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2007 (A) 80

2010.04.27
2007 (A) 80
Keishu Vol. 64, No. 3
Judgment concerning the case wherein the court ruled that the judgment in first instance, which found the accused to be guilty of the charged facts of homicide and arson of an inhabited building, etc. by combining indirect facts, and the judgment in prior instance, which affirmed the findings of fact in the judgment in first instance, were illegal for insufficient examination and suspected of containing errors in fact finding
Case charged for homicide and arson of an inhabited building
Judgment of the Third Petty Bench, quashed and remanded
Osaka High Court, Judgment of December 15, 2006
The judgment in first instance, which found the accused guilty of the charged facts of homicide and arson of an inhabited building by combining indirect facts, and the judgment in prior instance, which affirmed the findings of fact in the judgment in first instance, were illegal for insufficient examination and suspected of containing errors in fact finding with regard to indirect facts, in that the indirect facts found by the lower courts do not seem to include a fact that cannot be reasonably explained (or at least, that would be extremely difficult to explain) if the accused is not the perpetrator, and therefore, the judgment in first instance and the judgment in prior instance should inevitably be quashed pursuant to Article 411, items (i) and (iii) of the Code of Civil Procedure.
(There are concurring opinions, an opinion, and a dissenting opinion.)
Articles 108 and 199 of the Penal Code, Article 317, Article 411, items (i) and (iii), and the main clause of Article 413 of the Code of Criminal Procedure

Articles 108 of the Penal Code
A person who sets fire to and burns a building, train, tram, vessel or mine actually used as a dwelling or in which a person is actually present shall be punished by the death penalty or imprisonment with work for life or for a definite term of not less than 5 years.

Articles 199 of the Penal Code
A person who kills another shall be punished by the death penalty or imprisonment with work for life or for a definite term of not less than 5 years.

Article 317 of the Code of Criminal Procedure
Facts shall be found on the basis of evidence.

Article 411, items (i) and (iii) of the Code of Criminal Procedure
Even where none of the reasons prescribed in the items of Article 405 exist, the final appellate court may, by judgment, quash a judgment of prior instance when it finds that any of the following reasons exists and the judgment of prior instance would bring about a considerable injustice unless it is quashed:
(i) The judgment of prior instance contains a violation of laws and regulations that affects the judgment.
(iii) The judgment of prior instance contains deception of facts that affects the judgment.

Article 413 of the Code of Criminal Procedure
Where a judgment of prior instance is to be quashed for any reason other than those prescribed in the preceding Article, the case shall be, by judgment, remanded to the court of prior instance or the court of first instance or transferred to another court equivalent thereto; provided, however, that the final appellate court may make its own judgment on the case if it seems possible to immediately make a judgment by referring to the records of the case and the evidence examined by the court of prior instance and the court of first instance.
The judgment in prior instance and the judgment in first instance are quashed.
This case is remanded to the Osaka District Court.
Among the reasons for final appeal argued by the defense counsel, NAKAMICHI Takemi, Reasons I to III, including the allegations of violation of Article 37 of the Constitution and violation of a judicial precedent, are in effect assertions of unappealable violation of laws and regulations or errors in fact finding; the reasons for final appeal argued by the accused himself are assertions of errors in fact finding; and none of these reasons can be regarded as a reason for final appeal permissible under Article 405 of the Code of Criminal Procedure.
However, having examined the case by this court's authority in light of the arguments of the defense counsel and the accused, we should inevitably quash the judgment in prior instance and the judgment in first instance pursuant to Article 411, items (i) and (iii) of the Code of Criminal Procedure. The reasons for our conclusion are as follows.
1. The charged facts and the point at issue
The facts for which the accused is charged in this case can be summarized as follows. (1) On April 14, 2002, during the period from around 3:30 p.m. to 9:40 p.m., at B's residence in Unit No. 306 of the condominium located in d-ku, Osaka City (hereinafter referred to as the "Condominium"), the accused, with the intent to kill, strangled B's wife, C (age 28), with a nylon rope that was available at said place, thereby suffocating her to death due to cervical compression around that time and at said place; (2) at the time and place indicated in (1), the accused, with the intent to kill, put B and C's eldest son, D (age 1), under water in the bathtub situated in the bathroom of B's residence, thereby drowning him to death around that time and at said place; (3) in an attempt to set fire to the Condominium, around 9:40 p.m. on the same day, in the room of six (tatami) mats in size (about 9.9 square meters) of B's residence in Unit No. 306 of the Condominium, the accused set fire to the newspaper, clothes, etc. that were available at said place, and let the fire spread to the walls, ceiling, etc. of the room, thereby damaging by fire the walls, ceiling, etc. of Unit No. 306 of the Condominium which B and his family actually inhabited as their residence, and by doing so, the accused damaged the Condominium by fire.
The accused married B's natural mother, E, when B was a child, raised B as his adoptive father, and at some time in the past, the accused and E who lived with him kept in touch with B's family. However, due to B's troubles such as loan debts and involvement with women, at the time of the incident, the accused did not necessarily have a good relationship with B's family; when B's family moved to the Condominium at the end of February 2002, the accused was not informed of their new address. The incident described with the charged facts, indicated in (1) to (3) above, occurred while B was not in his residence, and it came to light as the dead bodies of C and D were discovered during firefighting. Following the investigation by the authorities, the accused was arrested on November 16, 2002, and then he was prosecuted for the facts mentioned in (1) and (2) above on December 7, 2002, and for the facts mentioned in (3) above on December 29, 2002.
With regard to the charged facts mentioned above, the public prosecutor argued that by combining a number of indirect facts that he/she pointed out, it can be easily found that the accused is the perpetrator, whereas the accused argued that he had not known the location of the Condominium, which is the scene of the incident, until the day of the incident, nor had he ever entered the premises of the Condominium on or before the day of the incident, and therefore he is not the perpetrator and he is innocent. The point at issue in this case is whether or not the accused is the perpetrator.

2. Judgment in first instance
The judgment in first instance ruled that some indirect facts which lead to a presumption that the accused is the perpetrator can be found based on evidence, and these facts are connected with one another in a manner that they mutually corroborate their credibility and strengthen their power to imply said presumption, and as a result, it is proved to an extent beyond a reasonable doubt that the accused committed the crimes charged in this case. In conclusion, the judgment in first instance found almost the same facts as the charged facts mentioned above, and sentenced the accused to life imprisonment with work (the public prosecutor demanded the death penalty). The process of presumption from those indirect facts is as follows.
(1) It is found that on April 14, 2002, the day of the incident, the accused was off work, and he left his residence around past 2:00 p.m., went to Hirano-ku, Osaka City by car, and engaged in some activities within or around that district until 10:00 p.m. on the same day. In combination with the facts mentioned in (A) to (E) below, it is also found that the accused went to the Condominium, the scene of the incident, on that day.
(A) From the ashtray installed on the half landing between the first and second floors of the west-side staircase of the Condominium that faced the road (hereinafter referred to as the "Ashtray") were collected 72 cigarette butts on the day following the day of the incident. Among these cigarette butts, there was one which was of the favorite brand of the accused (Lark Super Light) (this cigarette butt shall hereinafter be referred to as the "Cigarette Butt"), and the DNA pattern of the cells in the saliva on the Cigarette Butt matched the DNA pattern of the blood of the accused. The matching of DNA of this pattern is extremely rare, i.e. two out of 10 million persons. The scene of the incident was preserved by police officers shortly after the fire in question occurred. Based on these circumstances, it is found, as an unshakable fact, that on the day of the incident or at a certain point in time before that, the accused entered the Condominium and discarded the Cigarette Butt into the Ashtray.
(B) It is found that on the day of the incident, during the period from around 3:40 p.m. to around 8:00 p.m., a car of the same type and the same color as the car that the accused used at that time was parked at a point about 100 meters north of the Condominium.
(C) In the investigation stage, the accused himself admitted that he parked his car at said point on the day of the incident.
(D) It is found that on the day of the incident, during the period from past 3:00 p.m. until around 3:30 p.m., someone who closely resembled the accused was seen at the batting practice facility located about 80 meters north-northeast of the Condominium.
(E) The accused himself admitted that on the day of the incident, he went to Hirano-ku or the area around there by car in order to look for B or B's residence, and his admission of this fact is credible.
(2) On the other hand, as for the motive, it can be presumed, from the circumstances including those indicated in (A) to (C) below, that the accused became increasingly angry with B who, at the time of the incident, continued to be unfaithful to the accused, and the accused also harbored resentment toward C who, while refusing the approach of the accused as described later, aligned herself with B, or in the eyes of the accused, appeared to follow B. Based on this presumption, it can be said that there was a situation where it would not be surprising if the accused exploded in anger at C as triggered by some reasons such as conversations with C or her casual words and deeds. The fact that the accused, having such reasons, went to the scene of the crimes on the day of the incident, strongly implies that the accused is the perpetrator.
(A) From October 1 to 24, 2001, C and D lived with the accused at his residence. At that time, the accused was in love with C, and he sometimes dared to demand C to have sexual intercourse with him, hug her, kiss her, etc.
(B) However, C refused the approach of the accused, and after leaving the accused's residence without telling him and returning to B, she started to align herself with B and avoid contact with the accused.
(C) Although the accused had struggled to deal with B's loan debts as B's adoptive father and guarantor, B had neither been cooperative with nor grateful to the accused, but rather he had continued to be irresponsible and insincere.
(3) In the evening on the day of the incident, the accused, without good reason, broke his word to pick up E, who had gone to work in the morning, and switched off his mobile phone at around the time when it is highly possible that C and D died. After telling E by email that he was not able to pick her up, the accused did not contact her until about 20 minutes after the time of the fire outbreak. These acts of the accused are extremely unnatural, but one can reasonably explain and understand them by assuming that the accused is the perpetrator of the crimes.
(4) Besides, the statements of the accused about his behavior on the day of the incident are ambiguous and vague and contain many unnatural points and unreasonable changes, and all in all, these statements lack credibility. The accused, for no special reason, fails to reasonably explain part of his behavior on that day. In addition, the facts that [i] C, while alive, locked the door even when she was at home and she would not open the door except when a limited circle of acquaintances visited there, [ii] it is highly possible that the perpetrator of this case killed D, who had not even reached the age of two, in an attempt to silence him, and [iii] the perpetrator made elaborate arrangements to destroy evidence by setting a fire at the scene of the crimes, show the possibility that the crimes were committed by someone who was familiar to the victims. These facts also lead to the presumption that the accused was the perpetrator.
(5) Considering these facts as a whole, it should be said that it is proved beyond a reasonable doubt that the accused committed the crimes.
(6) With regard to the written statement of the accused made before the judicial police officers, dated August 17, 2002, in which the accused admitted that he entered the premises of the Condominium and climbed the stairs on the day of the incident (Exhibit Otsu No. 14), the accused argues that he signed this written statement without understanding what was written in it because he suffered fierce violence from the police officers. However, the content of this written statement can be regarded as a voluntary and credible statement, and this further corroborates the aforementioned determination affirming that the accused is the perpetrator.

3. Judgment in prior instance
Against the judgment in first instance summarized above, the accused filed an appeal on the grounds of violation of laws and regulations concerning court proceedings and errors in fact finding, whereas the public prosecutor also filed an appeal on the grounds of inappropriateness in sentencing.
As one of his reasons for appeal, the accused alleged violation of laws and regulations concerning court proceedings to the effect that the aforementioned written statement before the judicial police officers (Exhibit Otsu No. 14) was an involuntary statement and the court of prior instance violated Article 322, paragraph (1) of the Code of Criminal Procedure by admitting this written statement as evidence. With regard to this allegation, the judgment in prior instance found such violation of laws and regulations concerning court proceedings as alleged. On the other hand, with regard to the reason alleging errors in fact finding, the judgment in prior instance ruled that the holdings in the judgment in first instance were justifiable on the whole, and even if said written statement were excluded, there was no probability of modification to the judgment in first instance finding the accused to be the perpetrator of the crimes, and in consequence, said violation of laws and regulations concerning court proceedings cannot be regarded as one that would apparently affect the judgment. In conclusion, the judgment in prior instance found the reasons for appeal of the public prosecutor alleging inappropriateness in sentencing to be well-grounded, and quashed the judgment in first instance and sentenced the accused to the death penalty, on the basis of the facts constituting the crimes as found in the judgment in first instance.

