Judgments of the Supreme Court

Search Results

2019 (A) 1751

Date of the judgment (decision)

2020.09.30

Case Number

2019 (A) 1751

Reporter

Keishu Vol. 74, No. 6

Title

Decision concerning a case in which the preceding attackers assaulted the victim, and then, on the same occasion, the subsequent attacker conspired and joined with the preceding attackers in the middle of the assault, and in which the injury suffered by the victim cannot be found to have been caused by the assault inflicted after conspiracy was established between the attackers; and Article 207 of the Penal Code

Case name

Case charged for injury, robbery, and theft

Result

Decision of the Second Petty Bench, dismissed

Court of the Prior Instance

Tokyo High Court, Judgment of October 3, 2019

Summary of the judgment (decision)

1. Where the preceding attackers assaulted the victim, and then, on the same occasion, the subsequent attacker conspired and joined with the preceding attackers in the middle of the assault, if the injury suffered by the victim cannot be found to have been caused by the assault inflicted after conspiracy was established between the attackers and it is impossible to identify which attacker caused that injury, the subsequent attacker cannot avoid the responsibility for the injury through the application of Article 207 of the Penal Code.

2. Where the preceding attackers assaulted the victim, and then, on the same occasion, the subsequent attacker conspired and joined with the preceding attackers in the middle of the assault, if the injury suffered by the victim cannot be found to have been caused by the assault inflicted after conspiracy was established between the attackers, the subsequent attacker can be held responsible for the injury through the application of Article 207 of the Penal Code only when the assault inflicted by the subsequent attacker was dangerous to the extent that it could cause that injury.

References

Article 207 of the Penal Code



Penal Code

(Special Provision for Injury Caused by Multiple Attackers)

Article 207

When two or more persons assault another person causing injury and it is impossible to know the relative extent of the injury caused by each individual offender or which offender caused the injury, the offenders are dealt with as co-principals even though they did not act in concert.

Main text of the judgment (decision)

The final appeal is dismissed.

Out of the number of days of pre-sentencing detention for this instance, 230 days are included in the calculation of the sentence.

Reasons

Among the reasons for final appeal stated by the defense counsel, NAGATA Mitsuhiro, URA Ryoichi, and OCHI Shunsuke, for the argument of violation of a judicial precedent, the cited judicial precedent is irrelevant in this case because it addressed a different type of facts, and the other arguments are arguments of a mere violation of laws and regulations, errors in fact finding, and grounds to request a retrial, and none of these arguments constitute any of the reasons for a final appeal as referred to in Article 405 of the Code of Criminal Procedure.

In consideration of the defense counsel's arguments, the Court determines, by its authority, whether Article 207 of the Penal Code, which sets forth the special provision for an injury caused by multiple attackers, is applicable to the accused in this case.

1. According to the findings of the judgment in prior instance and the case records, the facts concerning the injury addressed in Section I of the judgment in first instance are as follows.

(1) P and Q, in conspiracy to assault the victim, on December 12, 2017, around 9:23 p.m., burst into the apartment room where the victim was present, and assaulted the victim by slashing the victim on the right side of the head and the left cheek with a box cutter(s), and repeatedly punching the victim in the face, abdomen, etc. and kicking him/her.

(2) About five minutes after P and Q burst into that apartment room, the accused also entered there. Seeing that the victim was covered in blood after being severely assaulted by P and Q, the accused thought of assisting them, and seized a knife that was in the kitchen, and pointed the knife toward the victim's face. At this point in time, the accused implicitly accomplished conspiracy with P and Q to assault the victim.

After that, until around 0;47 a.m. on December 13, 2017, in that apartment room, the accused and P continued the assault by jointly seizing the victim, who attempted to escape from the entrance, and dragging him/her back into the living room and kicking and stamping on the victim in the back, abdomen, etc. several times in turn. In addition, P and Q assaulted the victim by punching the victim in the face, sticking a lit cigarette into the victim's ear several times, striking the victim on the head with objects such as the sole of a leather shoe and a glass ash tray, and slashing the victim in the right little finger with scissors. P stabbed the victim in the left thigh with an awl several times.

(3) As a result of the series of the abovementioned assaults inflicted on the victim before and after the accused conspired and joined with P and Q, the victim suffered a fracture of the right sixth rib requiring about one month to heal, and a cut wound on the right side of the head, a cut wound on the left cheek, a stab wound on the left thigh, a cut wound on the right little finger, and a cut would on the upper lip each requiring about two weeks to heal. Among these injuries, the cut wound on the right side of the head and the cut wound on the left cheek were caused due to the assault inflicted by P and Q before the accused conspired and joined, and the stab wound on the left thigh and the cut wound on the right little finger were caused due to the assault inflicted after the conspiracy was established among the three persons, whereas it is uncertain in which stage of the series of assaults the fracture of the right sixth rib and the cut wound on the upper lip were caused. The assault inflicted by the accused is found to have been dangerous to the extent that it could cause the injury of a fracture of the right sixth rib, but it is not found to have been dangerous to the extent that it could cause the injury of a cut wound on the upper lip.

