The performance by Michael Miller outside the court in Koh Samui last week, in which he berated the two young Burmese sentenced to death for the murder of his brother and murder and rape of Hannah Witheridge on the Thai island of Koh Tao for showing 'not a sign of remorse', is beginning to sound rather hollow in the wake of almost universal distrust at the outcome of the trial.
While the Millers and Scotland Yard have publicly supported the Thai authorities, the overwhelming international consensus appears to be that both Wai Phyo and Zaw Lin, were indeed tortured and set up by Thai police as scape goats to protect Thailand’s lucrative tourist trade.
The family of Hannah Witheridge has perhaps correctly decided to hold fire on any comment.
Even the BBC has conveyed concern at the verdict on the Koh Tao murders.
A report by Jonathan Head, the BBCs south east Asia correspondent on the BBC’s website cast even more doubt on Thai police evidence, if any were needed, and quotes an Australian forensic scientist, Jane Taupin, whom the defence decided not to present, whose testimony could have sealed whatever credibility remained of the Thai police DNA investigation.
Head also criticises the ‘bafflingly non-adversarial tactics’ of the defence. None of the witnesses were put through a grilling the like of which we might see in a British court.
Perhaps he meant; why wasn’t chief investigator Police Colonel Chiewpreecha Kerdprong questioned further when asked (a) why he did not investigate an allegation of a confrontation between the two victims and an ‘influential Thai’ earlier in the evening and (b) why did he not check the CCTV of people leaving on the first boats off the island in the morning? To which he replied to both: “I did not consider it important”.
Actually it is not in Thai nature to be adversarial. This is not necessarily due to the benign nature of the Thai people. No, they can be very adversarial if the target is not around.
They just know that if they are adversarial to another Thai, in court or out, that is going to come back to them five-fold and when they least expect it.
So here we have a case where Thailand’s Chief Forensic Scientist Porntip Rojanasund appears for the defence, is seen contradicting and exposing the police DNA evidence, and who actually finds DNA on the murder weapon, which police cannot find; a case where the actual DNA which has allegedly been lost; where video of a ‘running man’ has been a total red herring; but most of all where all evidence could have been manipulated or planted and a case in which the Thai government had already decided who the culprits are and made an announcement to say so.
Truth is not a forte of Thai government statements such as there is ‘no bird flu’ or ‘no human trafficking’, no ‘injudicial executions (Thaksins’ drug war in 2004), and the best known ‘There are no sex venues in Thailand.’
Further, evidence has been presented without corroboration by an organization which to all intents and purposes is Crime Inc. – the very core of which (the Central Investigation Bureau and Crime Suppression Division was exposed last year as responsible for syndicates controlling everything from oil to the trafficking in wildlife.
And further the evidence has been presented in a legal system based on British criminal law, which dropped the presumption of innocence in favour or presumption of guilty, abolished juries, and gave little hope to anyone with no clout – for instance Burmese migrant workers, perhaps one of the world’s worst treated migrant labour forces.
Would the Thai Police set up Burmese for this crime? Well, they set up Burmese every day for something, as they do in Koh Tao, and they have certainly set Burmese up for murder. But I have never heard of an investigation of murder of a Burmese in Thailand. And many do not go home.
In a quarter century in Thailand I have covered probably every controversial murder where a Briton has been involved.
Without exception in all cases I have been asked by Thai police? ‘Will this affect tourism?’ Actually it has not so far, certainly not over the long term, but none considered how offensive the question was each time.
I do not mind repeating that when Kirsty Jones, from Brecon, was murdered and raped in Chiang Mai, police kidnapped a Karen tour guide and under torture he was ordered to masturbate so police could insert evidence into the crime scene.
But that would never have come out had not a Thai journalist with a conscience tipped me off. He could not run the story in his own newspaper, because he would never be able to work in the city again.
Kelvin Bourke and Sheri McFarlane
Similarly Thai police also set up two hill-tribe Chinese Haw migrants 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.
Their lawyer Wirachai Wangkahaemsuk 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. They were acquitted at the appeal court.