4. Holdings of this court
However, we can affirm neither the holdings of the court of first instance regarding the findings of fact nor the holdings of the court of prior instance that maintained such findings of fact, on the following grounds. When making a finding of guilt in a criminal trial, proof to an extent beyond a reasonable doubt is required. Even where findings of fact should be made based on circumstantial evidence, there is no difference in the required standard of proof as compared with the case of making findings of fact based on direct evidence (see 2007 (A) No. 398, decision of the First Petty Bench of the Supreme Court of October 16, 2007, Keishu Vol. 61, No. 7, at 677), but when there is no direct evidence, indirect facts found based on circumstantial evidence must include a fact that cannot be reasonably explained (or at least, that would be extremely difficult to explain) if the accused is not the perpetrator. Nevertheless, as shown below, the indirect facts found and affirmed in this case cannot be regarded as satisfying this requirement, and we cannot say that the court of first instance and the court of prior instance carried out examination sufficiently.
(1) The principal grounding for the presumption made in the judgment in first instance from the indirect facts is the fact that the accused went to the Condominium on the day of the incident. And the major reason for asserting this finding of fact is the presumption from the fact that the DNA pattern of the cells in the saliva on the Cigarette Butt that was left in the Ashtray matched the DNA pattern of the blood of the accused, which can be acknowledged based on evidence.
Against this process of presuming that the accused went to the Condominium on the day of the incident by reason of this matching of the DNA patterns, the accused had asserted, from the first instance, that he had handed his portable ashtray to B and C and it was possible that C discarded the Cigarette Butt into the Ashtray via that portable ashtray. The accused made the same assertion in his reasons for appeal.
The judgment in prior instance held that some facts that prove such assertion of the accused can be found---e.g. [i] another cigarette butt (Short Hope Light) that E seems to have smoked was collected from the black metal portable ashtray discovered in B's residence, [ii] this seems to have happened because C or some other person had taken that portable ashtray from the accused's residence, [iii] in addition to this metal portable ashtray, C or some other person might also have taken a vinyl portable ashtray, and [iv] the Cigarette Butt had changed color to brown and become dirty. However, the judgment in prior instance denied the possibility that the Cigarette Butt was discarded from that metal portable ashtray, on the grounds that it was unimaginable that only the cigarette butt of the accused was discarded, whereas E's cigarette butt was left in there. The judgment in prior instance also denied the possibility that the Cigarette Butt was discarded via that vinyl portable ashtray, holding as follows: [i] although cigarette butts put into a vinyl portable ashtray are usually flattened and covered all over with ash, the Cigarette Butt is neither flattened nor covered all over with ash, but rather, in light of its shape, its seems that the Cigarette Butt was discarded into an ashtray without being stubbed out and the fire went out by itself at its filter; [ii] as for the fact that the Cigarette Butt changed color to brown, it is natural that when a cigarette butt falls into an ashtray, with its filter being wet with saliva, it would change into such state even if it is collected on the following day.
However, it is questionable if cigarette butts put into a vinyl portable ashtray are actually always in the shape as described in the judgment in prior instance, and what is more, there is no evidence for determining that the portable ashtray via which the Cigarette Butt could have been discarded was nothing other than one made of vinyl. (Based on the relevant evidence, from B's residence was also discovered another portable ashtray, which is a box type and colored in white and blue, and it seems that this portable ashtray was E's or the accused's and C took it home. The defense counsel and the accused argue that there is the possibility that the Cigarette Butt was discarded from this portable ashtray.) As for the color change, the photographs of the Cigarette Butt taken at the time of the expert examination of the saliva, about one and a half months after the incident, show that the entire part of the filter of the Cigarette Butt changed color, and it is extremely unnatural to consider that this change was caused by the saliva. As mentioned above, the Cigarette Butt was collected on the day following the day of the incident. The photographs taken at that time indicate that the Cigarette Butt had already changed color to somewhat brown, and such color change could not have occurred in such a short time unless it got wet with water or other similar events happened. Police Officer F, who collected the Cigarette Butt from the Ashtray, testified that he/she does not remember whether the inside of the Ashtray was wet, but at least by seeing the photographs, it does not seem to be wet. Taking account of this testimony, this color change can even be construed to imply the possibility that the Cigarette Butt had been discarded long before the day of the incident. We cannot accept the aforementioned explanation of this point in question given by the judgment in prior instance, nor can we find in the case records any other grounds that give a reasonable explanation of the change of the color of the Cigarette Butt. Consequently, we should inevitably say that the holding of the court of prior instance is unreasonable in that it denied the possibility that the Cigarette Butt was discarded via a portable ashtray on the grounds pointed out above. (As the judgment in prior instance mentioned, the grounds for excluding this possibility stated in the judgment in first instance are also unacceptable.)
In conclusion, irrespective of how we evaluate the facts indicated in 2(1)(B) above and thereafter, we cannot make a finding of fact that the accused went to the Condominium on the day of the incident.
(2) Meanwhile, as mentioned above, there were many other cigarette butts in the Ashtray where the Cigarette Butt was discovered, and among them, there were four cigarette butts that were of the same brand as the one C smoked (Marlboro Light [written in golden letters]). If a DNA pattern that matches C's DNA pattern is detected from the saliva or other substances on these cigarette butts, this would imply an extremely high possibility that C discarded the contents of a portable ashtray into the Ashtray. However, there is no evidence showing that expert examination or other examination was conducted with regard to this point. In addition, although the position, etc. of the Cigarette Butt in the Ashtray is also an important factor, evidence on this point is insufficient, as the aforementioned police officer who collected the Cigarette Butt has no recollection about it. Among the several photographs of the Ashtray taken at the time of the inspection, there is only one photograph that shows its inside, which was taken of the Ashtray from above with its cover detached, but the Cigarette Butt cannot be confirmed in this photograph. In other photographs taken with all of the contents of the Ashtray being taken out and displayed in line, the Cigarette Butt is shown at such a small size that it is barely possible to confirm whether the object in question is really the Cigarette Butt. Furthermore, as mentioned above, the change of the color of the Cigarette Butt is a significant question, and it is necessary to consider whether, if the accused really discarded the Cigarette Butt on the day of the incident, there was any possibility that it would get wet before it was collected by the police officer. However, it seems that the authorities did not even investigate this point sufficiently. As stated above, whether or not the Cigarette Butt was discarded by the accused on the day of the incident is the most important fact which decides whether the accused can be presumed to be the perpetrator. The court of first instance and the court of prior instance cannot be deemed to have carried out examination sufficiently, even though the accused raised a specific question in his assertion mentioned above against the presumption made from the matching of the DNA patterns.
(3) Moreover, even granted that it is found that the accused went to the Condominium on the day of the incident, it is still questionable whether one can go so far as to say that in combination with other indirect facts found, there is a fact that cannot be reasonably explained (or at least, that would be extremely difficult to explain) if the accused is not the perpetrator. More specifically, as the indirect facts which lead to the presumption that the accused is the perpetrator, the judgment in first instance presented the aforementioned facts about the cigarette butt as well as the facts indicated in 2(2) to (4) above. However, with regard to the motive to kill C, for example, the judgment in first instance only pointed out that there was a situation where it would not be surprising if the accused exploded in anger at C, and this cannot be positively regarded as a motive for killing someone. Also, as for the fact that the accused switched off his mobile phone on the day of the incident, when taking it into account that the killing of this case is considered to be an impulsive offense, we cannot say that a sufficiently convincing explanation has been given as to why such fact about the mobile phone leads to the presumption that the accused committed the killing. We should therefore conclude that it is extremely difficult to find the accused guilty solely based on the indirect facts indicated by the judgment in first instance on this point and other points.
The primary reason why the judgment in first instance and the judgment in prior instance made such holdings as described above may be that the court of first instance considered it possible to find the accused guilty only based on the limited scope of indirect facts, and the court of prior instance affirmed this view. We cannot say that examination has been carried out sufficiently from the standpoint of whether or not there is "a fact that cannot be reasonably explained (or at least, that would be extremely difficult to explain) if the accused is not the perpetrator," as mentioned above. In light of the magnitude of this case, it is necessary to, from such standpoint, allow the public prosecutor to prove other indirect facts, including those that the court of first instance did not use to find guilt, and comprehensively examine all these facts.

5. Conclusion
While denying the possibility that the Cigarette Butt discovered in the Ashtray was discarded by C via a portable ashtray, the judgment in first instance made a finding of fact that the accused discarded the Cigarette Butt into the Ashtray on the day of the incident, and then by regarding this fact as a key fact for presuming that the accused is the perpetrator and combining it with other indirect facts, the judgment in first instance made a finding that the accused is the perpetrator of the crimes. The judgment in prior instance affirmed this conclusion, denying insufficiency in examination or errors in fact finding alleged against the judgment in first instance. We should conclude, for the reasons stated above, that the judgment in first instance and the judgment in prior instance contain holdings that were made without clarifying the questions about the Cigarette Butt and also without carrying out sufficient examination about the indirect facts, and as a result, these judgments are suspected of containing errors in fact finding, which apparently affect the judgments. It would amount to a considerable injustice if the judgment in first instance and the judgment in prior instance were not quashed.

Therefore, without needing to make a determination on Reason IV for final appeal argued by the defense counsel, NAKAMICHI Takemi, we have decided to quash the judgment in prior instance and the judgment in first instance pursuant to Article 411, items (i) and (iii) of the Code of Criminal Procedure, and for further examination, to remand this case to the court of first instance, the Osaka District Court, pursuant to the main clause of Article 413 of said Code. The judgment in the form of the main text is rendered by the unanimous consent of the Justices, except that there is a dissenting opinion by Justice HORIGOME Yukio. There are also concurring opinions by Justice FUJITA Tokiyasu, Justice TAHARA Mutsuo, and Justice KONDO Takaharu, respectively, and also an opinion by Justice NASU Kohei.

The concurring opinion by Justice FUJITA Tokiyasu is as follows.
I am in agreement with the majority opinion, but I would like to give some supplementary comments to explain that, with regard to the methods of fact finding employed by the judgment in first instance, which found the accused to be the perpetrator of the crimes charged in this case, and the judgment in prior instance, which sustains the former, there is a serious doubt that cannot be cleared up in light of the rule of presumption of innocence, which is said to be the foundation of criminal justice.
1. The judgment in first instance and the judgment in prior instance found the accused to be the perpetrator of the crimes of this case basically on the following grounds.
(1) There are several indirect facts that prove that the accused entered the Condominium on the day of the incident.
(2) Although it cannot be found that the accused had the motive to kill the victims, there was a situation where it would not be surprising if the accused exploded in anger at C as triggered by some reasons such as conversations with C or her casual words and deeds.
(3) There is no circumstance found which implies that the crimes were committed by a third person.
(4) The accused had no alibi around the estimated time of death of the victims, and the statements of the accused on this point are ambiguous and contain unnatural changes, etc.
(5) These facts individually do not directly prove that the accused is the perpetrator, but when they are evaluated comprehensively, they are connected with one another and mutually corroborate their credibility and strengthen their power to imply the presumption that the accused is the perpetrator.
However, I have to say that these grounds, as expounded below, seem to be insufficient to prove beyond a reasonable doubt that the accused is the perpetrator.

