The biological mother, Ms. Seok (49), of the 3-year-old girl who died in Gumi, Gyeongbuk, leaving the Daegu District Court Gimcheon Branch on August 17 last year after being sentenced to 8 years in prison in the first trial. [Image source=Yonhap News]
[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Supreme Court overturned the original sentence of 8 years imprisonment given to the biological mother of a '3-year-old girl' who died in a villa in Gumi, Gyeongbuk Province.
On the 16th, the Supreme Court's 2nd Division (Presiding Justice Lee Dong-won) overturned the original sentence of 8 years imprisonment in the appeal trial of Seok (49), who was detained and prosecuted on charges of abducting a minor and attempting to conceal a corpse, and remanded the case to the Daegu District Court.
The court stated, "Until the crime, no one other than the defendant knew of the existence of the girl involved in this case, and after the crime, no one knew whether the victim was alive. The method of the crime described in the indictment is based on speculation, and no convincing motive or purpose for the crime has been confirmed. Although there is a genetic test result showing that the girl is the defendant's daughter, the evidentiary power does not directly extend to proving that the defendant abducted the victim by swapping her with the girl involved in this case."
It continued, "There remain doubts that make it difficult to be confident in the guilt of the defendant for abducting the victim by swapping her with the girl involved in this case. Since additional trials seem possible regarding this, it is difficult to accept the original court's guilty judgment. Conversely, the original court's judgment of guilt misapplied the law concerning the degree of proof required in criminal trials and failed to conduct necessary trials, which affected the judgment," the court pointed out.
Seok had pretended to be the deceased girl's maternal grandmother until the time of the incident but was revealed to be the biological mother during the investigation, causing shock.
Seok is accused of swapping the baby born to her biological daughter Kim (23, currently serving a sentence) with the baby she herself gave birth to (the deceased 3-year-old girl) at a maternity clinic in Gumi between the afternoon of March 31, 2018, and the next morning, and then taking her daughter's baby somewhere.
Additionally, Seok is accused of attempting to bury the deceased 3-year-old girl by placing the body in a box and moving it from the villa where her daughter lived on February 9 last year, one day before reporting the girl's death to the police, but then abandoning the attempt.
Seok consistently denied giving birth throughout the investigation and trial.
However, after her daughter Kim was detained, a genetic test using saliva conducted by the National Forensic Service at the request of the Gumi Police Station in February last year showed that "there is no parent-child relationship between daughter Kim and the deceased girl, but they share the same maternal lineage."
Following this, the Gumi Police Station requested further testing from the Busan Forensic Science Laboratory, including Seok's saliva, and the 'STR genotype analysis' showed a parent-child relationship between Seok and the deceased girl with a probability of over 99.9999%.
Despite these results, Seok continued to deny giving birth, so in March last year, the police requested another test from the Daegu Forensic Science Laboratory using Seok's fingernails, hair, and oral epithelial cells, which yielded the same result.
The test was conducted once more during the trial. At the request of the Daegu District Court Gimcheon Branch, which handled the first trial, the Supreme Prosecutors' Office DNA and Chemical Analysis Division conducted a test that showed a 99.9999998% probability that Seok is the biological mother of the deceased girl, while confirming no parent-child relationship between Kim and the girl.
Based on these four rounds of test results, the first trial court judged that Seok could only be the biological mother of the deceased girl and sentenced her to 8 years imprisonment. The court recognized indirect facts such as Seok's consistent purchase of sanitary pads through an e-commerce site until July 1, 2017, her cessation of sanitary pad purchases until July 2018, her purchase of breast reduction bras or shaping underwear in July 2017, and her discontinuation of visits to a public bathhouse after August 6, 2017, as evidence suggesting she was pregnant between July 2017 and March 2018.
Seok's defense argued at trial that even if Seok had given birth, the prosecution failed to prove the motive and method by which she abducted the girl.
However, the first trial court stated, "In a case like this, where the defendant completely denies the charges, the whereabouts of the missing victim are unknown, and there is no objective or direct evidence such as witness testimony or CCTV footage of the crime scene, demanding proof of every link before and after the crime known only to the defendant or concealed by the defendant would lead to an unfair result that disregards the legitimate exercise of criminal punishment through discovery of substantive truth. Therefore, it is difficult to require proof of every detail and method of the crime."
It further stated, "As long as the baby swap is recognized, it can be sufficiently acknowledged that it was carried out by the defendant."
Regarding the motive, the court said, "It is difficult to conclude that the defendant had no motive for this crime," judging that she committed the crime to keep the baby she gave birth to close and to hide an affair from her husband.
