2022.04.21

2020 (A) 1751

Keishu Vol. 76, No. 4

Judgment concerning the case in which the judgment in prior instance that determined that the judgment in first instance, which found the crime of injury, contains an error in the finding of facts which would clearly affect the judgment, was considered to be illegal due to the errors in the interpretation and application of Article 382 of the Code of Criminal Procedure

Case charged for injury and assault

Judgment of the First Petty Bench, quashed and remanded

Tokyo High Court, Judgment of November 5, 2020

Where the court of first instance found the assault against P by the accused and found the accused guilty of the crime of injury by taking into account the circumstances where P was injured and the accused's behavior regarding the circumstances of P's injury in addition to the details of the external force recognized based on the physicians' opinions; the court of prior instance determined that the judgment in first instance, which found as above, contains an error in the finding of facts which would clearly affect the judgment, by holding that the finding by the court of first instance lacks a premise because, from the physicians' opinions, it is impossible to find the fact that a strong external force was applied to P's head due to an act of someone other than P, which the court of first instance used as the basis when finding the assault, but other than this, only explaining the point that the assault cannot be found only because the accused's statements regarding the circumstances of P's injury are not credible; the court of prior instance that determined as above cannot be regarded as making a determination as to whether the assault by the accused can be found if all the indirect facts are taken into consideration and therefore it cannot be regarded as sufficiently demonstrating that the finding of facts in the judgment in first instance is unreasonable in light of the rule of logic, rule of thumb, etc. by completely examining the necessary matters in the examination of an error in the finding of facts (see the text of the judgment); hence, the judgment in prior instance is erroneous in the interpretation and application of Article 382 of the Code of Criminal Procedure and should inevitably be quashed pursuant to Article 411, item (i) of the same Code.

Article 382 and Article 411, item (i) of the Code of Criminal Procedure

Code of Criminal Procedure
Article 382 When an appeal to the court of second instance has been made on the grounds that there was an error in the finding of facts and it is clear that that error has affected the judgment, facts which appear in the case records and evidence examined by the court of first instance which are sufficient to show that there is an error which would clearly affect the judgment shall be cited in the statement of the reasons for appeal.

Article 411Even in absence of grounds as prescribed in the items of Article 405, the final appellate court may render a judgment to reverse the judgment of the court of first or second instance, on any of the following grounds when it deems that not doing so would clearly be contrary to justice:
(i)There is a violation of laws and regulations which would have affected the judgment.

The judgment in prior instance is quashed.

This case is remanded to the Tokyo High Court.

The reasons for final appeal stated by the public prosecutor, including the argument of violation of a judicial precedent, are in effect arguments of a mere violation of laws and regulations or errors in the finding of facts, and the reasons for final appeal stated by the defense counsel, YAMASHITA Yukio, including the argument of violation of the Constitution, are in effect arguments of a mere violation of laws and regulations or errors in the finding of facts. None of these reasons for final appeal constitutes any of the reasons for final appeal as referred to in Article 405 of the Code of Criminal Procedure.

In consideration of the arguments of the public prosecutor, however, the Court examines the case by its own authority and determines that the judgment in prior instance should inevitably be quashed pursuant to Article 411, item (i) of the Code of Criminal Procedure, for the following reasons.

No. 1 Outline of the case

1. The accused was prosecuted for the facts of committing injury, etc. against the twin boys of his girlfriend, P and Q (aged seven at the time of the incident) (assault and injury against P and injury against Q).

The court of first instance found the facts of assault against P and injury against Q, and with regard to injury against P, it added the facts of the crime summarized as follows: "on April 3, 2016, from around 1:34 p.m. to around 1:41 p.m. (hereinafter referred to as the "Time Period"), in a park in Fuchu City, Tokyo (hereinafter referred to as the "Park"), the accused assaulted P by applying an external force accompanied by a rotational motion with acceleration and deceleration to P's head (hereinafter referred to as the "Assault"), thereby caused P to suffer injuries including acute subdural hematoma, etc. and damage to the brain parenchyma involving severe cognitive impairment and other after-effects." Based on these facts, the court of first instance sentenced the accused to imprisonment for three years.

The accused appealed against the judgment in first instance, and alleged violation of laws and regulations in trial proceedings, errors in the finding of facts, and inappropriate sentencing.

