By Andrew Drummond and Jim Pollard
THAI police set up two hill-tribe men to take the rap for the murder of
Australian student Kelvin Bourke and the rape of his girlfriend Sheri
McFarlane in northern Thailand in 2000.
Thailand's Supreme Court delivered a final appeal verdict in Chiang
Mai on Monday, acquitting two men previously given the death sentence
for the crimes.
The court said the police case against Sangthong sae Yang and Inthorn
sae Jong, two Chinese Haw men now in their mid-20s, was flawed.
Judges said new evidence showed DNA extracted from both defendants'
sperm did not match that found in the rape victim, McFarlane.
The DNA evidence was suppressed at their trial in Fang, which found
the two guilty of murder and rape in July 2002 and sentenced them to
death. Monday's ruling upheld a Court of Appeal decision in 2004 that
overturned the original verdict.
Just as in the case of British backpacker Kirsty Jones, 23, who was
murdered and raped in a guest house in Chiang Mai, police in the same
year tried to clear up the case by picking on non-Thai nationals.
In both cases they used torture and ignored DNA evidence of sperm that proved the hill-tribe scapegoats innocent.
In the case of Jones, from Wales, a Karen guide was tortured and
police even tried to extract sperm from him, possibly to place in the
Their plot was exposed after the Guides Association of Chiang Mai marched on the police station.
But the Chinese Haw suspects arrested by police for the attack on
Bourke and McFarlane, from Melbourne, had no such organisation to
support them and spent two years on death row.
Bourke and McFarlane were camping near the northern Thai town of
Fang, in Chiang Mai province, when they were attacked by four men on
February 3, 2003.
Bourke was beaten and then shot trying to defend his girlfriend.
McFarlane was raped and brutally beaten but escaped after pretending to be dead.
Based on alleged confessions, Yang and Jong were convicted and
sentenced to death despite the fact that the DNA sperm was not theirs
and there was photographic evidence that they were many hours away from
the murder scene at the time of the incident.
The police case against the hill-tribe men, both in their mid-20s and
descendants of the Chinese Kuomintang army who fled the Cultural
Revolution, was based on a controversial identification of one of the
pair by McFarlane just days after the attack.
The case was the subject of a documentary expose on Thai television
in which police were accused of threatening to kill the families of the
two young men if they did not confess to the crime - and stage a public
re-enactment for the media.
Despite what the defence say is overwhelming evidence of their
innocence, the prosecution has appealed against their release, a common
tactic in Thailand used to wear down defendants and lawyers.
The men's lawyer, Wirachai Wangkahaemsuk, said: 'The case against
them is so weak that they should drop this appeal and pay compensation.'
He described his clients as scapegoats for a crime that local police
were under enormous pressure to resolve quickly, because of damage to
the tourism industry and a planned visit to the region by Thailand's
Bourke was the third Australian murdered there in 11 months.
At the time, the investigation into the murder and rape was criticised as being incompetent.
In the case of the murder of Jones, a British Embassy official was
quoted in the Nation newspaper in Bangkok as describing the
investigation as shambolic. But the Embassy later denied the quote
attributed to it.
The investigations into the murder and rape of Jones, the murder of
Bourke, and the rape of McFarlane appear as if they will never be