robbery against victim 1 who is not a party in this case, and the robbery and injury against victim 2 who is not a party in this case, shall not be sustained any more, and as one sentence has been pronounced against each of the above crimes and the remainder of each of the crimes against the defendant since they are in the relation of concurrent crimes as stipulated in the preceding paragraph of Article 37 of the Criminal Code, the decision by the court below shall be reversed in its entirety, and the case shall be returned to the court below and this decision was delivered with the assent of all Supreme Court Justices involved.

Source

 * Supreme Court Decision 2007Do1950 Delivered on May 10, 2007, Supreme Court Library of Korea

2007도1950