The court of prior instance quashed the judgment in first instance on the grounds of an error in the finding of facts, holding that the Assault cannot be found with regard to the injury against P, and sentenced the accused to imprisonment for one year and six months, with four-year suspension of execution, for the facts of the assault against P and the injury against Q, while acquitting the accused for the fact of the injury against P.

2. According to the findings of the judgment in first instance and the case records, the facts of the case are as follows.

(1) The accused and R started dating after they first met in July 2015, and they were in such relationship at the time of the incident. As the accused had a job as a sports trainer while working as a sales person at an insurance company, he recommended R to have P and Q join a track club. In October 2015, P and Q joined a track club, and the accused himself strictly taught track and field to P and Q.

(2) On April 2, 2016, the accused had P and Q do sumo wrestling as a test to judge whether to let them continue the track club, and as a result, the accused decided to let Q continue the track club because Q showed motivation, while deciding to retest P the next day because P did not show motivation. After returning home, around 3:00 p.m. on the same day, P said he felt sick and vomited, but he had supper, although he ate less than usual, and went to bed around 8:00 p.m. on the same day.

(3) On April 3, around 1:00 p.m., P, Q and R met the accused. While Q and R went to a meeting of the track club, the accused went to the Park with P to retest him, and arrived at the Park around 1:25 p.m. on the same day. After that, until around 1:29 p.m. on the same day, the accused was in the south side of the Park which was captured by the security camera installed near the Park, and then he moved to the north side of the Park around that time. P was in the south side of the Park until around 1:34 p.m. on the same day, seemingly running around in the park, and then he moved to the north side of the Park around that time.

Around 1:41 p.m. on the same day, the accused called R, saying, "Something is wrong, something is strange with P. Is he alright?" "Come here quickly," and the like. When R arrived at the Park by taxi, P sat motionless on the bench in the east side of the Park, leaning on the backrest of the bench, with his arms hanging down loosely, turning his face upward as if bending backward. The accused held P and took him to the taxi, and passed him to R, who was sitting on the backseat. On this occasion, P's eyes were open but wandering, and he did not react when he was called.

R took P to the hospital by taxi, and arrived at the hospital around 2:15 p.m. on the same day. At that point in time, P's lack of consciousness was at the most serious level, and as a result of CT scanning and other tests, P had no fracture of bones including the bone of the skull but was diagnosed as suffering right-sided acute subdural hematoma and brain edema; P was in an extremely serious state, with a large amount of hematoma and severe brain swelling pressing the brain stem, and he needed to undergo emergency surgery. A little past 2:44 p.m. on the same day, before the surgery, the operating surgeon explained to the accused and R that P had subdural hematoma and was severely ill to a level where his life was in danger, and asked about the circumstances where P began to show the symptoms. In response, the accused made a false statement, "I was playing with P, and then, before I knew it, P was crouching down by the slide, and he did not respond even when I called him, so I brought him here."

As a result of the emergency surgery and the tests conducted at that time, it was found that P had subdural hematoma and his relatively thick bridging vein (hereinafter referred to as the "Bridging Vein") was ruptured, and that bleeding in the brain was not caused or worsened by any intrinsic abnormality.

No. 2 Summaries of the judgment in first instance and the judgment in prior instance

1. The court of first instance found the Assault, holding as summarized below.

(1) According to relevant evidence, it is found that during the Time Period, in the Park, a rotational motion with acceleration and deceleration was applied to P's head, resulting in the rupture of the Bridging Vein and causing acute subdural hematoma.

(2) With regard to P's injury, opinions were expressed by Physician D (in light of P's age, it is unlikely that subdural hematoma was caused only by shaking him in the manner of holding and strongly shaking an infant; if it is assumed that P fell from a height or fell down, it is unnatural that no obvious traumatic wound on the head or dirt on the scalp was found; it is not contradictory to assume that P's injury was caused by something like art of throwing in judo, and there is also possibility that his injury was caused by directly hitting him in the head); and Physician E (there has been no case in which a child aged about seven who does not have any endogenous disease suffers subdural hematoma as seriously as P just by accidentally falling down). According to these opinions, it is unlikely that the Bridging Vein was ruptured when P fell down by himself or due to similar actions.