2(1) With regard to the indirect facts that are alleged to prove the fact that the accused went to the Condominium on the day of the incident, even if the existence of these facts is established, all of them are far away from the charged facts, and in this respect, they are, in nature, nothing more than a kind of secondary indirect facts that underlie the primary indirect facts. For example, the fact that a car of the same type and the same color as the car that the accused used at that time (the white Honda Stream) was parked for a long period of time (a few hours), which includes the time of occurrence of the incident, on the street in front of a store near the scene of the incident, does not necessarily prove the fact that the very car used by the accused was parked at that time and place. Also, with regard to the fact that someone who closely resembled the accused was seen at the batting practice facility near the scene of the incident, this fact itself proves nothing but the fact that the accused was present in the vicinity of the Condominium where the incident occurred. (The accused does not completely deny the fact that he was present in the vicinity of the Condominium on the day of the incident, although the exact place cannot be specified).
Under these circumstances, the two facts mentioned above seem to be capable of only corroborating evidence, if it exists at all, which implies more positively that the accused went to the scene of the crimes on the day of the incident. There is only one fact that is allowed to play a role as such positive evidence: the fact that, as a result of expert examination, a DNA pattern that matches the accused's DNA pattern was detected from the cigarette butt that was discovered in the ashtray situated on the half landing of the staircase leading to the scene of the crimes in the Condominium. However, as the majority opinion points out in detail, it seems difficult to definitely answer in the affirmative to, at least, the question of whether or not the cigarette butt in question can be presumed, in light of factors such as the circumstances where it was discovered, to have surely been discarded by the accused into that ashtray on the day of the incident (in other words, whether or not one can go so far as to completely deny the possibility that C had previously taken back to the Condominium the portable ashtray which contained the cigarette butts of the accused, and then at a certain point in time before the day of the incident, C discarded its contents into said ashtray, as argued by the defense counsel and the accused).
In short, due to the existence of the aforementioned two indirect facts, one cannot deny that the possibility that the accused went to the Condominium on the day of the incident can be recognized with considerably high probability, but one cannot go so far as to say that it is impossible to deny this very fact itself based on evidence. Furthermore, even if the existence of this fact is found, the fact itself (including the fact that it has become clear that the accused made a false statement in this regard) is nothing more than a single indirect fact in relation to the charged facts, and it cannot yet be regarded as having a strong probative value as proof to find the accused's guilt.
(2) With regard to the motive of the crimes, the judgment in first instance and the judgment in prior instance held that one cannot go so far as to say that the accused had the motive to kill C, but the fact that there was a situation where it would not be surprising if the accused exploded in anger at C as triggered by some reasons such as conversations with C or her casual words and deeds, can be an indirect fact toward affirming that the accused is the perpetrator, although this fact alone has a limit to its power to imply such presumption. However, I cannot help but feel doubtful about the approach to refer to only such a general and abstractive situation as the positive grounding for finding the accused guilty, without making any specific finding of fact at all about what happened between the accused and C on the day of the incident. In other words, also with regard to the motive of the crimes, the facts found by the judgment in prior instance seem to have only a limited degree of probative value to the extent that the general possibility of the commission of the crimes by the accused cannot be denied (it cannot be said that there can be no motive on the part of the accused). In addition, even if, as mentioned above, one considers that the impulsive fit of passion or rage that occurred in the accused (or is likely to have occurred in him) at the scene was the motive to kill C, this cannot be deemed to further give a fully persuasive explanation about why the accused even killed D, whom the accused had always treated with affection (and who was only one year and ten months old), just for the purpose of destroying evidence.
(3) None of the grounds based on which the judgment in first instance denies the possibility of the commission of the crimes by a third person---those excluding the possibility of a kind of random street killing committed by someone disguised as a parcel or mail delivery person---can necessarily be deemed to be very persuasive. It should be noted that the investigation process of this case cannot be deemed to be unquestionable in some aspects for its lawfulness, as suggested by the fact that the judgment in prior instance unavoidably denied the voluntariness of the written statement of the accused, dated August 17, 2002 (Exhibit Otsu No. 14), in which he admitted that he went to the Condominium. In the reasons for final appeal, suspicion is raised to the effect that the investigation team might have jumped to the conclusion that the accused was the perpetrator from an early stage of the investigation process, and collected only such facts that could support this conclusion, while having no interest in (or dismissing) other facts. Such assertion cannot be completely ignored.
(4) The accused's explanation about his behavior on the day of the incident is extremely ambiguous, and in particular, I should say that the fact that he mentioned nothing clear about the places where he went on that day makes me significantly doubtful. However, such fact itself is not a decisive fact that leads to the presumption that the accused is the perpetrator, but it only suggests that the possibility of his being the perpetrator cannot be denied. Also, with regard to the fact that the accused switched off his mobile phone around the time of the crimes, to which the judgment in prior instance attaches importance, if this fact is taken as a fact that proves the accused's commission of the crimes, this would lead to the inference that the accused premeditated the crimes and that is why he switched off his mobile phone beforehand. However, there is no finding of fact that the crimes were premeditated (or committed with willful negligence), but rather, as mentioned above, it is presumed that the accused committed the crimes due to the intent to kill that occurred impulsively or accidentally in the course of communicating with C at the scene of the crimes. If this presumption is correct, can it be easily imagined that the accused, under such circumstances, could have acted so coolly as to switch off his mobile phone? Even if this fact about the mobile phone is referred to as proof to show that the accused switched off his mobile phone for the purpose of concealing his visit to the victims' residence, rather than concealing his commission of the crimes, switching off one's mobile phone in order to save the power in the battery cannot be regarded as very abnormal behavior. What is more, although it was not particularly kept secret, from the beginning, that the accused went out to find the victims' residence on that day, he suddenly switched off his mobile phone. There is no clear finding of fact by the court of first instance and the court of prior instance as to why the accused acted as such, and everything is just an inference made on the assumption that the accused is the perpetrator. Besides, as expounded above, even granted that such fact about the mobile phone can be found, the fact itself that the accused visited the victims' residence, when it is viewed in relation to the charged crimes, can be regarded as nothing more than a single indirect fact.
(5) With regard to the indirect facts mentioned above, the judgment in first instance and the judgment in prior instance ruled that although they individually cannot be evidence of the accused's guilt, if they are "evaluated comprehensively," they prove his guilt beyond a reasonable doubt. I do not deny that this inference is more or less possible. However, the indirect facts found in this case, as long as they are looked at one by one, cannot be evaluated as very strong evidence, as explained above, but except for the fact about the DNA pattern of the cigarette butt, they seem to be rather weak as evidence of guilt. As explained above, all of the facts found in this case suggest the possibility that the accused is the perpetrator, and it cannot be denied that, assuming that the accused is the perpetrator, most of these facts can be explained without contradiction. However, in general, there is no need to particularly note that it is extremely dangerous to clearly assert the existence of a certain underlying fact only on the grounds that by assuming that underlining fact, various other facts can be explained without contradiction; the only conclusion that one can draw from this is that the existence of such underlying fact can be set up as a hypothesis. In order to claim a "hypothesis" to be a "truth," it must be clearly proved that no other explanation is possible. The discovery of truth in natural science differs in nature from the finding of facts in a criminal trial, but even taking account of such difference, we must give due consideration to this fundamental, theoretical framework in the latter as well. Examining this case from this point of view, in order to declare the accused to be the perpetrator, it is absolutely necessary to prove not only the "facts that can be explained without contradiction on the assumption that the accused is the perpetrator," but also the "facts that cannot be reasonably explained (or at least, that would be extremely difficult to explain) if the accused is not the perpetrator." There is a rule concerning the finding of guilt based on the judicial precedent of this court: " 'proof beyond a reasonable doubt' does not mean that there is no room at all to have a doubt about the existence of any fact contrary to the charged fact, but it means that even when there is room, as an abstract possibility, to have a doubt about the existence of any contrary fact, if, in light of sound, social common sense, such doubt is generally judged to be unreasonable, the court may find guilt" (the decision of the First Petty Bench of the Supreme Court of October 16, 2007, mentioned in the majority opinion). Needless to say, my point of view on this case as mentioned above is not inconsistent at all with this rule. Rather, I consider that it must be strictly forbidden to interpret the reasoning of this judicial precedent in a broad sense, so as to broadly allow the approach to accumulate several pieces of indirect evidence, which individually have only weak probative value, and make a comprehensive determination based on such accumulated evidence to the effect that "all of these pieces of evidence can be explained without contradiction on the assumption that the accused is the perpetrator; therefore, the accused is the perpetrator."

3. In light of the dissenting opinion by Justice HORIGOME Yukio, I would like to give additional comments below.
As mentioned above, I believe that it is extremely dangerous to declare the accused to be the perpetrator only by reason of the fact that "all facts can be explained without contradiction on the assumption that the accused is the perpetrator" (hereinafter referred to as "Fact 1"); when finding guilt, it is necessary to simultaneously find the existence of a "fact that cannot be reasonably explained (or at least, that would be extremely difficult to explain) if the accused is not the perpetrator" (hereinafter referred to as "Fact 2"). In such case, if Fact 2 is already found merely by referring to any individual fact(s) among the indirect facts produced as evidence for finding guilt, it is not necessary to further make a comprehensive determination. This is pointed out in the dissenting opinion, and I agree with it. However, such rule does not apply to the facts of this case, but rather it is exactly when a comprehensive determination is required. Therefore, the necessity to find Fact 2 should further be considered in relation to the modality of a comprehensive determination. I think that there is basically no point in repeating this.
More specifically, when making a comprehensive determination, it is necessary to question whether or not only Fact 1 but also Fact 2 are found. In this case, if there only exist the indirect facts that were used by the court of first instance and the court of prior instance as the basis of their judgments, it cannot be said that Fact 2 is found merely by referring to individual facts or even by combining them or evaluating them "comprehensively." Moreover, in the first place, the lower courts do not seem to have taken note of this question squarely when examining this case. This is exactly where the majority opinion finds a problem.
In his dissenting opinion, Justice HORIGOME states that "since the purpose of a Saiban-in (lay judge) trial is to ensure that the sound common sense of the people, with diverse experience, will be reflected in a criminal trial, it must be avoided that Saiban-in accept, without modification, the conventional approach of fact finding that professional judges have established," and then with regard to the point of view shown above, he argues that "(the purpose of the application of said concept [translation note: the concept of 'a fact that cannot be reasonably explained if the accused is not the perpetrator']) may help explain what "proof beyond a reasonable doubt" means, but I think that such concept is inappropriate at present, now that Saiban-in trials have been introduced for the purpose as described above." However, it is questionable whether the attitude to call for the "sound common sense of the people" blindly, without giving any clue to understand the concept of "proof beyond a reasonable doubt," which cannot necessarily be deemed to be easily understandable to ordinary people, is really in line with the true aim of the Saiban-in system. What is more, I believe that it is the duty of jurists to clearly present the true picture of the reasonable inference rule for fact finding, while taking into account the fundamental principle of criminal justice.

The concurring opinion by Justice TAHARA Mutsuo is as follows.
I am in agreement with the majority opinion, but in view of the magnitude of the case, I would like to give supplementary comments below.
In this case, the accused entirely denies having committed the crimes he is charged with. Having neither direct material evidence nor an eyewitness linking the accused with the crimes, the judgment in prior instance and the judgment in first instance affirmed by the former, except for the holding on the admissibility of the written statement of the accused, made a finding that the accused committed the crimes by accumulating indirect facts. However, although all of the indirect facts cited by the judgment in first instance are facts that do not contradict one another supposing that the accused is the perpetrator, these facts, as pointed out by the majority opinion, do not include "a fact that cannot be reasonably explained (or at least, that would be extremely difficult to explain) if the accused is not the perpetrator." The individual indirect facts cited by the judgment in first instance are in want of more important indirect facts in order to connect them with the fact that the accused is the perpetrator, are extremely weak in terms of their connection with the fact that the accused is the perpetrator, or are questionable as to whether or not there is any connection at all between the respective indirect facts and the accused. Even by combining such indirect facts, it is still impossible to clear up a reasonable doubt before finding the accused to be the perpetrator of the charged crimes. In the sections below, I will examine the several points that are recognized by the judgment in first instance, which is affirmed by the judgment in prior instance, as indirect facts that prove that the accused is the perpetrator.
1. The Cigarette Butt
The DNA pattern of the cells in the saliva detected from the cigarette butt of Lark Super Light, which was one among the cigarette butts discovered in the Ashtray on April 15, matched the DNA pattern of the accused, and this fact is recognized as an important indirect fact that proves that the accused is the perpetrator. However, as the majority opinion indicates and I will later discuss, in light of the circumstances surrounding the Cigarette Butt, there remains a serious doubt about finding that the Cigarette Butt was discarded into the Ashtray on the day of the incident, and moreover, even supposing that the Cigarette Butt can be presumed to have been discarded into the Ashtray on the day of the incident, such fact is not immediately linked with the fact that the accused is the perpetrator, but it only serves as substantial evidence to corroborate any other indirect fact that can link the accused and the crimes, if such other fact exists separately from the fact about the Cigarette Butt.
(1) The meaning of the Cigarette Butt
The fact that the Cigarette Butt was discovered in the Ashtray might prove the fact that the accused visited the Condominium, unless it is found to be possible that the Cigarette Butt was discarded into the Ashtray by a third person (the defense counsel and the accused have been alleging such possibility since the first instance, by arguing that there is the possibility that late C took home the portable ashtray that the accused possessed, and discarded its contents into the Ashtray).
However, as expounded below, the fact about the Cigarette Butt is not immediately linked with the presumption of the fact that the accused visited B's residence in the Condominium, nor, by any means, is it linked with the fact that the accused is the perpetrator.
(A) B and C moved to the Condominium on February 28, 2002. There is no evidence to show that the accused had visited B's residence in the Condominium on or before the day of the incident. Nor is there any direct evidence to show that the accused had known the address of the Condominium where B and C resided on or before the day of the incident. The judgment in prior instance ruled that based on E's testimony about her conversations with the accused around March 6, 2002, it can be presumed that the accused had had rough information about the address of B and C on or before the day of the incident. However, with regard to the details of the conversations between the accused and E around March 6, 2002, the accused stated, contrary to E's testimony before the court of first instance, that the topic of their conversations was that B had submitted a notification of dissolution of adoptive relation with the accused without consulting with the accused, and the accused denied having used violence against E. In addition, since E gave testimony while taking it for granted, from first to last, that the accused is the perpetrator, it is necessary to carefully assess the credibility of her testimony (I will discuss this point in another section below). It is unreasonable to make a finding that the accused already had rough information about the address of B and C as of March 6, only by referring to E's testimony. Furthermore, supposing that the accused had rough information of the whereabouts of B and C around that time, the accused could have been able to reach the Condominium before the day of the incident, but there is no evidence implying that the accused had visited the Condominium before the day of the incident.
(B) B and C, even after moving to the Condominium, did not indicate their names on the private box, assigned to Unit No. 306 where they resided, of the collective mailbox situated on the first floor of the Condominium (Exhibit Ko No. 5, Inspection Record), nor did they indicate their names where a nameplate was to be posted at the entrance of Unit No. 306 (Exhibit Ko No. 5, Inspection Record).
Under such circumstances, even if the accused reached the Condominium by chance, he could not have easily found that Unit No. 306 was B and C's residence. Therefore, in order to find out the address of B and C, the accused had no choice but to confirm with late C by phone or ask residents, etc. of the Condominium, but there is no evidence implying that the accused made a phone call to late C to confirm her address. In addition, if the accused made inquires to residents, etc. of the Condominium about the whereabouts of B and C or took other similar measures, some information about the behavior of the accused could have necessarily been acquired in the process of investigation by questioning people in the neighborhood of the Condominium about whether they saw any suspicious person or something similar, which the police authorities must have conducted after the occurrence of the incident. However, as far as the case records show, there is no evidence implying that the accused made any such inquiry.
(C) The judgment in prior instance suggests that the accused could have seen late C while she was on the veranda of Unit No. 306 on the day of the incident, and then by visually confirming that the person on the veranda was late C, the accused could have visited B's residence. However, such things could have possibly happened only by coincidence, and if, without any other corroborating evidence but only by reason of the possibility of such coincidental happenings, the court makes a finding that the accused was able to reach B's residence, that would go beyond the limits of a reasonable presumption based on facts, and it is absolutely unacceptable under the law of evidence.
(D) Thus, even if it is found at all that the accused visited the Condominium, this fact cannot immediately lead to the presumption that the accused visited B's residence on the day of the incident.
(2) Objective circumstances surrounding the Cigarette Butt
(A) The Cigarette Butt was collected from the Ashtray at the time of the inspection held on the day following the day of the incident. Looking at the photographs taken upon the inspection, with the cover of the Ashtray detached, the Cigarette Butt cannot be located in the upper part of the contents of the Ashtray. In addition, it is uncertain where in the Ashtray the Cigarette Butt was located (F, who collected the contents of the Ashtray, states that he/she picked up the contents with his/her hand and did not check where each piece of the contents was located).
(B) As the majority opinion points out, the photographs of the Cigarette Butt taken at the time of the expert examination of the saliva, about one and a half months after the incident, show that the entirety of the Cigarette Butt changed color. In general, such color change could happen if a cigarette butt is soaked in water, etc. (including alcohol or another beverage) or if it is exposed to wind and rain for a considerable period of time. (Justice HORIGOME states that a color change is recognized in the Cigarette Butt by comparing the photographs taken at the time of the inspection and the photographs taken at the time of the expert examination, and there can be no possible reason for such color change other than that it happened due to the passage of time. However, a question can be raised as to the finding per se that the color change occurred during that period of time, and what is more, in view of the circumstances where the articles of evidence have been kept in custody in this case as described by the investigation officers, it cannot happen that the Cigarette Butt changed color in such a short period of time, i.e. only one and a half months, as argued by Justice HORIGOME.) The judgment in prior instance held that it is natural that when a cigarette butt falls into an ashtray, with its filter being wet with saliva, it would change into the aforementioned state even if it is collected on the following day. However, if a person smokes a cigarette in an ordinary manner, it cannot happen that the person's saliva is attached to the filter to the extent that the entire filter changes color. If such a large quantity of saliva is attached, the expert examination would also be able to detect the blood type. However, the expert examination of the Cigarette Butt detected the attachment of saliva but was unable to identify the blood type. Taking account of all these points, the findings in the judgment in prior instance in this respect are apparently contrary to the reasonable inference rule.
(C) Looking at the photographs taken at the time of the inspection with all of the contents of the Ashtray being displayed, individual cigarette butts were shown at such a small size that it is difficult to distinguish them, but the Cigarette Butt can barely be identified from among them. These photographs show that except for the Cigarette Butt, there were only a few cigarette butts that apparently seem to have been wet. Supposing that these cigarette butts got wet due to the water that someone poured onto the Ashtray or the firefighting activities carried out to extinguish the fire, other cigarette butts must also have got wet. However, said photographs do not suggest that many other cigarette butts were wet as the Cigarette Butt was.
In addition, in response to the question of whether or not the contents of the Ashtray were wet, F, who picked up the contents, testified, "I don’t know. I don’t remember," and when testifying as such, F looked at the photographs of the bottom of the Ashtray taken at the time of the inspection with the contents of the Ashtray being taken out, and stated that the bottom is rusted but it does not seem to be wet.
(D) Since the Ashtray had not been cleaned for about eight months until the day of the incident, some of its contents were old to a considerable degree.
(E) In light of such state of the Cigarette Butt, and in particular, the fact that the Cigarette Butt changed color as it could have happened if the Cigarette Butt had been in a situation where it got completely wet or it had been exposed to wind and rain for a long period of time, it cannot possibly be presumed that the Cigarette Butt was the butt of the cigarette smoked by the accused on the day of the incident and then was discarded by him into the Ashtray.
(3) Concerning the possibility that the Cigarette Butt was the butt of the cigarette smoked by the accused before the day of the incident and then was discarded into the Ashtray
(A) It may be more or less possible that the accused happened to drop in at the Condominium on or before the day of the incident while he was searching for B's residence, and he discarded the Cigarette Butt into the Ashtray on such occasion. However, the accused argues that he had never visited the Condominium before, and as long as this argument is credible, such possibility should be denied.
(B) Concerning the possibility that late C took home the portable ashtray of the accused, and then discarded its contents into the Ashtray
This possibility has been alleged by the defense counsel and the accused since the first instance, and as the majority opinion points out, the findings of the judgment in prior instance and the judgment in first instance affirmed by the former which deny this possibility are not persuasive. I will indicate below the major points at issue concerning this possibility.
(a) It is obvious from the case records that the accused always carried a portable ashtray(s) which was jointly used by the accused, E and late C, and that late C often took home such potable ashtray(s) that was thus jointly used.
(b) A metal portable ashtray was found among the burnt objects left on the floor of the room of six (tatami) mats in size where the fire occurred, and there were two cigarette butts in this portable ashtray, one of which was a Marlboro Light that late C always smoked, whereas the other was a Short Hope Light that E always smoked. According to the case records, it was on February 20 that late C and E seem to have directly met last; therefore, it is found that the contents of said portable ashtray had not been discarded during the shortest period of 55 days following said day until the day of the incident.
(c) In the photographs taken at the time of the inspection, another portable ashtray that is a box type and colored in white and blue is seen in the box placed on the three-tier rack situated in the kitchen of B's residence, in which smoking-related tools were all stored together. The fact that the case records do not include any photograph of its contents suggests that there was no cigarette butt in this portable ashtray.
(d) According to E's testimony and the accused's statement, in addition to these portable ashtrays, there was also a portable ashtray made of vinyl in the accused's residence, which indicates the possibility that late C took home this portable ashtray.
(e) It is found that among other cigarette butts contained in the Ashtray, there were four cigarette butts that were of the same brand as the one late C usually smoked (Marlboro Light [written in golden letters]).
(f) It is of course possible, as indicated in the finding in the judgment in prior instance, that if a cigarette butt is discarded into an ashtray and the fire dies out on its own, the cigarette butt is left, after the fire as died out, in a state similar to the Cigarette Butt. On the other hand, a cigarette butt may possibly be in a similar state as the Cigarette Butt even in cases where, for example, a person puts a half-smoked cigarette on the desk or a similar place and while he/she concentrates on talking with somebody, the fire dies out at the edge of the desk, so the person puts only the cigarette butt into a portable ashtray. In addition, a cigarette butt may possibly be in such state as in this case when a person smokes a cigarette to near its filter, and then the remaining part of the cigarette that carries the fire fell off when he/she stubbed out the cigarette. Therefore, it cannot be found that the state of the Cigarette Butt contradicts the assumption that it was contained in a portable ashtray.
(g) As the majority opinion points out, despite the existence of the facts mentioned above and without fully examining these facts, the judgment in prior instance denied the possibility that the Cigarette Butt was discarded by late C into the Ashtray, as alleged by the defense counsel and the accused. In this respect, the holding of the judgment in prior instance cannot be affirmed.