2. Based on the facts mentioned above, the court of prior instance stated that "where the subsequent attacker conspired and joined with the preceding attackers in the middle of the assault, but it is uncertain whether the injury suffered by the victim was caused due to the assault inflicted before the subsequent attacker joined or was caused due to the joint assault inflicted after the subsequent attacker joined, it is possible to assume both that it was caused by the assault inflicted by the preceding attackers before the subsequent attacker's joining and that it was caused by the joint assault inflicted after the subsequent attacker's joining, and therefore, it is impossible to preclude the possibility of applying the special provision for an injury caused by multiple attackers to the relationship between these assaults." The court of prior instance determined that since both the assault inflicted by P and Q before the accused conspired and joined with them and the joint assault inflicted after the accused conspired and joined was dangerous in concrete terms to the extent that they could cause a fracture of the right sixth rib and a cut wound on the upper lip, and these assaults took place on the same occasion, the accused is not only responsible as a co-principal for the crime of injury with regard to the stab wound on the left thigh and cut wound on the right little finger, but is also responsible for the crime of injury, through the application of Article 207 of the Penal Code, with regard to the fracture of the right sixth rib and cut wound on the upper lip.

3. The defense counsel argue that where the subsequent attacker conspired and joined with the preceding attackers in the middle of the assault, but it is uncertain whether the injury suffered by the victim was caused due to the assault inflicted by the preceding attackers before the subsequent attacker conspired and joined with the preceding attackers or was caused due to the joint assault inflicted after the subsequent attacker conspired and joined, Article 207 of the Penal Code cannot be applied to the subsequent attacker because the preceding attackers are to be responsible for that injury.

Article 207 of the Penal Code, which sets forth the special provision for an injury caused by multiple attackers, provides that in cases where two or more persons assaulted another person, the offenders are dealt with as co-principals on an exceptional basis even though their complicity is not established, in light of the fact that in such cases, it is often difficult to identify the assault that caused the injury suffered by the victim. If the public prosecutor proves, as the prerequisites for the application of that Article, that each offender's assault is dangerous to the extent that it could cause the injury, and that the offenders assaulted the victim in the situation where they appear to have committed the assault jointly, or in other words, they assaulted the victim on the same occasion, no individual offender can avoid being held responsible for the injury unless the offender proves that the assault in which he/she was involved did not cause the injury (2015 (A) No. 703, the decision of the Third Petty Bench of the Supreme Court of March 24, 2016, Keishu Vol. 70, No. 3, at 1).

If the facts mentioned above as the prerequisites for the application of Article 207 of the Penal Code are proved, and it is found that conspiracy was established between the offenders in the middle of the assault, there is no reason to deny the applicability of that Article just because of this finding. Rather, if the applicability of that Article were denied, it would be unreasonable and would result in the loss of balance with the case where conspiracy between the offenders is not found. Consequently, where the preceding attacker assaulted the victim, and then, on the same occasion, the subsequent attacker conspired and joined with the preceding attacker in the middle of the assault, if the injury suffered by the victim can hardly be found to have been caused by the assault inflicted after conspiracy was established between the attackers and it is impossible to identify which attacker caused that injury, it is appropriate to consider that the subsequent attacker cannot avoid the responsibility for the injury through the application of that Article. The fact that the preceding attacker can be held responsible for the injury cannot be the reason to preclude the possibility of applying that Article.

Furthermore, in light of the facts such as that in cases where two or more persons assaulted another person and caused an injury, Article 207 of the Penal Code is applicable to a person who inflicted the assault that was dangerous to the extent that it could cause the relevant injury, it is appropriate to consider that in such cases, the subsequent attacker can be held responsible for the injury through the application of that Article only when the assault inflicted by the subsequent attacker was dangerous to the extent that it could cause that injury. It should be said that when the assault inflicted by the subsequent attacker was not dangerous to that extent, that Article cannot be applied just because it is found that the subsequent attacker conspired with the preceding attacker who inflicted the assault that was dangerous to that extent.

This reasoning can be explained as follows in accordance with the developments in the proceedings of this case in which, while the public prosecutor alleged that there had been conspiracy between the preceding attackers and the subsequent attacker (the accused) from the beginning, the accused denied the existence of conspiracy, but evidence shows that conspiracy was established in the middle of the assault. When applying Article 207 of the Penal Code to the accused who was in such status, a question arises as to whether it is possible to know which of the preceding attackers and the subsequent attacker (the accused) caused the injury. If the public prosecutor proves that both the assault inflicted by the preceding attackers and the assault inflicted by the accused is dangerous to the extent that they could cause the injury, and that they assaulted the victim on the same occasion, this situation constitutes the case "where it is impossible to know which offender caused the injury" in the sense that it is impossible to know whether the injury was caused by the assault inflicted by the preceding attackers or the assault inflicted by the accused, and hence, the accused cannot avoid being held responsible for the injury unless the accused proves that the assault that he/she inflicted did not cause the injury.

In this case, the abovementioned series of assaults inflicted on the victim before and after the accused conspired and joined with P and Q took place on the same occasion. The accused inflicted the assault that was dangerous to the extent that it could cause the injury of a fracture of the right sixth rib, and cannot avoid being held responsible for that injury through the application of Article 207 of the Penal Code. On the other hand, since the accused did not inflict an assault that was dangerous to the extent that it could cause the injury of a cut wound on the upper lip, the prerequisite for the application of that Article is not satisfied. Therefore, it must be said that the judgment in prior instance contains violation of laws and regulations due to the error in the interpretation and application of that Article in that it held the accused responsible for the latter injury as well. However, this violation cannot be regarded as affecting the judgment.

Accordingly, in accordance with Article 414 and Article 386, paragraph (1), item (iii) of the Code of Criminal Procedure and Article 21 of the Penal Code, the Court unanimously decides as set forth in the main text of the decision.

Presiding Judge

Justice KANNO Hiroyuki

Justice MIURA Mamoru

Justice KUSANO Koichi

Justice OKAMURA Kazumi

(This translation is provisional and subject to revision.)