The Taiwan High Court rendered the 106-Zai-6 Criminal Decision of May 23, 2017 (hereinafter, the “Decision”), holding that when a party denies that an unfavorable statement outside of the trial was given arbitrarily, if the entire process was not audio recorded without interruption or if the audio recording was muted or covered or if the recording process was interrupted, such testimony is hardly admissible evidence.
According to the facts underlying this Decision, a prosecutor prosecuted the Accused on the ground that the Accused had scratched the paint of the Complainant’s car. The Complainant found that his car paint was scratched and subsequently learned about what had happened after calling the police and reviewing the surveillance cameras on-site and in the vicinity. Since the Accused allegedly committed an offense of destruction, abandonment or damage of property under Article 356 of the Criminal Code, a final decision finding the Accused guilty as charged was rendered. However, retrial was subsequently conducted since the Accused had submitted new evidence.
The Decision concluded after surveillance videos were examined that the Accused had only walked across the back of the Complainant ‘s vehicle, i.e., the left rear, rear and right rear of the vehicle, before walking straight to get and ride his bicycle. The entire process lasted only 17 seconds. However, the paint on the bonnet, the sheet metal above the left front wheel, the left front door of the left-steering car, and the sheet metal above the right front wheel and the right back wheel was scratched to the extent that the paint on the scratched area was not usable. Moreover, the scratch marks were deep and long, and the Accused did not slow down or stop or bend over with efforts when walking by. Therefore, it could not be ruled out that the scratch was made by another person.
It was further pointed out in this Decision that the Complainant had submitted a private audio recording to prove that the Accused once admitted to the offense. However, the Accused denied the arbitrariness of such unfavorable statement made outside of the trial. Therefore, the court should not simply determine that the Accused’s affidavit was given in his free will simply because the interrogator of the Accused testified that the affidavit had not been obtained through unjustified means. In addition, the principle that an affidavit obtained by unjustified means shall not be admissible evidence is not limited to an affidavit obtained by the interrogator from the accused and shall also cover unjustified means against the Accused by any third party. In addition, regardless of whether the unjustified means take place before or during the interrogation, as long as unjustified means are taken to the extent that the Accused’s physical and mental state are oppressed with a fearful state extended to the duration of the interrogation, if the Accused cannot give a free statement as a result, the statement is still not arbitrary and is not admissible as evidence. In addition, the Complainant failed to provide the complete audio recording which should be 1.5 hours to 2 hours long and the excerpted audio file was only 5 minutes and 56 seconds in length. Under Article 100-1 of the Code of Criminal Procedure, the audio recording should be conducted without interruption. If the audio recording is not performed without interruption throughout the entire process or if the audio recording is muted or covered in the course of recording, the recording can hardly be admitted as evidence. In addition, the transcript of the above audio recording should also be excluded as evidence against the Accused. Therefore, the original guilty decision was reversed and a decision which acquitted the Accused was rendered.