Koh Tao Convicts ‘Still Hopeful’ As Appeal Looms

[Flashermac]

BANGKOK — Lawyers representing the two Myanmar men sentenced to die for the brutal murders of two British backpackers said today they will soon file an appeal to overturn their convictions.

 

The appeal will seek to vacate December’s judgment against Zaw Lin and Wai Phyo, who were found guilty of the September 2014 double murder of David Miller and Hannah Witheridge, a case that captured widespread attention in both domestic and foreign media.

 

Despite being held on death row in Bangkok’s Bang Kwang Central Prison, Zaw and Wai are in good spirits and optimistic about their upcoming appeal, their lawyer said Tuesday.

 

“They still have hope,†Nakhon Chompuchat said by telephone.

 

The defense team consists of a group of lawyers working pro bono. Nakhon said they will submit the appeal by May 23. The case will be retried in the appeals court on Phuket. A verdict could be reached “at the earliest†in 2017, Nakhon said.

 

No new evidence or witnesses will be introduced to the appeal trial; rather, much of the proceedings will rest on interpretation of the evidence in the previous court. The two defendants, Zaw and Wai, will not make any appearance in the courtroom, Nakhon said.

 

“The court will not summon the defendants, except when the verdict is read,†Nakhon said.

 

On Dec. 24, 2015, the court found Zaw and Wai guilty of killing Miller and Witheridge on a beach on Koh Tao in the early hours of Sept. 15, 2014. The two defendants, who worked at a bar there, were also found guilty of raping Witheridge.

 

They were sentenced to death.

 

However, the verdict fails to lay to rest the controversy over the police investigation into the murders since the earliest days, namely, the accusation that Zaw and Wai were “scapegoats†for the killings.

 

Although police initially said Zaw and Wai admitted to committing the crimes, the pair later recanted their confessions once they were provided with lawyers. Zaw and Wai said they were tortured by police into making a false confession, which police deny.

 

Their lawyer, Nakhon, said his defense team is still having difficulty providing legal counsel to the pair. The prison only allows interpreters who are accredited by the Lawyers Council, Nakhon said, and the defense team has to produce certificates each visit.

 

“Last time, we brought a letter from the Lawyers Council, but … it’s very difficult to do that every time,†Nakhon said. “I’m trying to clear this up by the prison.â€

 

But lawyers and family members are permitted to see the two defendants without any trouble, he added.

 

 

http://www.khaosoden...ate=06&section=

[Flashermac]

Rots o' ruck.

[jitagawn]

Yes very sad they are even still in process...

[bust]

By Nadthasiri Bergman LL.M. Esq – 24th May 2016

 

Previously undisclosed information has been obtained by Thailand Justice from one of the defense lawyers Nadthasiri Bergman which gives further background details on the appeal that was submitted to Koh Samui court on the 23rd May, some significant area’s of concern have been confirmed.

 

“The incision discovered inside the victim’s vagina was determined by British autopsy to have been caused during the Thai autopsy, not a result of sexual assault.â€

 

 

Below is the statement written by Nadthasiri Bergman:

A 198 page appeal on behalf of the accused Burmese defendants in the Koh Tao murder trial has been filed with the Region 8 Court of Appeals on Koh Samui, Thailand. I regret that the pro bono defense team does not have the $5,500 budget necessary to pay for a proper translation into English.

This groundbreaking case is the first in the history of the Thai justice system where police forensic evidence was challenged by the defense and forced to be independently retested. As we feel it is vitally important the content of this public document be made known to the world at large, I have summarized and translated several of the strongest points of the defense’s arguments into English, and mention a few points of concern not addressed in the appeal as well.

Police claimed DNA collected from the scene was sent to Singapore for testing and determined the suspects were Asian. Thai police experts later stated this race determination was only revealed by testing at Prince of Songkla University hospital lab twenty days after the suspects were arrested. It was later revealed DNA samples were never sent to Singapore. Regardless, this set the stage for racial profiling of potential suspects.

The defendants were arrested on unrelated charges, questioned about the murder before having an attorney present and their statements were entered as part of the prosecution’s evidence. This is a violation of Thai law and grounds for dismissal of the case.

DNA samples from both of the accused were collected without consent and before the were informed of the murder charges.

During interrogation, police appointed a hostile interpreter who could not read Thai. The defendants were never properly advised of the murder charges nor their rights under Thai law.

