NOW WILL TWO YOUNG BURMESE GO TO THEIR DEATHS IN BRITISH PUBLIC INTEREST?
Among the key deliberate mistruths to the families was that both Zaw Lin and Wai Phyo not only confessed to the Royal Thai Police, but also confessed in front of court judges.
“It was a total falsehood”, said Andy Hall of Migrant Workers Rights Network who has been assisting the defence team.
Detective Chief Inspector Lyons leader of the Met Police team to Thailand stated in his report that both Burmese confessed 'in front of a judge and in the presence of their own counsel' and he took the matter further by adding ‘the accused have not adduced medical or other evidence which might corroborate their torture claim ‘as if to add substance to the Burmese men's guilt.
In fact that was totally incorrect as well.
Andy Hall has now stated:
"Medical evidence was indeed submitted to Koh Samui court to support the accused's allegations of physical abuse, torture or mistreatment. In addition, a key prosecution witness testified during court proceedings that Zaw Lin was in much pain after his arrival to Koh Samui prison from a chest wound. The witness testified to seeing that chest wound also."
Yet he stated: “It is not, and was never intended to be, an attempt to present a case for or against any particular suspect. It is a summary of the RTP investigation, the evidence collected and the lines of enquiry pursued so far as we saw from our observations. It was my role to approach the RTP with an open mind, and this was the way in which I approached the drafting of my Report”
And this could have led to the parents of Hannah and David into believing that they only withdrew their confessions when public opinion was on their side – due to the incompetence of the police the report,
Shortly afterwards they issued statements through the Foreign and Commonwealth Office saying that the evidence against Zaw Lin and Wai Phyo ‘appeared powerful and convincing ‘and also led the Thai police to comment:
‘Relatives of the deceased in the UK have stated that they are confident in the evidence in the Koh Tao case and that the evidence was clear beyond a shadow of doubt’.
In fact both young Burmese men retracted their confession at the first advance witness hearing on October 14th last year – and only later report the defence’ lawyers,” received information that the two accused alleged beatings and torture were used during their detention, prior to sending on for questioning by investigation officials, to elicit their confessions made involuntarily. "
And the trial of the two accused, says the defence team, has shown the complete opposite. In a 68 final submission (summary published below) they detail the totally illegal aspects of the Thai police investigation.
The torture of the suspects was widely assumed in public opinion because other Burmese on Koh Tao had also been tortured but the Scotland Yard took the word of the Thai police, in information translated by the Thai Police’s own interpreter. And confessions are the most common way Thai police ‘solve’ a crime.
And when defence lawyers called for access to the metropolitan police report the Met strongly opposed its release claiming public interest over-rode the interest of the two Burmese despite the fact that they faced execution.
This was what was referred to as the ‘chilling effect’. It could destroy trust between international police forces. But at the hearing in the High Court no mention was made of the fact that the Royal Thai Police could in fact be described as almost a ‘mafia’ organization or as the Met claimed: ‘the substantial and adverse effect on law enforcement, fulfillment of public policy and the UK's security objectives’.
Last year its central core, comprising the Central Investigation Bureau and Crime Suppression Division was taken down by the army and had some 80 per cent of its officers replaced. These units were accused of complicity in everything from oil smuggling to the illegal wildlife and timber trade.
And in significant cases of Britons murdered in Thailand in the past – notably the murder of Kirsty Jones in Chiang Mai and the murders of Vanessa Arscott and Adam Lloyd in Kanchanaburi, Royal Thai Police tried to shift the blame elsewhere – in the case of Kirsty Jones also torturing and attempting to set up a Burmese Karen tour guide.
The Defence Submission:
A team of pro-bono lawyers working under the Lawyers Council of Thailand (LCT) to defend two Myanmar migrant workers accused of the rape and murder of a female British tourist and the murder of a British male tourist on Koh Tao Island, Thailand in September 2014 today submitted a 56 page closing statement as an opinion for Koh Samui Court to consider in issuing a judgement in the case.