In his/her opinions, Physician F stated that: through the same mechanism as what is referred to as Nakamura's Type I (a case in which an infant who has just begun to pull up to stand falls down backward and hits the back of his/her head, resulting in the rupture of the bridging vein, etc.), the rupture of the Bridging Vein could have occurred even in the case of falling down backward from a relatively low position, for example, if P jumped from the top of the backrest of the bench, fell down on the back and hit his head on the ground; in fact, Physician F has experienced seeing several cases in which children aged five or six suffered the rupture of the bridging vein through such mechanism. However, P's case is not the same as a usual type of Nakamura's Type I, and the cases cited by Physician F are not concrete to the extent they can be compared with P's case in terms of matters including how to identify the injury mechanism. Accordingly, Physician F's opinions do not give rise to a reasonable doubt about the finding mentioned above.

In addition, the defense counsel alleges that P was prone to subdural hematoma on the day of the incident partly because he hit his head on the ground when doing sumo wrestling with Q the day before, and that there is a possibility that the Bridging Vein might have been ruptured due to a minor fall or the like. However, this is nothing more than an abstract possibility because Physician G and Physician F did not state medical knowledge that can corroborate the possibility that P's injury had been caused through such mechanism.

According to the above, it is found that the Bridging Vein was ruptured as a result of a strong rotational motion with acceleration and deceleration having been applied to P's head due to an act of someone other than P.

(3) Further, in light of the circumstances when P was injured and the fact that the accused did not make any statement regarding the possibility of the use of physical force by a third party, it is found that the accused used physical force against P.

(4) The accused was aware of the likelihood that P lost consciousness due to a strong external force applied to his head, and yet, the accused did not call an ambulance, nor did he tell R about the cause of the external force. What is more, when the accused was given an explanation by the surgeon before the emergency surgery on the day of the incident that P's life was in danger, and was asked about the circumstances of P's injury, the accused made a false statement, "before I knew it, P was crouching down by the slide" or the like.

Such behavior of the accused suggests nothing other than that the accused concealed the fact that P was injured due to the act of the accused, and gives rise to a strong presumption that the accused applied an external force against P's head with the intent to assault.

Also taking into account other factors such as the actions of the accused and P in the Park, it is normally difficult to assume that a considerably strong physical force, which could bring about a rotational motion with acceleration and deceleration, would have been used against P's head due to the accused's negligent act.

(5) Regarding the circumstances of P's injury, the accused stated in the trial as follows: "When P stood up on the backrest of the bench and made a standing broad jump forward, he fell down on his back and hit the back of his body to the back of his head against the ground."

However, if P, who stood up on the backrest of the bench, jumped forward and landed on the ground, his feet must have landed first, and therefore, it is unlikely that P turned over in the air, face upward, and fell down on the ground on his back. A researcher in sports science also stated that: "When you jump from a height, you might stumble forward if you land on your feet, but your body would never fall backward." If P hit the back of his head on the ground in the manner described by the accused, it would mean that P's feet and back landed first, and then he hit the back of his head on the ground, in which case it is unlikely that a rotational motion with acceleration and deceleration that was as strong as causing the rupture of the Bridging Vein could have been applied.

In that case, the circumstances of P's injury as described by the accused were unreasonable.

In addition, on the day of the incident, before P's emergency surgery, the accused made a false statement to the surgeon regarding the circumstances of P's injury, and in the interrogation by the police held in March 2017, about one year after that day, and on subsequent occasions, the accused made statements of the same effect as the abovementioned statement that he made in the trial. However, the accused's statements concerning the reasons, etc. are not credible.

(6) According to the above, the Assault is found.

2. Holding as summarized below, the court of prior instance determined that the Assault cannot be found and therefore that the judgment in first instance contains an error in the finding of facts which would clearly affect the judgment.

(1) The determination by the court of first instance that the rupture of the Bridging Vein occurred due to a certain force applied to P's head during the Time Period in the Part and caused subdural hematoma can be upheld.

(2) However, from the physicians' opinions on P's injury, the court of first instance found that a strong rotational motion with acceleration and deceleration was applied to P's head due to an act of someone other than P, but doubts remain as to this finding for the following reasons.

The determination by the court of first instance mentioned above is supported by certain evidence, such as Physician E's opinions and Physician G's opinions (a considerably strong rotational motion with acceleration and deceleration was applied to P's head; P's injury would have not been caused unless the rotational power was substantially strong as if it was applied by holding P by the shoulders and repeatedly shaking him, swinging P's body around and having it crash against something, strongly rotating P's head and beating it on the ground with art of throwing or foot sweep, or pulling back P's head before he landed).