2. Reports of sightings
The reports of sightings relating to the accused cited by the judgment in prior instance and the judgment in first instance affirmed by the former cannot be found to be directly relevant with the accused, but they are found to have only extremely weak relevance, and I should say that a reasonable doubt still exists before finding that the accused was wandering around the Condominium on the day of the incident, only by referring to these reports of sightings.
(1) There is no direct report of sighting
There is no reliable report of sighting that supports the fact that the accused was wandering around the Condominium on the day of the incident.
The judgment in prior instance and the judgment in first instance affirmed by the former made a finding that the accused had been around the Condominium since around 3:30 p.m. on the day of the incident, and then left the scene after the fire occurred. If the accused was truly wandering around the scene of the incident for such a long period of time, there must be reliable reports of sightings by several persons. In addition, as the accused was searching for B's residence in the residential area, his behavior was different from the behavior of ordinary passers-by, or in a way, he behaved in a conspicuous manner (e.g. walking while looking around restlessly, or asking passers-by about someone's address), and also in this respect, there must be reliable reports of sightings by people living in the neighborhood, etc. However, there is no such evidence in this case.
Furthermore, nowadays, surveillance cameras are installed here and there at convenience stores, pay parking lots and similar places, and in many criminal cases, the video recordings from these cameras are used as substantial evidence. In this case, however, no such evidence has been produced. Similarly, N-system cameras [translation note: cameras of the automated car license number reading system] are also installed here and there on expressways, national roads and other major roads, and the photographs of the car license numbers taken by these cameras are used as substantial evidence leading to identify the perpetrator in criminal cases. The court takes judicial notice of this through handling cases such as the Aum Shinrikyo cases. However, such evidence also has not been produced in this case.
(2) Concerning the circumstances where the parked car was witnessed
(A) The judgment in prior instance and the judgment in first instance affirmed by the former cited the fact that a car of the same type and the same color as the car that the accused was driving on the day of the incident (Honda Stream) was seen, by persons disinterested in this case, to be parked at the vacant space in the north of the G store on the day of the incident, around 3:40 p.m., 4:30 p.m., and 8:00 p.m., respectively, and based on this fact, both judgments made a finding that the same car was parked at said place throughout this period.
(B) However, none of these eyewitnesses saw the license number of the car that he/she witnessed, and it is a logical leap to make a finding that the same car was continuously parked at said place only based on that fact contained in the reports of sightings. Although, at the time, the Honda Stream had not been on the market for long since its release, this car had sold about 6,000 units in Osaka Prefecture alone. In view of this, the possibility that several cars of the same type were seen to be parked at the same place at intervals cannot be completely denied. Furthermore, based on the aforementioned fact about the reports of sightings, the judgment in first instance made a finding that said car was continuously parked since around 3:40 p.m. However, although this finding would be acceptable if the same person saw the car twice, those reports of sightings were given by different persons. In particular, there was a blank of about three and a half hours between the sighting at around 4:30 p.m. and the sighting at around 8:00 p.m., and even supposing that the same car was seen at these different points in time, this does not necessarily imply that the car was not moved from that place during that period.
(C) Supposing that a Honda Stream was continuously parked at the vacant space in the north of the G store on the day of the incident, during the period from around 3:40 p.m. until the time of the occurrence of the fire, this results in the finding that the car was conspicuous without doubt, because it is not usual that the same car is parked at said place continuously for such a long period of time. On the other hand, since tobacco and beverage vending machines that belong to the G store are lined up by said parking lot, it is inferred that even on holidays, a considerable number of people, including those living in the neighborhood, came to use the machines, and it is no wonder that a considerable number of people among those users report that they had seen that parked car. However, in this case, although it is presumed that investigation by questioning was carried out on a large scale, only four (in effect three) eyewitnesses reported sighting the car. This means that these four eyewitnesses only by chance saw a Honda Stream parked at the respective points in time, and in view of the circumstances of their sightings, I should say that it is a logical leap to go so far as to make a finding that the same car was continuously parked at said place.
(D) Concerning the fact that H did not notice a Honda Stream at said place when he left G's residence around 9:00 p.m.
H, the son-in-law of H, saw a Honda Stream parked at said parking lot when he visited G's residence around 3:40 p.m. on the day of the incident. However, when he was about to start his car from the front of G's residence to leave there around 9:00 p.m., H did not notice any car parked in said parking lot. As for the reason for this, H explains that at the time when leaving G's residence, he was not interested in the Honda Stream any more. However, said parking lot was positioned where H should have necessarily caught sight of it without paying any special attention when he started his car from the place where it was parked. And H said that when he noticed the Honda Stream at the time of visiting G's residence, he thought that since the car was parked within the premises owned by G, his wife's parent, an acquaintance of G might have been visiting there. Thus, the fact that a Honda Stream was parked there may have left an impression on H. If the same car was parked at the same place when H left G's residence, H would have ordinarily thought "Who does this driver think he is?" or something like that. However, H said that he did not even notice a car parked at said place at that time.
Taking all these into account, it is natural to presume that when H left G's residence, said Honda Stream was not parked at said place any longer.
H testified that he responded to the questioning by the police as he received an inquiry by phone from I, his wife's sister, "Have you ever seen a white Stream parked in front of my house?", although he does not remember exactly how many days before attending the on-site inspection (on May 5, 2002) it was that he experienced that questioning. This suggests that when H responded to the questioning by the police, the investigation did not aim to collect general information about any suspicious cars, but it focused on the white Stream that the accused was driving on the day of the incident.
(E) As explained above, it is inappropriate to go so far as to make a finding that the Honda Stream that was seen by four (in effect three) witnesses to be parked in front of G's residence was the same car, and what is more, it is presumed that said car was not parked at said place on the day of the incident around 9:00 p.m. This results in the presumption that said car was also not parked at said place around 9:45 p.m. on the day of the incident, when the setting of the fire occurred. In the end, there is still a doubt to be cleared up in order to find relevance between said car and this case.
In conclusion, the Honda Stream that was seen to be parked in front of G's residence is of the same type and the same color as the car that the accused was driving on the day of the incident, but there is no other evidence implying the relevance between said car and the accused.
(3) Concerning J's testimony
J testified that around 3:30 p.m. on the day of the incident, he/she saw someone who closely resembled the accused near the Condominium. The judgment in prior instance and the judgment in first instance affirmed by the former recognize this testimony as an important factor that leads to the presumption that the accused is the perpetrator.
However, J's testimony only meant to say that he/she was fiercely glared at by someone whom he/she walked past when walking while pushing a baby buggy near the stairs from the second to the first floor of the batting practice facility located near the Condominium, and that person resembled the accused. On that occasion, J, of course, did not have any conversation with that person, nor did he/she have any further contact at all with that person.
It is generally pointed out that the credibility of an eyewitness's testimony itself should be closely examined while taking account of the status of the eyewitness or the circumstances of his/her sighting. What J saw is nothing more than what he testified as mentioned above. Although the fact of having being "fiercely glared at" could have given a certain impression of the person in question to J, I should say that there is still a doubt about whether J's report of sighting can be evaluated as a report of sighting that is credible enough to go beyond that level and identify that person as the accused.
It was on the second floor of the batting practice facility where J saw someone who resembled the accused. That place is usually accessed only by users of or persons concerned with the batting practice facility, and considering that there is no evidence showing that B did batting practice as a hobby, there is little possibility that the accused went into that place.
In addition, there is a game arcade on the first floor of that facility, and the game machines installed there are for adults or people who have reached the junior high school age at the youngest. It is not a place where late C would come to play together with D.
Taking all of these points into account, I should say that there is still a reasonable doubt before regarding J's testimony as proof of the indirect fact that the accused was wandering around the Condominium on the day of the incident. (Supposing that there is reliable evidence showing that before or after the time mentioned in J's testimony, the accused was wandering around the scene of the incident, J's testimony could be recognized as proof of the indirect fact that the accused was continuously present in the vicinity of the scene of the incident during that time period, but it cannot be evaluated as more than that.)