The written statement is the final part of a one year effort by a core team of 7 Thai lawyers supported by Burmese, Australian and British translators, assistants and advisors to ensure a fair trial and adequate defense for the accused. Case witness testimony that ended on 11th October 2015 after 21 days of witness hearings involving 34 witnesses and thousands of pages of evidence has already been widely publicised by the media. Koh Samui Court has appointed both parties to the case on 24th December 2015 to hear a verdict.
Hannah Witheridge (23) and David Miller (24) were murdered on 15th September 2014 on Koh Tao, a tourist island in the Gulf of Thailand. The murder investigation was widely criticised both domestically and internationally due to alleged mishandling of forensic evidence and alleged torture both of the two accused and migrant workers living on Koh Tao Island. The challenges faced to Thailand's law enforcement and justice systems in this case also cast a serious shadow over the safety of tourism in Thailand.
On 2nd October 2014, Zaw Lin and Wai Phyo (Win Zaw Htun), 22 year old migrant workers from Rakhine state in Myanmar, were arrested for immigration offences. Additional charges were then laid against them during questioning for rape, murder and theft related to the killings of Hannah Witheridge and David Miller. The two accused signed confessions during interrogation and also publicly and during questioning re-enacted the crimes.
On 14th October, at a first advance witness hearing in the case, both accused then retracted their confessions to LCT lawyers. Later on defense lawyers received information that the two accused alleged beatings and torture were used during their detention, prior to sending on for questioning by investigation officials, to elicit their confessions made involuntarily. The Migrant Worker Rights Network (MWRN) and rights groups called on the LCT to provide trained lawyers for the accused to ensure they could adequately defend themselves against all the charges so as to ensure a fair trial and also importantly to guard against a potential miscarriage of. justice in such a highly publicised and tragic case.
A two month delay in prosecuting the accused resulted from extensive media and diplomatic attention towards the case in addition to calls for justice by the accused, their families and the wider public. This resulted in further questioning of the accused that confirmed that both maintained their complete innocence and insisted their confessions came about involuntary as a result of torture. Multiple criminal charges were then filed against Zaw Lin and Wai Phyo on 4th December 2014 by the Koh Samui prosecutor at Koh Samui Court.
The judges heeded calls for adequate time to prepare a thorough defense for the accused and, after a number of preliminary evidence exchange hearings, a 21-day trial eventually commenced on 8th July 2015.
The closing statement submitted today to Koh Samui Court outlines in detail yet summarises succinctly key planks of the defense team's arguments, presented during testimony of its 13 witnesses in court, so as to outline to what extent the defense witnesses should be seen as credible. The closing statement also considers the testimony of the prosecution witnesses so as to compare the reliability of this witness testimony alongside that of the defense witnesses also for the court. The statement highlights as follows:
(1) The case questioning and charging of the accused prior to prosecution was unlawful. The accused questioning after arrest and the process of notifying them of the charges against them were incorrect. The accused were questioned as 'witnesses' but it turned out as a confession that stated they confessed to murder and rape. The accused were questioned without lawyers or trusted persons present. The accused were not read their rights as criminal suspects or explained the nature of offences they were charged with. Neither were the accused provided adequate translation and legal representation as required by law and as was reasonable in the circumstances. The accused's DNA samples were taken from them involuntarily and are hence inadmissible as evidence in court.
(2) The accused's original confessions cited by the prosecution in court came about involuntarily from torture or abuse that made them fear for their lives and safety in the context of a wider case investigation when migrants reported systematic abuse on Koh Tao Island. These written confessions, even if they had been signed, should not be considered by the Court. Other documents that were also written for the accused and which they involuntarily signed not even understanding what they were signing likewise should not be considered by the court. The videoed or staged re-enactments undertaken by the accused and submitted by the prosecution to the Court were likewise involuntary, staged under threat of violence and should not be considered or should be inadmissible as evidence in court.
(3) There is no link between the alleged murder weapon (a hoe) and the accused. DNA samples from the hoe do not match the accused DNA profiles but instead match the DNA profiles of other individuals.