However, Physician F, when giving testimony in the context of this case as an expert with extensive experience, pointed out that: there are several cases in which children who were close to P in age fell down backward and hit the back of their head, and suffered the rupture of the bridging vein through the same mechanism as Nakamura's Type I; and most children suffering Nakamura's Type I had a large gap between the skull and the brain parenchyma and P also had a large gap for his age (age of seven). These opinions of Physician F give rise to a reasonable doubt about the finding that P was injured due to an act of someone other than P.

Furthermore, with regard to the fact that on the day before the day of the incident, P hit his head on the ground when doing sumo wrestling with Q and then vomited, Physician F stated that there is a case where a person showing a symptom due to a bruise before the occurrence of a rupture of the bridging vein, etc. (telltale sign) later suffers subdural hematoma when having even a relatively minor traumatic wound. Physician G, in his/her statement, did not mean to deny a possibility that if the bridging vein is prone to rupture due to certain cause, the rupture of the bridging vein could be caused by a motion that would not cause the rupture of the bridging vein in normal state. Thus, there is a possibility that before the Time Period, the Bridging Vein had become prone to rupture even by a weak force.

Based on these, although it is found that a motion with a certain degree of strength was applied to P's head, the degree of strength could vary, and hence, it cannot be definitively concluded that P's injury would not have been caused without a strong force applied by someone other than P.

Consequently, the court of prior instance found that a strong rotational motion with acceleration and deceleration was applied to P's head due to an act of nobody other than the accused and that the accused is presumed to have been intentional, but this finding lacks a premise.

(3) The statements made by the accused in the trial in the first instance regarding the circumstances of P's injury are unnatural in light of the statements of the researcher in sports science and they are not credible also due to the fact that the accused gave a different explanation to the surgeon on the day of the incident. However, the Assault cannot be found only because the accused's statements are not credible, nor can it be found by reason of the fact that the accused made a false statement to the surgeon.

No. 3 The Court's decision

1. The determination by the court of prior instance upholding the judgment in first instance that the rupture of the Bridging Vein occurred due to an external force applied to P's head during the Time Period in the Part contains nothing unreasonable and can be upheld.

2. The issue of the case is whether the Assault can be identified as the cause of the external force applied to P, who was with the accused for the limited time and the fixed place as described above. The court of first instance found the fact that a strong external force was applied to P's head due to an act of someone other than P only on the basis of the physicians' opinions regarding P's injury (hereinafter referred to as the "physicians' opinions"), and found the Assault, while taking into consideration this fact as well as the circumstances of P's injury (hereinafter referred to as the "circumstances of the incident") and the accused's behavior regarding the circumstances of P's injury (hereinafter referred to as the "accused's behavior").

On the other hand, the court of prior instance held that the finding by the court of first instance lacks a premise because, from the physicians' opinions, it is impossible to find the fact that a strong external force was applied to P's head due to an act of someone other than P, which the court of first instance used as the basis when finding the Assault. Then, the court of prior instance determined that the Assault cannot be found only because the accused's statements regarding the circumstances of P's injury are not credible.

3. As determined by the court of prior instance, Physician F's opinions can be understood as indicating the concrete possibility of P's injury due to his own act in the context of this case. On the other hand, the opinions of both Physician E and Physician D, who have a negative view about the possibility of P's injury due to his own act, seem to be based on a considerable number of cases, but these opinions were contained in the reports of hearing prepared by the police officials and they were uncertain in terms of the approximate number or even the outline of the cases mentioned as the basis. Physician G's opinions, which are cited by the public prosecutor as core proof, lack a convincing explanation concerning the basis of his/her definitive conclusion. In light of these points, it is difficult to consider that the opinions of these physicians provide proof that can exclude the abovementioned possibility pointed out by Physician F.