3. Concerning the fact that the accused visited B's residence on the day of the incident
(1) Among the whole of evidence produced in this case, there is nothing directly proving that the accused visited B's residence on the day of the incident.
(2) According to the finding in the judgment in first instance, by around 3:30 p.m. on the day of the incident, the accused parked his car in the north of the G store and was wandering around the Condominium, whereas late C was seen by a person in the neighborhood to be on the veranda of the Condominium around 3:00 p.m. or 3:30 p.m. on the day of the incident. Based on this finding in the judgment in first instance and taking into consideration that there is no direct report of sighting of the accused other than that given by J as examined in 2(3) above, it can be presumed prima facie that there was no more report of sighting of the accused by a third party after J's sighting, because the accused visited B's residence relatively early.
Assuming so, there may be the possibility that during the period from 4:00 p.m. to 6:00 p.m., the estimated time of death of the victims of this case, the accused was meeting late C at B's residence, and it would not be surprising if late C, while meeting the accused, made a phone call or sent an email to B, E, or her mother, K. However, there is no such fact.
Supposing that late C was killed around 4:00 p.m., it would mean that the accused committed the killing extremely shortly after visiting late C. In light of the relationships between the accused and late C as found from the case records, it is significantly questionable whether there could have possibly been such conversations between them at all as to cause the accused to have the intent to kill in such a short period of time. This point is also related to the examination on the criminal motive discussed later. In addition, it is difficult to find a reasonable explanation about that long blank period after the killing of late C until the setting of the fire.
(3) The judgment in first instance affirmed by the judgment in prior instance denies the possibility of the commission of the crimes by a third person, on the grounds that late C, during the daytime, locked the door even when she was at home and she would not open the door except when a limited circle of acquaintances visited there.
However, while the condominium "L" where B and C had resided before moving to the Condominium had the structure where visitors cannot directly reach B's residence because of the electric locking system for its entrance door, the Condominium has the structure where outsiders can easily reach B's residence through open corridors.
If an outsider, having reached the private entrance of B's residence in the Condominium, pretends to be a "parcel delivery person," or other person to whom ordinary residents easily relax their wariness, such as a person from "an electric company, gas company, waterworks bureau, city office, etc.," ordinary housewives would possibly unlock the entrance door. In addition, as it is well known that robberies in the guise of "parcel delivery persons" sometimes occur, it is quite possible that a third person with whom late C was not acquainted entered B's residence through the front door. Even if late C was usually cautious about the locking and unlocking of the door, one cannot at all evaluate, only because of this fact, that any one of late C's acquaintances committed the crimes and this can be an indirect fact linking the accused and the crimes.

4. Concerning the fact that the accused switched off his mobile phone on the day of the incident
The judgment in prior instance and the judgment in first instance attach importance to the fact that the accused switched off his mobile phone on the day of the incident and he did not immediately reply to the email from E.
However, although this view might be reasonable if the accused visited late C's residence with a plan to commit the crime, this case is regarded as an impulsive crime case in the findings of both the judgment in prior instance and the judgment in first instance. Therefore, as the majority opinion points out, it is unimaginable that on such occasion, the accused switched off his mobile phone beforehand and visited late C's residence. In addition, on the day of the incident, the accused did not send or receive any email by his mobile phone from 9:00 a.m. until 5:00 p.m., and this suggests the possibility that his mobile phone was switched off during that period. In such case, how can said fact link the accused and the crimes? The logic presented in the judgment in prior instance and the judgment in first instance cannot draw an answer to this question.

5. Concerning the motive of the crimes
(1) The motive to kill late C
The judgment in prior instance held as follows: "As explained in the judgment in first instance, in light of the content of the memos and emails, etc. written by the accused, it is obvious that the accused was in love with C and was increasingly angry with B. Further, in light of the behavior of the accused, it can be presumed that the accused also harbored resentment toward C, thinking that C was unfaithful to him. Although these facts alone cannot prove that the accused had the intent to kill C, it should be said that there was a situation where it would not be surprising if the accused exploded in anger at C as triggered by some reasons such as conversations with C or her casual words and deeds."
However, even granting that the accused was truly in love with late C, which the accused denies, that had happened about half a year before the day of the incident, and nothing in the evidence of the case shows the fact that any trouble relating to the accused's love with late C had occurred after that time until the day of the incident. In addition, on March 14, after B and C moved to the Condominium, the accused made a phone call to late C to give advice about how to settle debts and late C wrote a memo in detail. It cannot be found that there was any hostile feeling, as found by the judgment in prior instance, between the accused and late C on the day of the incident. Furthermore, even if there was some misunderstanding between the accused and late C, in view of the previous relationships between them, it is too large a leap from the cause to the effect to consider that such misunderstanding caused the accused to strangle C to death with a dog leash.
The motive of the crime explained by the judgment in prior instance is nothing more than complete speculation.
(2) Concerning the motive to kill D
The judgment in prior instance states nothing about the motive to kill D, whereas the judgment in first instance makes a finding that "it is highly possible that the perpetrator killed D in an attempt to silence him, for fear that the killing of C would be uncovered."
However, this is nothing more than complete speculation made by the judgment in first instance based on no evidence. Would it possibly have happened that the accused killed the infant child, whom the accused had treated with affection and who was only one year and ten months old at that time, by giving the child a severe blow causing him to suffer a vertical fracture of the occipital bone that could damage the brain, and then throwing the child's body into the bathtub, merely in an attempt to silence him? (It is unclear from the case records whether or not the child had the faculty to speech to the level where he must be silenced). Nothing in the whole of evidence of the case implies that the accused was such a merciless person. It is true that there is no evidence in the case records that gives a vivid image as to how the accused and D interacted with each other in everyday life, that is, whether D was on close terms with the accused as his "grandpa," or how the accused loved D as his grandchild. However, the evidence of the case implies that the accused, by himself or with his wife, went out to eat with late C and D more than once, and there is no evidence implying that the accused treated D coldly on such occasions. Taking all of these points into account, there is a doubt that cannot be cleared up as to whether the accused would have possibly killed his loving grandchild only in an attempt to silence him, as found by the judgment in first instance.

6. Concerning the admissibility as evidence of the written confession of the accused (Exhibit Otsu No. 14)
The judgment in first instance acknowledged the admissibility of the written statement of the accused, dated August 17, 2002, in which the accused stated that he had entered the Condominium on the day of the incidence (this written statement shall hereinafter be referred to as the "Written Statement"), whereas the judgment in prior instance denied its admissibility, holding that there is a doubt about the voluntariness of this statement.
After this case is remanded, the admissibility of the Written Statement will be taken up for examination, and Justice NASU says that the court in charge of the remanded case should examine this issue more closely. I would like to give some comments on this point.
In my opinion, the finding in the judgment in prior instance is appropriate in that it denied the voluntariness and admissibility of the Written Statement. In this respect, by referring to, in addition to the relevant findings in the judgment in prior instance, [i] the testimony given before the court of first instance by M, who is an official of the detention house and is the accused's boss, and N, who is the accused's acquaintance, about the circumstances where they visited the accused in hospital, [ii] the records in the accused's clinical chart and the photographs of his physical state taken at the time when he was in hospital since August 18, and [iii] the written statement of the resident of the same condominium as the accused, who saw the accused coming home accompanied by O and other interrogation officers (Exhibit Ben No. 30), it is easily found that on the day when the Written Statement was prepared, the accused suffered a considerable amount of violence inflicted by O and others. Moreover, although the interrogation officers clearly knew, at the time of the interrogation, that the Cigarette Butt was contained in the Ashtray, they asked leading questions of the accused over and over again on the assumption that the accused's DNA pattern was detected from B's residence. In view of these facts, I should say that there is no room to acknowledge the admissibility of the Written Statement.

7. Concerning E's testimony that she saw bruises on the arm of the accused at a certain time after the incident, and that the denim shirt worn by the accused had wrinkles caused by wringing.
Before the court of first instance, the public prosecutor alleged that E's testimony mentioned above was an indirect fact proving that the accused is the perpetrator, whereas the judgment in first instance denied the credibility of said testimony.
I would give some comments on this because it may also come up as an issue to be discussed again in the trial of the remanded case.
I consider that the finding in the judgment in first instance is appropriate in that it denied the credibility in E's testimony mentioned above. In her testimony, the statement about the wrinkles on the denim shirt can be recognized as being relevant with the fact that D was found dead in the bathtub. However, supposing that the accused committed the killing, he would have taken care, because of his cautious personality, to roll up the sleeves of his shirt to keep them from getting wet if he needed to put his arms into water. Also, according to the expert examination result of D's corpse and the testimony of P who examined the corpse, D suffered an injury to his head that might have possibly caused a concussion to his brain. This clearly means that when throwing D into the bathtub to kill him, there was no need for the accused to put D's body into the bathtub by even dipping his arms in the water. Taking all of these points into account, I should say that E's testimony lacks credibility.

8. Concerning the fact that E is convinced that the accused is the perpetrator
E testified before the court of first instance and the court of prior instance that she was convinced that the accused is the perpetrator. Justice NASU says as follows in his opinion: "I consider it desirable that the court of the remanded case examine, as closely as possible, why E believed the accused to be the perpetrator and left home, and make a clear determination on this point. If the court, having carried out such examination, still cannot find that E had a misunderstanding or made an irrational judgment when she had the aforementioned conviction, which led her to leave home, and took actions as described above, it may be permissible for the court, in light of the purport of the principle of the free discretion of judges (Article 318 of the Code of Criminal Procedure), to determine that E had some reasons for having acted in that manner despite her position as a wife, who is usually supposed to defend her husband, and to use this as one of the materials for judging the existence of 'a fact that cannot be reasonably explained (or at least, that would be extremely difficult to explain) if the accused is not the perpetrator.' " Justice HORIGOME also says that E's testimony is of significant importance. However, I cannot agree with this view.
E's conviction that the accused is the perpetrator only reflects her mental status, or it only indicates that E fell into such mental status by inducing or deducing such conviction from various indirect facts that she took notice of, or by exerting her sixth sense. It is impermissible under the law of evidence to recognize such mental status (conviction) of a person who is not directly interested in the case, as an indirect fact for finding the criminal fact. What is of significance as indirect facts is only individual facts that E learned by herself. If the facts that E learned by herself are too far from the consequence to be recognized as indirect facts of the crimes, however accurately she knows such facts, these facts cannot be evaluated as indirect facts to prove the crimes. Nor can the fact that she left home based on said conviction be evaluated as an indirect fact linked with the fact that the accused is the perpetrator.
In E's testimony, only several points can be of significance as indirect facts of the crimes, including the one concerning the previous relationships between the accused and B and C, and the one concerning the bruises on the accused's arm and the wrinkles on his shirt discussed in 7 above. These points were fully examined in the judgment in first instance and the judgment in prior instance.
Since when late C lived together with her in the accused's residence, E had behaved in a manner of showing her jealousy at late C. It is easily imagined that after the incident, E was shown by the investigation authorities or B the emails sent by the accused to late C and other materials in which the accused's lingering love for late C was expressed, and in such case, it is presumed that these materials further intensified E's jealousy. In addition, in early May, the investigation authorities narrowed down the suspects to the accused, and carried out investigation by questioning about the reports of sightings of a Honda Stream, and on May 5, the accused had the first polygraph test. E also testified that while going through interrogation almost every day, she was told by the police officers that the accused was the perpetrator, or "the more closely we investigate, the more likely it seems that the accused committed the crimes, so persuade him [to admit his crimes]," and hearing this, she thought that the police had investigated to a great extent. This implies that E's conviction that "the accused is the perpetrator" might have been under the influence of being strongly induced by the police investigators.

9. Conclusion
As examined above, the judgment in first instance and the judgment in prior instance rejected the argument of the defense counsel and the accused that there was the possibility that the Cigarette Butt was discarded by late C from the portable astray possessed by her into the Ashtray, without inquiring into the cause why only the Cigarette Butt among the cigarette butts contained in the Ashtray seems to have once got wet and then dried despite its appearance in such state, or without examining any evidence as to whether or not the DNA pattern of the saliva of late C can be detected on the cigarette butt of "Marlboro Light [written in golden letters])" that may have possibly be smoked by late C. It is clear that these judgments are illegal due to insufficient examination to the extent that such illegality affects the judgments.
If, in the examination of evidence before the court of the remanded case, the DNA pattern of the saliva of late C can be detected on any of the cigarette butts contained in the Ashtray, it would be probable that the defense counsel's argument would be considered justifiable, whereas it would be less possible that the accused discarded the Cigarette Butt on the day of the incident, and in such case, the court should render a judgment of not guilty.
If the DNA pattern of the saliva of late C cannot be detected on any of the cigarette butts contained in the Ashtray, the accused would be strongly suspected of being the perpetrator based on the indirect facts cited by the judgment in first instance and the judgment in prior instance that affirms the former, but as examined above, it cannot be denied that there is a logical leap in the process of presuming the fact that the accused entered B's residence on the day of the incident and the fact that he committed the crimes, and I cannot clear up a reasonable doubt in order to find the accused to be the perpetrator.
I hope that the court of the remanded case will carry out deliberate examination.