Both accused testified they were stripped naked by police during interrogation and physically assaulted including punching, kicking, plastic bags over their heads, genital attack etc. Wound and bruise evidence of torture was confirmed by three doctors and one detainee witness.

Chain of custody of mobile phone was never provided, no photo of where it was found etc.

Fingerprints of the accused on the mobile phone identified as belonging to one of the victims were never produced as evidence, raising the question of whose fingerprints may have been found on the phone. In fact, there was absolutely no forensic evidence presented by the prosecution connecting the mobile phone to the accused.

Prosecution claims the accused motive for murder was arousal as a result of encountering the victims having sexual intercourse on the beach. The small abrasion found in the victim’s vagina during autopsy could easily have been a result of sexual intercourse between the victims.

Thai autopsy was not able to determine if intercourse had taken place before or after death. Therefore, prosecution was not able to prove rape had taken place.

Thai autopsy results for both victims was only a four page typed summary by the doctor. The legally required autopsy file documenting the procedure with step-by-step photos and point-by-point analysis was never presented.

In stark contrast, the British autopsy report fully documented and presented the entire procedure with step-by-step photos and point-by-point analysis by the forensic pathologist in charge.

The incision discovered inside the victim’s vagina was determined by British autopsy to have been caused during the Thai autopsy, not a result of sexual assault.

DNA files presented had the accused names on them rather than a proper sample reference number. This is not possible without pre-knowledge of who’s DNA the sample being tested belonged to.

Retesting of the handle of murder weapon found DNA matching the male victim, but DNA matching neither of the accused was discovered. Originally police claimed there was no DNA evidence found on the handle of the murder weapon.

After results of DNA found on the handle of the murder weapon was disclosed in court to be from the male victim, prosecution admitted they had also found DNA matching the male victim on the handle of the murder weapon, but no DNA matching the accused. This case damaging evidence had not been introduced by the prosecution and raises the question of what other potentially case damaging evidence may have been withheld such as clothes of the victims allegedly not tested for DNA and why blood in the sand at the murder scene allegedly produced no DNA results, etc.

Multiple procedures are required in order to meet ISO 17025 international standards in DNA testing. The chain of custody, method of testing, graph generated and case notes resulting in the analysis report produced are all required in order to allow an independent expert to verify the results. Only the results of the test without any required supportive documents was provided by the prosecution witness.

Police claimed a 100% DNA match with the accused from samples allegedly taken from the victim’s body. This is scientifically impossible in any forensics testing laboratory anywhere in the world. For example, swabs taken from the victim would contain a minimum of three different DNAs producing what is known as a “mixed sampleâ€. Mixed samples can be the most difficult to interpret, and from which a 100% match is never possible.

Thai forensic scientist Dr. Porntip’s DNA testing listed the statistical probability of a match on the results report. None of the prosecution’s DNA results presented indicated a statistical probability on the results reports. The “100% match†was only delivered verbally in court by a prosecution witness.

Above are the main points argued by the defense team as to why the two accused should be found not guilty. There were other important points about the case which were not included as part of the defense’s appeal such as;

CCTV footage of the only pier with boats leaving the island in the hours immediately after the murders was allegedly not examined by police. The accused already admitted they were in the vicinity at the time of the murders, therefore this important point had nothing to do with evidence presented in court related to the accused so it was not included in the appeal;

Blond hairs found in Hannah’s hand were confirmed in court to not belong to either of the victims or the accused. Since the hair was not evidence linking the accused to the crime, it was not included as part of the appeal. While it is direct evidence linking someone else to the crime, the question of who the hair belonged to remains a mystery and an important point, but not one the defense could use in the appeal.

It is the opinion of the defense team that the prosecution’s requirement of proving guilt beyond a shadow of a doubt has clearly not been met. The defense believes this case should be dismissed and the defendants immediately released from custody.

 

Nadthasiri Bergman LL.M. Esq.

ทนายความณัà¸à¸²à¸¨à¸´à¸£à¸´ เบิร์à¸à¹à¸¡à¸™

[Flashermac]

Facts? Who need facts?

[BelgianBoy]

Facts? Who need facts?

shame that it is that way.......

[cavanami]

They need to admit they were driving a Benz and killed the people but they will say sorry

and go to the Wat for three months...not far from the truth of what certain Thais do...

[Coss]

I reckon that police across Thailand will be worried, worried at the complexity of this evidence stuff.

 

One, because they will think that in the future they will have to understand all of this kind of thing, when they're doing an investigation.

 

And two, because it seems to remove the "I said it so it is true" modus operandi for the police.