(4) The DNA evidence allegedly matching the accused as well as all surrounding or circumstantial evidence in this case apparently showing the guilt of the accused is unreliable and should be inadmissible and not considered by the Court. All of this evidence was not collected, tested or analysed in accordance with internationally accepted standards such as ISO 17025. This evidence should not be considered as satisfying beyond reasonable doubt that the accused violently raped and murdered the female deceased or murdered the male deceased. This includes all evidence linking the accused to the alleged crime scene such as cigarette butts, theft of the male deceased's mobile phone and sunglasses as well as a 'running man' caught on CCTV.
(5) The prosecution case is marked by an absence of significant evidence needed to prove the guilt of the accused for crimes they are charged with. This absent evidence includes photographs of the crime scene, autopsy and DNA analysis processes, chain of custody documents for forensic evidence, certain forensic evidence documents as well as detailed DNA analysis laboratory case notes.
In addition, the clothes and the body surface of the female deceased expected to contain significant traces of DNA of the perpetrators were either not tested at all or tested but not included in the prosecution file or case evidence list. CCTV footage provided by the prosecution seemed to be incomplete and no fingerprint or footprint evidence was presented as part of the prosecution case.
Andy Hall - Facebook
Andrew Drummond correctly highlights in his article the UK police's apparent misunderstanding of how Koh Tao murder case accused's arrests, confessions and retraction of their confessions unfolded in reality. The accused Zaw Lin and Wai Phyo were NOT according to records made available to the defence and according to detailed discussion with the accused themselves (I also personally checked this point with them) brought to Koh Samui Court on 10th Oct 2014 and so they could not possibly have confessed before a judge, as the UK police suggest.
The only confessions signed by the two accused during the Koh Tao murder investigation were signed during the police investigation stage (2nd to 10th October 2014).
The police interviewed the accused on 10th October 2014 concerning additional charges and the accused again signed confessions but this all happened in Koh Samui prison and there was no judge present.
Lawyers from LCT Bangkok team were not informed of this interview as another local lawyer was drafted in by the police and this lawyer intended to be the accused lawyer during the case proceedings.
The accused refer to this lawyer as the 'police lawyer.'
Wai Phyo on 11th Oct 2015 did formally confess to immigration offences however.
The first time the two accused appeared in Koh Samui Court was on 14th Oct 2014 for an advanced witness hearing to get the testimony of 3 'apparently' key Myanmar witnesses who police felt were at risk of absconding. The court did not ask the accused to make pleas on this day. The accused both wrote letters to their lawyers on that day denying any involvement in the crimes to which they were charged.
Regarding evidence of mistreatment, medical evidence was indeed submitted to Koh Samui court to support the accused's allegations of physical abuse, torture or mistreatment. In addition, a key prosecution witness testified during court proceedings that Zaw Lin was in much pain after his arrival to Koh Samui prison from a chest wound.
The witness testified to seeing that chest wounds also.
During the court proceedings, the prosecution did seek to allege that both accused had reversed their confessions because of public support. In particular, both the two accused and myself were questioned by the prosecution (and also the judges intervened in this questioning) about financial and other incentives provided to the accused to reverse their confession.
The prosecution was seeking to suggest that 3, 000 baht cash (i think this was the amount, not confirmed) was given by me to each of the accused on 14th October 2014 during their first court appearance.
Likewise there were allegations the 200 Baht daily allowance MWRN's Justice: Koh Tao Murder Case fundraiser provided to the accused somehow was instrumental in their reversing original confessions. Both myself and the two accused denied all these accusations outright.
Neither myself or any other member of the legal defence team or MWRN fundraiser has ever sought to influence the pleading of the two accused prior to their retracting of their confessions or at any time during the case investigation or trial. The legal defence team stressed this position of neutrality of the legal defence team issue in the closing statement also.
In the High Court Mr.Justice Green dismissed a claim by defence lawyers to have a full copy of the Scotland Yard report. But it did trouble him.
In coming to this end result I nonetheless feel very considerable unease. I sit at a long distance from the seat of the trial and I do not have a true “hands on” feel for the way the evidence has been tendered in the trial to date or how the accused might structure their defences. I have not been assisted by the lack of evidence about the Thai proceedings or as to the evidence that has in fact been tendered by the prosecution or as to the main lines of the defence. I have had to work these out for myself doing, as the parties put it, “the best I could”. This has not been a comfortable process.