The defendant's appeal is dismissed.

Summary of Grounds for Appeal

피고인은 신장 165cm , 체중 90~92kg 에 배가 나온 뚱뚱한 체형이므로 뒤돌아 발로 피해자의 얼굴 부위를 가격하는 것이 불가능한 점, 증인 F는 경찰 조사 당시에는 이 사건을 목격한 사실이 없다고 진술하였다가, 같은 교회에 다니는 피해자의 부탁을 받고 원심법정에 출석하여 이 사건을 목격하였다고 진술한 것으로 보이는 점 등을 종합해 보면, 이 사건 공소사실에 부합하는 듯한 증인 F의 진술은 믿기 어렵다.

Nevertheless, the court below found the witness F’s statement to be reliable and found the facts charged in this case guilty. The court below erred by misapprehending the legal principles.

Judgment

A. When the first instance court examines the credibility of a statement after the witness examination procedure was conducted, it is necessary to assess the credibility of the statement by taking into account all the circumstances that make it difficult to record in the witness examination protocol, including whether the content of the statement itself conforms to the rationality, logic, appearance, or rule of experience, or whether it conforms to other evidence, and whether it conforms to other evidence. The appearance and attitude of the witness who is attending the statement in the open court, and the penance of the statement, etc.

On the other hand, in principle, the appellate court's judgment on the credibility of the statement made by the witness at the court of first instance is based on the records including the witness examination protocol, so it is difficult to reflect the appearance and attitude of the witness at the time of making a statement that can be considered one of the most important elements when determining the credibility of the statement in the evaluation.

Considering these circumstances, the first instance court’s determination on the credibility of the statement made by a witness of the first instance court is clearly erroneous or further made between the result of the first instance court’s examination and the date of the closing of oral argument in the appellate court, based on the content of the first instance court’s judgment and the evidence examined by the