The concurring opinion by Justice KONDO Takaharu is as follows.
I am in agreement with the majority opinion, but I would like to give some supplementary comments on the following points.
1. In this case, there is no direct evidence proving that the accused is the perpetrator, and in order to find the accused to be the perpetrator, there is no choice but to presume this by combining several indirect facts. This is the unique aspect of this case, and it all the more makes this case an extraordinarily difficult one.
(1) As summarized in the majority opinion, the judgment in first instance and the judgment in prior instance cite various facts as indirect facts for presuming the accused to be the perpetrator, but these cited facts naturally differ in terms of the degree of importance. As far as I understand, the facts that are particularly important among them are: [1] on the day following the day of the incident, 72 cigarette butts were collected from the Ashtray (which was installed on the half landing between the first and second floors of the west-side staircase of the Condominium in which B's residence is at Unit No. 306), and the DNA pattern in the cells in the saliva on one of these cigarette butts matched the DNA pattern of the blood of the accused; and [2] the accused made ambiguous, vague and unnatural statements and failed to give a reasonable explanation about his behavior on the day of the incident. As for Fact [1], if it is found that the cigarette butt in question was discarded on the day of the incident and that it is the accused who discarded that cigarette butt, it will be generally found that the accused reached at least said half landing within the Condominium on that day. Fact [2] suggests that the accused is concealing something important.
However, as for Fact [1], as explained by the majority opinion, there is still a reasonable doubt before finding that the cigarette butt in question was discarded by the accused on the day of the incident, and the court of first instance and the court of prior instance cannot be deemed to have carried out examination on this point sufficiently. Unless this fact is found, it is absolutely impossible to presume (find) that the accused entered the Condominium on the day of the incident even by combining all other indirect facts including Fact [2]. It is much more impermissible to further presume (find) that the accused committed the crimes.
(2) Furthermore, even if it can be found in the trial of the remanded case that the cigarette butt in question was discarded by the accused on the day of the incident, this is also nothing more than an indirect fact in relation to the crimes of this case, and there still exit many hurdles to overcome before presuming (finding) that the accused committed the crimes.
As a matter of course, if it can be presumed (found) that the accused entered the Condominium on the day of the incident, and the accused himself fails to give a reasonable explanation about his behavior on the day of the incident, it can not only be said that these facts, in combination with other indirect facts cited by the judgment in first instance and the judgment in prior instance, are not contradictory to the hypothesis that the accused is the perpetrator, it can further be said that they are well consistent with such hypothesis. In such case, it cannot be denied that the accused is under strong suspicion of having committed the crimes.
However, in order to prove that the crimes were committed by the accused, it is necessary to prove the fact that [A] the cigarette butt in question was discarded by the accused on the day of the incident, and also prove the facts that [B] the accused visited Unit No. 306 of the Condominium, [C] the accused entered inside Unit No. 306, and [D] the accused killed C and D and then started a fire. There is no direct evidence to prove Facts [B], [C], [D], and if Facts [A] though [D] cannot be presumed in this order, Fact [D] cannot be proved. Although Facts [A] through [C] seem to be highly probable, it is still questionable to consider that these facts can be presumed (found) in this order.
(3) Even if Fact [C] (the accused entered inside Unit No. 306) is presumed (found), it is not easy to further presume (find) the existence of Fact [D] based on that fact. According to the case records, it is clear that the accused had close relative relationships with C and D and had adequate affection toward them. Assuming that the accused went so far as to commit the crimes, there must be a concrete grounding for such assumption (motive) to a considerable degree. Indeed, as found by the court of prior instance, there was an emotional conflict between the accused and C, which was seen in the facts such as that the accused had had sexual interest in C and had shown it in his behavior, and that the accused harbored resentment toward C who appeared to follow B who continued to be unfaithful to the accused. However, there may be a large leap in presuming, based on these facts, that the accused, who had lived an ordinary social life as a police officer and prison officer, went so far as to kill people, although triggered by a fit of rage, and even killed the one-year-old child whom he had treated with affection as his grandchild. In this respect, I agree with the points noted by Justice FUJITA and Justice TAHARA in their respective concurring opinions.
(4) Other various indirect facts that the court of prior instance used as part of its grounding for finding the commission of the crimes by the accused, that is, [1] a car of the same type and the same color as the car that the accused used at that time was parked [near the Condominium], [2] someone who closely resembled the accused was seen at the batting practice facility [located near the Condominium], and [3] the mobile phone of the accused had been switched off [on the day of the incident], cannot be very substantial evidence for finding the accused's commission of the crimes. This is also pointed out by Justice FUJITA and Justice TAHARA in their respective concurring opinions.

2. To sum up the above, not only when it cannot be found that the cigarette butt in question was discarded by the accused on the day of the incident, but also even when such a finding can be made, one must go through many steps of making a presumption before finding that the accused committed the crimes, and I cannot easily agree with the conclusion that such finding has been established beyond a reasonable doubt. Of course, it cannot be denied that the accused is under strong suspicion of having committed the crimes, as mentioned above. However, when there is no choice but to make a finding that the accused committed the crimes by accumulating indirect facts, as it happens in this case, the court should consider, as ruled by the majority opinion, that there must be a "fact that cannot be reasonably explained (or at least, that would be extremely difficult to explain) if the accused is not the perpetrator"; otherwise, I fear that the court would go beyond the line that must not be crossed in criminal trial. In this case, it cannot be said that the existence of such fact has been established, and therefore I consider that it cannot be said that the possibility that the crimes were committed by someone other than the accused has been denied beyond a reasonable doubt.
Nevertheless, I believe that it is significant to further examine whether the cigarette butt in question was discarded by the accused on the day of the incident, and in light of the magnitude of the crimes, it is also significant to provide both parties with the opportunity to make additional proof from the viewpoint described above. For this reason, I consider it appropriate for this court to remand this case to the court of first instance, rather than rendering a judgment of not guilty by itself. In this respect, I am in agreement with the majority opinion.

The opinion by Justice NASU Kohei is as follows.
I agree with the majority opinion for its conclusion (the main text of the judgment). I also agree with and support, among the reasons attached thereto, the reason to the effect that, as a criterion for judging whether or not "proof beyond a reasonable doubt" has been established, in cases where there is no direct evidence and the finding of guilt should be made based only on circumstantial evidence, the indirect facts found based on circumstantial evidence must include a "fact that cannot be reasonably explained (or at least, that would be extremely difficult to explain) if the accused is not the perpetrator." However, I cannot agree with some of the individual and specific points at issue that the majority opinion cited, in the course of applying this criterion, as the grounds for determining the judgment in first instance and the judgment in prior instance to be illegal for insufficient examination. I also identify other points which the majority opinion does not mention but which I think must not be ignored when judging whether or not there is a "fact that cannot be reasonably explained (or at least, that would be extremely difficult to explain) if the accused is not the perpetrator." Therefore, I would like to present my own view, focusing on the points at issues for which I disagree with the majority opinion or which are not discussed in the majority opinion.

1. Whether or not the accused entered the Condominium, and the finding as to whether or not he is the perpetrator
(1) Is it appropriate to presume that the accused went to the Condominium on the day of the incident, by referring to the fact that the DNA pattern in the saliva on the Cigarette Butt, which was left in the Ashtray, matched the DNA pattern of the blood of the accused? This is the crucial point at issue in this case. As pointed out by the majority opinion, even taking into consideration several indirect facts found in the judgment in first instance and the judgment in prior instance (e.g. the fact implying that the accused kept his car parked near the Condominium for a long period of time on the day of the incident, and the fact that someone who closely resembled the accused was seen at the batting practice facility located near the Condominium), there still remain issues such as the possibility that the Cigarette Butt was discarded by the victim or another person from a portable ashtray. Therefore, it is unreasonable to make a presumption as the one made by the court of first instance and the court of prior instance that affirmed the former. The court must not omit to inquire into the cause of the color change of the Cigarette Butt collected from the Ashtray that was installed on the staircase in the Condominium (including whether or not it is probable that the Cigarette Butt got wet due to such causes as the spraying of water in firefighting on the day of the incident, until the Cigarette Butt was collected), and also must not omit to carry out a DNA test of the saliva that could have been attached on other cigarette butts and compare the DNA patterns detected in this test and the DNA patterns of the victim and any other interested persons around the accused. I think that it is necessary to further examine these points.
(2) On the other hand, I disagree with the holding in the majority opinion that "even granted that it is found that the accused went to the Condominium on the day of the incident, it is still questionable whether one can go so far as to say that in combination with other indirect facts found, there is a fact that cannot be reasonably explained (or at least, that would be extremely difficult to explain) if the accused is not the perpetrator."
In the first place, it cannot be denied that the accused had personal relationships in which it would not be surprising if he committed the crimes. In addition to this, also taking into account the existence of indirect facts---e.g. the fact that the accused cannot give a reasonable explanation about his unnatural behavior concerning his conversations with his wife, E, on the mobile phone or his behavior on the day of the incident, and the fact that it cannot be denied, in light of factors such as the circumstances of the scene of the crimes and the modes of the crimes employed, that it is possible that the crimes were committed by someone closely related with the victims---, the suspicion that the accused is the perpetrator cannot be dismissed. In addition to such status of evidence, assuming that, as a result of the examination concerning the Cigarette Butt carried out by the court in charge of the remanded case, it can be found, based on evidence, that the accused went to the Condominium on the day of the incident, the suspicion that the accused is the perpetrator would be far more strong. In such case, now that the existence of an objective fact that is incompatible with the fact that the accused has been strongly denying his entry to the Condominium in the first instance and the prior instance, that is, the existence of the fact of his entry to the Condominium, is proved, it should inevitably be acknowledged that there exists "a fact that cannot be reasonably explained if the accused is not the perpetrator." Therefore, unless the accused presents any special and persuasive reasons for why he has been denying his entry to the Condominium contrary to the true fact, it may be justifiable to acknowledge that "proof beyond a reasonable doubt" has been established with regard to the fact that the accused is the perpetrator.

2. How the court should react if it cannot be presumed, based on indirect facts, that the accused entered the Condominium
The problem rather exists beyond the discussion indicated in 1 above. If, even after the examination in the trial of the remanded case, the court still cannot recognize the existence of any new evidence proving that the accused discarded the Cigarette Butt into the Ashtray on the day of the incident, is it permissible for the court to still make a finding that the accused entered the Condominium on the day of the incident so as to find him to be guilty, by re-examining other evidence or indirect facts that currently exist? In this respect, the majority opinion seems to be negative, but I consider that there is still room for approving this approach, for the following reasons.
(1) The judgment in first instance found indirect facts based on the several pieces of circumstantial evidence as summarized by the majority opinion in 2(1)(A) to (E), and by combining these indirect facts, made a finding that the accused entered the Condominium on that day. In addition to applying this approach, the judgment in first instance also made a reference to the direct evidence obtained through a different route, Exhibit Otsu No. 14 (the written statement of the accused, prepared by the police officers and signed by and sealed with the thumbprint of the accused as of August 17, 2002), and used this written statement as corroborating evidence to affirm that the accused is the perpetrator, recognizing its voluntariness and credibility (Judgment in first instance, page 63).
This written statement includes the accused's remark: "On April 14 this year, worrying this and that about B, I searched for B in the Sakai area in the morning, and then around 2:00 p.m., I also left my apartment to search for B. And, I don't remember exactly what time it was, but I think, at some time before 5:00 p.m., I entered Q in order to search for B and C. This condominium is a four-story building, and I entered the premises of the condominium from the road, went through the nearby entrance, and climbed the stairs." This written statement is an extremely brief one, and it does not mean to directly admit the commission of the crimes.
However, the accused himself admits the facts that around past 2:00 p.m. on the day of the incident, he left his residence and headed for Hirano-ku by his car, a Honda Stream, and then acted within or around that district until around 10:00 p.m., and that he did so in order to search for B or B's residence. The accused does not challenge this point. There is also a fact that in the investigation stage, the accused voluntarily and clearly told the investigation officers that on the day of the incident, he parked his Honda Stream near the Condominium, and he maintained this statement. The judgment in first instance can be construed to have recognized the voluntariness and credibility of this written confession, while taking into account these pieces of circumstantial evidence. Even though there is still a problem as to whether or not violence or similar forcible measures were used when interrogating the accused, as described below, I think I cannot go so far as to say that the holdings in the judgment in first instance are unreasonable in light of the rule of logic or the reasonable inference rule.
(2) It is not necessarily clear why the judgment in first instance refrained from using said written statement as direct proof for finding the fact of the accused's entry into the Condominium, but first presumed that the accused is the perpetrator by taking steps to find indirect facts based on circumstantial evidence, as described above, and then concluded that said written statement "further corroborates" the determination made based on this presumption. However, it may not be incomprehensible that the judgment in first instance took the approach to, while avoiding making a direct finding based on the written statement which is questionable in terms of voluntariness, first find indirect facts based on circumstantial evidence, then make a finding that the accused is the perpetrator by accumulating indirect facts, and finally use said written statement as corroborating evidence. Assuming so, it may be possible to evaluate such approach to be of some positive significance in that through this approach, the court can carry out trial prudently in this kind of case which is liable to be criticized as attaching too much importance to the suspect's confession. In any case, it is obvious that Exhibit Otsu No. 14 itself is not in nature inferior in quality to other evidence, with the exception that there remains a fundamental question as to whether or not it can be recognized as a voluntary and credible statement.
Therefore, after this case is remanded, even if the court still cannot recognize the existence of any new evidence proving that the accused discarded the Cigarette Butt into the Ashtray on the day of the incident, I think it is not impossible in procedural terms for the court to reconsider the status of Exhibit Otsu No. 14, which is direct evidence, and then make findings of fact in line with the content of the statement. (Needless to say, as a prerequisite for taking this approach, it is necessary to strictly re-examine whether or not violence or similar forcible measures were used when interrogating the accused, as discussed below, so as to confirm the voluntariness and credibility of that exhibit.)