Furthermore, on the day before the day of the incident, P hit his head on the ground when doing sumo wrestling with Q and then vomited. Physician F stated that there is a case where a person showing a symptom due to a bruise before the occurrence of a rupture of the bridging vein, etc. (telltale sign) later suffered acute subdural hematoma when having even a relatively minor traumatic wound. There is no opinion of any other physician who denies this opinion stated by Physician F. The court of prior instance determined the judgment in first instance to be unreasonable for denying the existence of medical knowledge that would corroborate the possibility that when P was injured, the Bridging Vein was in such a condition that it could be ruptured by a weaker force than in normal time. The determination by the court of prior instance that recognized such possibility can be therefore upheld.

According to the above, the concrete possibility of P's injury due to his own act cannot be precluded only on the basis of the physicians' opinions, and the judgment in prior instance to the same effect can be understood as specifically indicating that the determination by the court of first instance that precluded such possibility only on the basis of the physicians' opinions was unreasonable.

4. However, the judgment in prior instance cannot be upheld in that the court of prior instance determined that the judgment in first instance, which found the Assault, contains an error in the finding of facts which would clearly affect the judgment, by holding that the finding by the court of first instance lacks a premise because it cannot be found that a strong external force was applied to P's head due to an act of someone other than P, but other than this, only explaining the point that the Assault cannot be found only because the accused's statements regarding the circumstances of P's injury are not credible. The reasons for this conclusion are as follows.

5. In this case, it is necessary to examine whether the Assault can be found, as argued by the public prosecutor, by taking into account the circumstances of the incident and the accused's behavior in addition to the details of the external force recognized based on the physicians' opinions, or in other words, whether the concrete possibility of P's injury due to a cause other than the Assault, such as P's own act, can be precluded, and without examining this point, it is impossible to determine whether the judgment in first instance, which found the Assault based on these indirect facts, contains an error in the finding of facts which would clearly affect the judgment.

The Court examines this point. As mentioned above, although the concrete possibility of P's injury due to his own act cannot be precluded on the basis of the physicians' opinions, it is an important factor to what extent such possibility can be recognized on the basis of the physicians' opinions.

The circumstances of the incident are as follows: P had been strictly taught track and field by the accused, and while running around in the Park as a test to judge whether to let P continue the track club, P went near the accused, and then suffered an injury. It is necessary to examine the concrete possibility of P's injury due to his own act under such circumstances.

Furthermore, the accused did not explain to R that P was injured due to his own act despite having the chance to explain this immediately after P's injury occurred or at the hospital, whereas the accused made a false statement to the surgeon that P was injured before the accused knew it. Later, the accused specifically stated the circumstances where P was injured due to his own act, but both the court of first instance and the court of prior instance determined that the accused's statement is contrary to the fact and such determination is not unreasonable. It is also necessary to examine the concrete possibility of P's injury due to his own act in light of such behavior of the accused.

After examining these matters, it is necessary to determine whether the concrete possibility of P's injury due to his own act can be precluded if all these matters are taken into account. The court of prior instance cannot be assessed as having made a determination after examining these necessary matters.

6. According to the examination above, the court of prior instance that determined that the judgment in first instance, which found the Assault, contains an error in the finding of facts which would clearly affect the judgment, cannot be regarded as sufficiently demonstrating that the finding of facts in the judgment in first instance is unreasonable in light of the rule of logic, rule of thumb, etc. by completely examining the necessary matters in the examination of an error in the finding of facts (see 2011 (A) 757, the judgment of the First Petty Bench of the Supreme Court of February 13, 2012, Keishu Vol. 66, No. 4, at 482), and hence, the judgment in prior instance should be considered to be erroneous in the interpretation and application of Article 382 of the Code of Criminal Procedure. Such illegality would have affected the judgment, and therefore it is found to be clearly contrary to justice if the judgment in prior instance were not quashed. Incidentally, since the accused was prosecuted for the fact of injury against A by regarding it as constituting crimes for consolidated punishment along with the facts of assault against A and injury against B, for which the judgment in prior instance found the accused guilty, the abovementioned violation of law could affect the entirety of the judgment in prior instance.

Accordingly, the Court quashes the judgment in prior instance pursuant to Article 411, item (i) of the Code of Criminal Procedure, and remands this case to the Tokyo High Court pursuant to the main clause of Article 413 of the same Code. The Court unanimously decides as set forth in the main text of the judgment.

Public Prosecutor, KOGA Emi, attended the trial.

Justice OKA Masaaki

Justice YAMAGUCHI Atsushi

Justice MIYAMA Takuya

Justice YASUNAMI Ryosuke