The court added, "The defendant swapped the baby she gave birth to with her daughter's baby so that her daughter would raise her own child, whom she wanted to keep closer than her daughter's baby," and "In fact, after discharge, daughter Kim stayed with the girl involved in this case at the defendant's house at the defendant's suggestion, then moved upstairs in the same house."
It also noted, "The defendant had not had sexual relations with her husband for over 10 years until late January 2019, and due to sudden pregnancy, she feared her affair would be revealed to her husband and worried she could not raise the child normally even if she gave birth, so she swapped the babies so that her daughter would raise the baby she gave birth to."
The second trial court also found no problem with the first trial's judgment and dismissed Seok's appeal.
However, unlike the lower courts, the Supreme Court found it difficult to accept the evidentiary power of the crime of abduction based solely on the genetic test result that the deceased girl was Seok's daughter, given the lack of convincing motive or purpose.
The court stated, "When recognizing indirect facts that form the premise of major facts based on circumstantial evidence, the proof must reach a level that does not allow reasonable doubt, and there must be no contradictions or conflicts among the individual indirect facts. Moreover, the indirect facts must be supported by logic, experience, and scientific principles."
It continued, "Therefore, the recognition of guilt requires overwhelmingly superior evidence sufficient to conclude that the defendant committed the crime based on various indirect facts such as motive, choice of means, the process leading to the crime, and the defendant's attitude before and after the crime. The defendant is presumed innocent under the Constitution, and overturning that presumption requires evidence nearly equivalent to direct evidence."
The court also pointed out, "If only circumstantial evidence exists regarding the crime and the evidentiary power of that circumstantial evidence is limited, and no motive is found for the accused to commit the crime, it is consistent with the principles of criminal evidence law to evaluate the evidentiary power of the circumstantial evidence as weak rather than assuming the accused is hiding a clear motive."
It added, "Scientific evidence methods such as genetic testing or blood type testing have considerable binding force when the facts they assume are all proven true and the inference methods are scientifically valid with negligible or no possibility of error. However, in such cases, judges must carefully examine what the scientific evidence method proves, i.e., the relevance between the evidence method and the issue, and make a cautious factual determination."
The court noted, "Since the defendant is the victim's maternal grandmother, even if it is recognized that the defendant swapped the victim with the girl involved in this case and took her away as stated in the indictment, if such an act does not go against the will of the victim's parental rights holders, daughter Kim and her husband, and does not infringe on the victim's freedom and safety, it may not be considered abduction. Therefore, additional trials are necessary to determine whether the defendant's act constitutes abduction, considering the defendant's purpose and intent, circumstances at the time of the act, nature and type of the act, means and methods, and the victim's condition."
Regarding the motive, the court said, "If the defendant had an affair, became pregnant, and missed the timing to have an abortion, it could be a motive to give birth secretly from the family. However, even if the defendant committed this crime, she would have to secretly care for or abandon her granddaughter born to daughter Kim, so the desire to conceal her childbirth alone does not sufficiently explain the motive for this crime."
It continued, "The first trial court stated that the defendant's desire to keep the daughter she gave birth to closer than her granddaughter could be the motive for this crime, but it is questionable whether a daughter and granddaughter can be considered to have such a difference in affection to the extent of committing a swapping crime to deceive the entire family. Moreover, if the defendant committed abduction with such a motive, it is difficult to explain the defendant's behavior of not actively caring for the girl involved in this case for a considerable period when Kim neglected the girl to death, and the defendant's behavior until reporting the girl's body to the police is also not naturally explained."
The Supreme Court also pointed out several issues requiring additional trials among the facts recognized by the lower courts.
The court stated that more precise trials are needed regarding whether the newborn's weight changes measured at the maternity clinic were unusual and the removability of the identification band that disappeared from the newborn room. It also noted the need for further trials concerning a nurse's testimony that the maternity clinic allowed free access from the building entrance to the newborn room but required the mother to go personally or bring the maternal handbook to take the newborn, and that no infants were allowed outside the newborn room before 9 a.m. or after 8 p.m.
Additionally, the court said that since whether the baby swap occurred and whether the babies before and after were different persons is a key issue in this case, it seems necessary to request expert opinions by having specialists analyze photos of the baby's face. It also noted the need for further trials on who cared for the newborn and where, considering Seok worked extended hours, about 10 hours a day, after rejoining work on February 26, 2018.
Meanwhile, Kim, Seok's daughter, who raised the baby she thought was her own but was actually her younger sibling and neglected her to death, was sentenced to 20 years imprisonment up to the second trial and gave up her appeal, finalizing her sentence.
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