3. Whether or not violence, etc. was used when preparing Exhibit Otsu No. 14
Exhibit Otsu No. 14 was prepared in the process of investigation on a voluntary basis. In the trial, the accused explained the circumstances where it was prepared, stating, e.g. "I suffered violence, beating and kicking, from three police officers for over ten hours. They forced me to double over, being seated on the chair and holding my own ankles, covered my head with a vinyl bag so that I couldn’t breathe, and tied up my hands behind my back with a judo belt." In response, the police officers who took charge of interrogation of the accused completely deny their use of violence against him. With regard to this issue, the judgment in first instance rejected the accused's argument, holding that "the accused's statement on the situation of his interrogation cannot be taken at face value" while acknowledging the credibility of the police officers' testimony. On the other hand, the judgment in prior instance made a determination contrary to the judgment in first instance, holding as follows: "We cannot find without doubt that there was violence as argued by the accused, but we also have hesitation to find without doubt that the accused made the statement voluntarily. The court of first instance violated Article 322, paragraph (1) of the Code of Criminal Procedure in that it acknowledged the admissibility of Exhibit Otsu No. 14 and examined it as evidence." (The judgment in prior instance also held that even without this evidence, by combining other pieces of evidence, there was no probability that the judgment in first instance that determines the accused to be the perpetrator would vary.)
It is a serious problem that the police conducted interrogation for over ten hours in the stage of investigation on a voluntary basis, and in addition to that, if it is true that violence or similar forcible and illegal means of investigation was used as argued by the accused (such conduct constitutes a crime by itself), this would not only affect the determination on the voluntariness and credibility of Exhibit Otsu No. 14, but it would also strongly shake the reliability of the investigation conducted by the officers in charge, which would result in unavoidably affecting the reliability of the procedures for collecting the Cigarette Butt and requesting its expert examination, and thus of the results of the DNA tests. This would necessarily raise a strong doubt about the appropriateness of the determination of the court of prior instance ruling that "by combining other pieces of evidence, there was no probability that the judgment in first instance that determines the accused to be the perpetrator would vary."
On the other hand, supposing that the fundamental part of the accused's argument on the aforementioned point contains a falsehood or significant exaggeration, this would seriously shake the credibility of his statement, and finally the very existence of such false or exaggerated statement might be regarded as a "fact that cannot be reasonably explained if the accused is not the perpetrator," or at least part of such fact, and used as the grounding for finding guilt.
The judgment in prior instance does not make an in-depth determination on whether or not there was violence, but just handled the issue by narrowing it to the issue regarding the credibility of Exhibit Otsu No. 14. However, considering that which, of the accused or the investigation officers, is the one who told a lie, is an important point at issue that significantly affects the judgment of this case as a whole as explained above, I believe that it is necessary for the court of the remanded case to carry out more in-depth examination on this point.

4. Position of the wife's testimony
E, the wife of the accused, at the end of May, about one and a half months after the incident, left home and started to live separately from the accused, with a deepened conviction that "the accused is the perpetrator." She gave detailed testimony in the trial about why she was convinced so, and although individual topics that she mentioned are nothing more than trivial incidents that happened between a married couple, the accumulation thereof, as a whole, indicate relatively in detail how she was convinced that the accused was the perpetrator. The wife came to have such a severe view about her husband, although they had not been on bad terms until then, and maintained that view throughout the trial and gave testimony in line with it---this fact in general has an extremely important meaning. It is not difficult to imagine that E's testimony might have had a subtle influence on the court of first instance when it determined the accused to be the perpetrator.
The court of first instance, in its written judgment, used E's testimony for finding indirect facts regarding the motive of the crime, including whether or not the accused, before the incident occurred, had actually dared to demand C, the victim of the crime, to have sexual intercourse with him, or hug her, kiss her, etc., and whether or not the accused was "in love" with C, and for finding indirect facts regarding whether or not the accused's behavior before and after the incident involved some unnatural or suspicious aspects. However, the court did not expatiate why E was convinced that the accused, her husband, was the perpetrator, and then left home, and whether her conviction and behavior as such were rational. (Basically, stating such delicate points in the written judgment is technically difficult and it is not a requirement under the Code of Criminal Procedure). However, in view of the situation of this case where the parties fiercely dispute over whether or not the accused is the perpetrator and the opinions of the justices of this court are divided on this point, I consider it desirable that the court of the remanded case examine, as closely as possible, why E believed the accused to be the perpetrator and left home, and make a clear determination on this point. If the court, having carried out such examination, still cannot find that E had a misunderstanding or made an irrational judgment when she had the aforementioned conviction, which led her to leave home, and took actions as described above, it may be permissible for the court, in light of the purport of the principle of the free discretion of judges (Article 318 of the Code of Criminal Procedure), to determine that E had some reasons for having acted in that manner despite her position as a wife, who is usually supposed to defend her husband, and to use this as one of the materials for judging the existence of "a fact that cannot be reasonably explained (or at least, that would be extremely difficult to explain) if the accused is not the perpetrator."

5. Necessity to remand the case by reason of "insufficient examination"
(1) This case is a difficult one in that there is no direct evidence proving the accused's commission of the crimes, and even based on the accumulated circumstantial evidence, opinions are divided among the justices of this court as to whether proof beyond a "reasonable doubt" is established for finding the accused to be the perpetrator. Even excluding me, more than one justice considers that a "reasonable doubt" still remains. In such situation, even in light of the judicial precedent of this court (the decision of the First Petty Bench of the Supreme Court of October 16, 2007, cited by the majority opinion), there is no choice but to determine that proof beyond a reasonable doubt has not yet been established, and I consider it reasonable to agree with the majority opinion in that it quashes the judgment in prior instance.
(2) The question is whether or not it is necessary to further quash the judgment in first instance, which was rendered by the court of first instance that is in charge of fact finding. Although it is supposed that the judges of the court of first instance made determination at their own discretion by directly seeing and hearing the statements of the accused and many witnesses in the trial, the process of making such determination is not described in every particular in the written judgment, and law does not require as much as that. In this respect, there is a limit to the scope of findings of fact made by the court of first instance in which this final appellate court may intervene. Furthermore, even after this case is remanded to the court of first instance, the judges who previously accessed the direct statements of the accused and witnesses will not be allowed to participate in the trial proceedings, and it cannot be expected that the statements of the witnesses, etc. previously obtained can be reconstructed at court, and in the end, the court will have to concentrate on closely re-examining the existing case records. In that case, if the judgment in first instance contains any defect pointed out by the majority opinion, the court of prior instance would also be competent to correct or make up for such defect and make an appropriate determination, and I think this would suffice. On the other hand, it cannot be denied that the court of prior instance failed to sufficiently examine whether or not the accused entered the Condominium on the day of the incident although this is the core point at issue in this case, and in light of the magnitude of this case, I consider the conclusion of the majority opinion, that not only the judgment in prior instance but the judgment in first instance should also be quashed, to be understandable in some aspects. I admit that this is an extremely difficult decision to make, but I would agree with the majority opinion, taking into account the benefit of the related parties to receive a judgment through the multilevel appeal process and hoping that the court of first instance will make determination far more deliberately.

The dissenting opinion by Justice HORIGOME Yukio is as follows.
I cannot agree with the majority opinion that holds that the judgment in first instance and the judgment in prior instance contain errors in fact finding or involve insufficient examination. The grounds for my view are as follows.
I. Concerning the Cigarette Butt
1. It is obvious that the Cigarette Butt was seized from inside the ashtray installed on the staircase of the Condominium and the DNA pattern of the mucosal cells on this cigarette butt matched the DNA pattern of the accused. The majority opinion concludes that since some cigarette butts of the accused remained in a portable ashtray at the victim's residence, the possibility cannot be denied that the victim C discarded those cigarette butts into the ashtray on the staircase, and therefore it cannot be presumed, based on said fact, that the accused entered the Condominium where the victims resided. As the major grounding for this holding, the majority opinion points out the color change of the Cigarette Butt. In the section below, I will examine whether or not the holding of the majority opinion is appropriate in light of evidence.

2. In the photograph taken at the time of the inspection conducted from April 15, the day following the day of the incident (Photograph No. 1402 attached to the inspection report dated July 2, 2002, prepared by the judicial police officers; hereinafter referred to as "Photograph A"), the Cigarette Butt is the seventh one from the bottom in the right row of cigarette butts whose filters are white. In the photograph taken at the time of the expert examination of saliva commenced on June 3 (Photograph 1 attached to the written expert opinion, prepared by the technical officer of the Osaka Prefectural Police; hereinafter referred to as "Photograph B"), the cigarette butt showing the same side as in Photograph A is the upper one.
Comparing Photograph A and Photograph B, the color of the cigarette butt in Photograph B (its filter) obviously turned darker, and this difference is conspicuous (this would be more obviously seen by enlarging Photograph A in which the cigarette butts are shown at a small size).
There can be a contrary view that the Cigarette Butt in Photograph A looks whiter because of the condition of lighting, but this is an unreasonable view because Photograph A also shows cigarette butts whose color turned darker than the Cigarette Butt.

3. Since the Cigarette Butt was kept in custody by the investigation authorities after being seized, it is unimaginable that some substance that could cause its color to change was applied to it during the period of custody (and there is no evidence of such fact). Although the majority opinion makes no mention, there can be no possible reason for the conspicuous difference in terms of the color change between the cigarette butt in Photograph A and the cigarette butt in Photograph B, other than that it happened due to the passage of time.

4. First, suppose that the Cigarette Butt was discarded by C. As it was around February 20, 2002, that C visited the accused's residence last, it should have been on or before February 20, 2002, that the accused smoked the cigarette that ended up as the Cigarette Butt, and this means that at least a little less than two months had passed after the accused smoked that cigarette until Photograph A was taken. That is, this period of time is longer than the interval of time between when Photograph A was taken and when Photograph B was taken. It is unnatural indeed that the Cigarette Butt changed color only to the level as shown in Photograph A, although at least a little less two months had passed since the accused smoked it.

5(1) The next question is which is the cause of the color change of the Cigarette Butt, either being soaked with water, etc. or being exposed to wind and rain for a considerable period of time.
(2) Supposing that, after the Cigarette Butt was discarded into the ashtray, water, etc. was poured into the ashtray or the Cigarette Butt was exposed to wind and rain, it is obvious that such events would have affected other cigarette butts contained in the ashtray. However, in Photograph A, the other cigarette butts look somewhat white overall, and there is no evidence showing that water, etc. was poured into the ashtray or that these cigarette butts were exposed to wind and rain.
(3) Furthermore, the police officer testified that he/she did not remember whether the Ashtray was wet at the time of the inspection, and in Photograph A, etc., the cigarette butts as a whole look dry. If it is supposed that the Cigarette Butt had actually been soaked with water, etc. or exposed to wind and rain, it is natural to infer that other cigarette butts had also already changed color by the time when Photograph A was taken.
(4) Consequently, if it happened that the Cigarette Butt was soaked with water, etc., it would be consistent with the conditions of Photograph A, etc., to infer that this was done by the person who smoked the cigarette in question for the purpose of putting it out, rather than inferring that the Cigarette Butt was soaked with water, etc. or exposed to wind and rain after being discarded.

6. It is natural to consider that the reason why the Cigarette Butt changed color as conspicuously as in the state shown in Photograph B is because the fire of the cigarette was extinguished by putting it in water, etc., then the ingredients of the cigarette penetrated into its filter, and finally the filter was dried and the color of its paper changed as time passed.

7. As examined above, based on the articles of evidence concerning the conditions of the color change of the Cigarette Butt, it is appropriate to consider that the cigarette that ended up as the Cigarette Butt had been smoked at a time shortly before when Photograph A was taken, and it is unreasonable to consider the possibility that it had been smoked about a little less than two months before when Photograph A was taken.

8. A cigarette butt put into a portable ashtray is usually covered with ash, and actually, the cigarette butts in the portable ashtray that was found in the victim's residence are covered with ash. In addition, if cigarette butts are carried along in a vinyl portable ashtray, they would be flattened when, for example, the user closes the snap. However, the Cigarette Butt does not appear to be covered with ash or flattened. These facts should be construed to be corroborating that the Cigarette Butt, after the cigarette was smoked, was discarded directly into the ashtray installed on the staircase.

9. In consequence, the majority opinion errs in evaluating objective evidence in that it ruled, on the grounds of the color change of the Cigarette Butt, that the possibility cannot be denied that the Cigarette Butt was discarded from a portable ashtray, and therefore I cannot agree with it.

II. Concerning whether or not the accused is the perpetrator
1. Concerning the fact that the accused entered the Condominium on the day of the incident
(1) As explained in I above, the cigarette that ended up as the Cigarette Butt had been smoked at a time shortly before when Photograph A was taken, and then discarded on the staircase of the Condominium. It might otherwise be presumed if the accused explains that he had entered the Condominium before the incident, but since the accused argues in this case that he has never entered the Condominium, it can be presumed that it was on the day of the incident that the accused smoked the cigarette that ended up as the Cigarette Butt. The judgment in first instance and the judgment in prior instance are appropriate for their conclusion finding that the cigarette that ended up as the Cigarette Butt was smoked by the accused on the day of the incident.
(2) It is found that on the day of the incident, during the period from around 3:40 p.m. to around 8:00 p.m., a car of the same type and the same color as the car that the accused used at that time was parked at a point about 100 meters north of the Condominium. The accused himself admitted in the investigation stage that he parked his car at said point on the day of the incident. It is also found that on the day of the incident, during the period from past 3:00 p.m. until around 3:30 p.m., someone who closely resembled the accused was seen at the batting practice facility located about 80 meters north-northeast of the Condominium. From these findings, it can be fully recognized that the accused was present near the Condominium on the day of the incident, and this fact should be regarded as corroborating the fact mentioned in (1) above.