Scotland Yard is an honourable institution with an impressive worldwide reputation. And that is what their counsel said when they objected to the Metropolitan Police handing over their report to the defence when a petition was made to the High Court. The British Police report had supported the Thai police’s version of what happened.
This was a ‘chilling effect’ case. It was argued by the Scotland Yard that to hand over the report would have a ‘substantial and adverse effect on law enforcement, fulfilment of public policy and the UK’s security objectives’.
In Case No: HQ15X0311,Queen Bench Division, Justice Green posed the following scenario, and it is worth repeating now because it was so prophetic.
"A foreign prosecutor fails to disclose to a defendant a key piece of evidence of great value to the defendant in a criminal case. This item is however recorded in an MPS (Met Police) report and amounts to personal data.
“The report explains that there is compelling evidence that the foreign forensic scientists employed by the police abroad have mixed up DNA samples. It also records that the prosecution are nonetheless seeking to rely in court upon the wrong DNA evidence to inculpate the accused.
“This entry might be pivotal to the defence and might quite literally represent a matter of life or death. In those circumstances does the Court sacrifice the accused for the wider principle of comity and trust between authorities?
“ The MPS submitted that such was the power and force of the public interest objectives the MPS advanced that even in such extreme circumstances the public interest would still trump the private interest.
“Does the court sacrifice the accused for the wider principle of comity and trust between authorities?”In effect, according to last week's judgment, it did.
As he made his ruling rejecting the application he said:
“I cannot ignore the fact that this is a death penalty case conducted with the accused arguing with their eyes closed.’…
“ I feel considerable unease. I sit a long way from the seat of the trial and do not have a true hands-on feeling for the way evidence has been tendered by the prosecution or the main lines of defence.”
Indeed Justice Green had absolutely no idea what was being undone in the court in Koh Samui.
I am not suggesting that Scotland Yard knew of any evidence being tampered with of course.
After all, as was made clear in the High Court, British police were not present at any interviews, were not witness to any DNA procedures, and were reliant on the documents and videos placed in front of them and what they were told through a Thai police interpreter, or English speaking Thai officers.
The Scotland Yard report did however state that the two young Burmese confessed in front of a judge and counsel.
We know that not to be true.
The Koh Samui judges also ruled that the two young Burmese had not been tortured, when torture and confession is quite the traditional Thai police method of investigation. But other Burmese villages on Koh Tao WERE tortured and there are photographs of their injuries.
On Facebook today an anonymous appeal went out to the parents of the victims to take heed of the fact that despite the judgment they should take heed of the discredited evidence in this case. The appeal goes on to name the alleged ‘real culprits’.
The website Change.org also carried that account by 'anonymous' presumably because the author has some connection with Thailand, plus a petition to PM David Cameron.
And following protests and border closures the Burmese Government has also called for a review of the case.
In Britain at own at my local corner shop even the shopkeeper asks when I bring up the subject: ‘Were those the Burmese boys who were set up?’
So the statement by David Miller’s brother Michael Miller seems to have come from a different trial from that attended by the media in this case. Have the foreign media have an axe to grind?
As for the ‘chilling effect’ which the lawyers for Scotland Yard refer to, the question is “Would this harm relations with the Thai police?’
The Thai police are currently are hosting a vast array of British criminals who know Thailand is a country they can safely operate from providing they cross the right palms.
No the ‘chilling effect’ is this. There are safeguards in British law which are there for good reason.
British police forces have to send forensics to independent Home Office laboratories. There are other legal procedures and evidential rules, which are in place so that justice is not achieved by short cuts and brute force.
Even were these two young Burmese to be guilty, to allow them to go to their deaths, or even life imprisonment (Thailand will show ‘magnanimity’ and reduce the sentence to life later if they are not acquitted on appeal) for Britain to condone such a judgment in the light of the shoddy investigation would show Kant hypocrisy.
For even in Britain even, where we do not like to see criminals get off by using the laws introduced to safeguard justice, we stand by presumption of innocence and fair play.