2. Concerning the extremely unnatural and false aspects of the accused's statements regarding his behavior at the time of the crimes
(1) As a suspected or accused person is granted by law the right of silence, it is impermissible to make a determination unfavorable to the accused on the grounds that the accused remains silent about his/her alibi. Also in general terms, as the burden of proof of a crime is imposed on the public prosecutor, it is inappropriate to make a determination unfavorable to the accused on the grounds that the accused does not allege or prove his/her alibi.
However, this does not mean that the accused is granted the right to escape punishment for his/her crime by making a false statement. Therefore, in the case where the accused waives his/her right of silence and makes a statement, and such statement is found to be false, as a matter of course, this leads to making a determination unfavorable to the accused.
(2) Under the circumstances where, shortly after the occurrence of the crime, the accused him/herself fully recognizes that his/her alibi is at issue and he/she can necessarily make some reliable statement on his/her alibi if he/she is not the perpetrator, and if he/she purposefully makes a false statement on his/her alibi, it may be a reasonable inference rule generally acceptable in society that the accused is strongly suspected of having been present at the scene of the crime.
(3) On April 16, two days after the incident, the accused was questioned by the police officers about his alibi and therefore he fully recognized that his alibi was at issue, and on that day, he told his wife, "I don’t remember a thing that happened on April 14. I have no alibi."
The accused prepared a "certificate of findings of fact" about B's behavior, and he also prepared documents in which he expressed his allegations and submitted them to the court of first instance, the court of prior instance, and this court. This clearly suggests that the accused is an extremely methodical person and has a nature to try to secure accuracy of such documents.
(4) However, the accused's statements about his alibi are extremely ambiguous and unstable, and they also contain contradictions and changes; in short, the accused has stated nothing definite. In the trial, the accused stated that he was searching around for B's residence in Hirano-ku and got out of his car at five or six spots to check the appearance, etc. of the buildings. To the contrary, when inspecting these spots while accompanying the accused, the investigation authorities were unable to identify any of them. Thus, the accused's statements lack specificity to the extent that he might have intended so.
Consequently, I should say that the accused's statements on his alibi are extremely unnatural and also false.
(5) Indeed, it sometimes happens that when a person is asked about his/her alibi with regard to a crime that he/she has nothing to do with after a considerable time has passed since the incident, such person's statement about his/her alibi would be ambiguous. However, this is not the situation of this case.
Also, there may be a case where a person who is suspected of a crime gives a false alibi for the purpose of protecting other more important interests. However, in this case, the accused is suspected of killing two people, and there can be no more important interest to be concealed and protected.
(6) Consequently, it is obvious that the accused concealed the fact about where he was at the time of the crimes, and such fact that he thus concealed can be presumed to be exactly the fact that he was present at the scene of the crimes at the time of the crimes.

3. Concerning the motive of the crimes
(1) The judgment in first instance held that it can be fully found, based on evidence, that the accused dared to demand C to have sexual intercourse with him, hug her, kiss her, etc., and also taking into consideration what is written in the accused's pocket notebook, it can be found that the accused was in love with C around October 2001. This finding is fully affirmable based on evidence.
C is B's wife, and B, although he is the accused's adopted child, is regarded as the accused's son in society. The accused's behavior of demanding his son's wife to have sexual intercourse with him, hug her, kiss her, etc., is itself extremely abnormal, and therefore, in terms of sexual matters, the accused should be deemed to have a nature of behaving abnormally.
(2) It is true that there is no evidence showing that the accused behaved in such manner as described above after October 2001, but this is because C refused the approach of the accused, and after leaving the accused's residence without telling him and returning to B, she started to align herself with B and avoid contact with the accused.
(3) It is fully presumable that the accused's love for C revived after meeting her on February 19 and 20, 2002, and starting to have contact with her. In his written statement made before the judicial police officers, the accused mentioned, "C told me something like, B rarely sleeps with her, so I gave her some advice." This also clearly suggests that the accused had sexual interest in C.
(4) It is fully imaginable that on the day of the incident, the accused's wife went out for work, so he went to C's residence, partly because of his sexual interest in her. Since such behavior, for the accused, can be unfaithful behavior toward his wife, it is natural that the accused kept his mobile phone switched off from the time when he intended to meet C. Assuming so, it would be the most natural presumption that the accused switched off his mobile phone with the intention to meet C. In light of the fact that the accused switched on his mobile phone again shortly after the commission of the crimes was finished, it is inappropriate to account for this as a mere accidental coincidence.
The majority opinion cannot give an account for why the accused switched off his mobile phone.
(5) It is not unnatural to presume that the accused, after meeting C, exploded in anger at C as triggered by some reasons such as conversations with C or her casual words and deeds, and finally killed her.
(6) Thus, it should be said that although the accused killed C accidentally, he had a plan in advance to meet her. It is sufficiently possible to presume that the accused switched off his mobile phone, not for the purpose of killing C but for the purpose of meeting her.

4. Concerning the view that the crimes were committed by someone outside
(1) C was of a cautious nature and usually locked the door, wary of creditors. Therefore, in view of the circumstances of the case where the lock does not seem to have been forced open, it seems that C unlocked the door from inside.
Logically construed, the person for whom C, who was very cautious, voluntarily unlocked the door may be, in addition to C's acquaintance, a person who was disguised as a "parcel delivery person" or person whose status would make residents easily relax their wariness (e.g. a person of an electric company, gas company, or waterworks bureau).
(2) Looking at the conditions of the scene of the incident, C wore only underwear, with her jeans taken off (implying a sexual crime), the end of the harness with the lead was inserted into a drawer (implying suicide), and the drawers and the door of the microwave oven, etc. were open (implying someone searching for any valuables). However, there is no other evidence implying that C was victimized for a sexual crime or for robbery or any other theft of property. Furthermore, it is unimaginable that a person outside who was not acquainted with C might have arranged anything except for camouflaging suicide.
(3) In this case, the perpetrator made several contradictory arrangements, which suggest his/her state of panic immediately after committing the crimes.
(4) Looking at the scene of the crimes as above, it is not inappropriate to presume that the person for whom C unlocked the door was someone acquainted with C.

5. Concerning the accused's behavior immediately after the incident
(1) The accused's behavior after he learned of the incident on the following day
The accused said that he made a phone call to his brother on April 15, 2002, 7:10 to 7:30 a.m. and learned of the incident. The accused left his workplace around 8:20 a.m. but subsequently did not go to any particular place, and having received a phone call from his brother around 10:00 a.m., he headed for his brother's residence and arrived there around past 11:00 a.m., left his brother's residence around 0:30 p.m., arrived at his own residence where his wife E was present at 3:00 p.m. to 3:30 p.m. (usually taking 40 to 60 minutes), and then talked to E.
Seeing such course of his actions, there are blanks of one and a half to two hours between when he left his workplace and when he received a phone call from his brother, and between when he left his brother's residence and when he returned to his own residence, respectively. About these blank periods, the accused explained, "I was upset, so I parked my car at the roadside and calmed myself down," "I was thinking about how I should explain things to E," or the like. In light of the accused's behavior until before the incident and his attitude at his workplace, etc., it is questionable whether the accused is a person who would become upset in such a manner, and what is more, since he himself did not know the details of the situation, as he argues, he would have taken such actions as first notifying E and going to the police with her. I should say that the behavior of the accused, who did not take such actions, is extremely unnatural.
(2) The wound on the accused's finger
The accused had a wound on his finger immediately after the incident. The accused himself admitted this, and explained that on the day following the day of the incident, he had had his finger cut by scissors that he kept in a drawer at his workplace, but this sounds like an excuse about the wound that he suffered on the occasion of the incident. Also with regard to how he suffered the wound, there is a slight inconsistency between what E heard from him and what he himself explained.
(3) Excessive emphasis by the accused on his lack of alibi
At the vigil for the victims held on April 16, two days after the incident (or the day following the day (April 15) when the accused argues to have learned of the incident), the accused stated in particular that he was suspected because he had no alibi. The issue of alibi might have been in his mind, but if he actually moved here and there within the city on the day of the incident, his alibi could have possibly been proved in the future, and it is unnatural that he, at that time, definitely emphasized his lack of alibi.

6. Concerning the testimony of the accused's wife
E, the accused's wife, said that the accused greatly changed immediately after the incident and he appeared to be tensed, and then she became more convinced that the accused committed the crimes. E gave detailed testimony about why she was so convinced, and as pointed out by Justice NASU in his opinion, although individual topics that she mentioned are nothing more than trivial incidents that happened between a married couple, the accumulation thereof, as a whole, convinced E that the accused was the perpetrator, and such explanation given by her is specific and persuasive. As E has been with the accused as his wife for 20 years, her testimony has great significance in this case.

7. Comprehensive determination
(1) In this case, there is no indirect fact that is strong enough by itself to be the grounding for presuming that the accused is the perpetrator. However, as examined thus far, there are many indirect facts based on which it can be presumed that the accused was involved in the incident or those based on which it can be considered that his involvement in the incident is highly possible, and by combining these indirect facts, it is proved beyond a reasonable doubt that the accused was involved in the commission of the crimes.
(2) With regard to the meaning of "proof beyond a reasonable doubt," which is regarded as the standard of proof required to find guilt in criminal trials, the decision of the First Petty Bench of the Supreme Court of October 16, 2007, cited by the majority opinion, held as follows: " 'Proof beyond a reasonable doubt' does not mean that there is no room at all to have a doubt about the existence of any fact contrary to the charged fact, but it means that even where there is room, as an abstract possibility, to have a doubt about the existence of any contrary fact, if, in light of the sound, social common sense, such doubt is generally judged to be unreasonable, the court may find guilt."
If the purport of this decision of the First Petty Bench of the Supreme Court is applied to this case, it seems to be proved beyond a reasonable doubt that the accused committed the crimes.
(3) Since the findings of fact in the judgment in prior instance and the judgment in first instance are affirmable, I believe that this court should deliberate on the inappropriateness in sentencing.

III. My questions about the majority opinion, and the examination to be carried out by the court of first instance in charge of the remanded case
1. The majority opinion rules that in order to establish proof beyond a reasonable doubt based on indirect facts, those indirect facts must include "a fact that cannot be reasonably explained if the accused is not the perpetrator." This holding indicates the reasonable inference rule, rather than the construction and application of laws and regulations. However, I find the following two questions about whether it is appropriate to formulate such concept.
(1) The concept of "a fact that cannot be reasonably explained if the accused is not the perpetrator" is not very clear. If this concept means that a single indirect fact must include "a fact that cannot be reasonably explained if the accused is not the perpetrator," it is clearly erroneous because it might be construed to mean that such single indirect fact would be sufficient and indispensable to make a finding, denying the approach to make a finding by combining several indirect facts. Assuming so, in the case of finding the accused to be the perpetrator by combining several, or many indirect facts, in particular, the situation where there is "a fact that cannot be reasonably explained if the accused is not the perpetrator" seems precisely synonymous with the situation where it is proved beyond a reasonable doubt that the accused is the perpetrator. If so, there seems to be no need to bother to formulate such a concept.
(2) Next, as fact finding in a criminal trial is carried out according to the reasonable inference rule established through the experience of living in society, it is not subject to the exclusive authority of judges but ordinary people are also competent to perform this duty. Since the purpose of a Saiban-in (lay judge) trial is to ensure that the sound common sense of the people, with diverse experience, will be reflected in a criminal trial, it must be avoided that Saiban-in accept, without modification, the conventional approach of fact finding that professional judges have established. The concept indicated above has the same import as the concept that has been advocated by some practitioners of law concerning the approach to make a finding based on indirect facts. The majority opinion presents that concept as the requirement for finding the accused to be the perpetrator based on indirect facts, and states that this requirement must be met in order to find the guilt of the accused, and in view of this, it seems that the majority opinion takes the stance that the aforementioned approach of fact finding should also be applied to Saiban-in trials. However, the purpose of the application of said concept may help explain what "proof beyond a reasonable doubt" means, but I think that such concept is inappropriate at present, now that Saiban-in trials have been introduced for the purpose as described above.

2. This case is remanded to the court of first instance. E, the accused's wife, testified that she found bruises (in the shape of fingers) on the accused's arm and wrinkles on his denim shirt caused by wringing immediately after the incident. Although the judgment in first instance denied the credibility of this testimony, everything E mentioned in her testimony is detailed and specific, suggesting that she actually experienced what she said, and therefore I think that the credibility of her testimony should be re-examined. In addition, the judgment in first instance affirmed the voluntariness of the statement in Exhibit Otsu No. 14, whereas the judgment in prior instance denied it. This issue, concerning the voluntariness of the statement of the accused made before the police officers in the course of investigation on a voluntary basis, should also be re-examined.

Public Prosecutor AONUMA Takayuki attended the trial.
Justice FUJITA Tokiyasu
Justice HORIGOME Yukio
Justice NASU Kohei
Justice TAHARA Mutsuo
Justice KONDO Takaharu
(This translation is provisional and subject to revision.)