Koh Tao Murders: Defense Asks Court to Drop Charges

[Jonathan Fairfield]

Koh Tao Murders: Defense Asks Court to Drop Charges
By Sasiwan Mokkhasen
Staff Reporter


Zaw Lin and Wai Phyo are guided through a 're-enactment' of the past September's double-murder on Koh Tao On October 3, 2014, file photo

SURAT THANI:-- Lawyers representing two Myanmar migrant workers accused of killing two British tourists on Koh Tao murder called on the court today to drop all charges against the accused.

In a written closing statement submitted to the Koh Samui Court today, the volunteer legal team stressed the court should dismiss the charges against Zaw Lin and Wai Phyo due to the weakness of the evidence against them and procedural abuses at the time of their arrest.

The prosecutions case is marked by an absence of significant evidence needed to prove the guilt of the accused for the crimes they are charged with, read the statement filed with the court today.

The two men have been accused of murder, rape and theft. They face the death penalty if convicted.

The legal team, provided by the Lawyers Council of Thailand, said the two men standing trial for the September 2014 murders were arrested illegally as they were denied legal representation and qualified translators. The statement also repeated key testimony to emerge during the trial including claims the suspects were tortured into confessing, a top forensic examiner concluding DNA collected from the alleged murder weapon did not match the accused.

Read more: http://www.khaosodenglish.com/detail.php?newsid=1445857120


-- Khaosod English 2015-10-26

[Jonathan Fairfield]

Press Release: 26^th October 2015

Koh Tao Murder Case Legal Defense Team Submits 56 Page

Closing Statement as Opinion for Koh Samui Court to Consider

For further enquiries on this press release, please contact:

1. K. Nakhon Chompuchat (Head Defense Team Lawyer [email protected] +66(0)818 473086)

2. Mr. Andy Hall (MWRN International Affairs Advisor [email protected] +66(0)846 119209)

3. Ko Sein Htay (MWRN President [email protected] +66(0)946 792478)

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, shouldn’t 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 shouldn’t 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 shouldn’t 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 don’t 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.

The conclusion of the closing statement is the opinion of the two accused in calling for the Court to issue a judgement dismissing all the charges against them.

[Jonathan Fairfield]

Evidence against Myanmar men accused of Brit murders 'unreliable': defence

BANGKOK - Two Myanmar men accused of murdering a pair of British backpackers in Thailand last year should be acquitted because of "unreliable" forensic evidence and a flawed police probe, a court heard Monday.

Zaw Lin and Win Zaw Tun are accused of the murder of 24-year-old David Miller and the rape and murder of Hannah Witheridge, 23, on southern Koh Tao island in September 2014.

Both men have pleaded not guilty and face the death penalty if convicted over a case which tarnished Thailand’s reputation as a tourist paradise and has seen the police accused of bungling the investigation.

A verdict is expected on Christmas Eve.

Prosecutors insist their case against the men is watertight and includes DNA found on Witheridge’s body and around the crime scene.

But the defence has raised doubts over the forensic evidence, bringing in an expert witness who said the murder weapon -- a garden hoe -- did not carry the DNA of the accused.

The defence delivered their closing statement on Monday, the culmination of a 21-day trial stretched out over more than three months that has heard harrowing details of the gruesome murders.

The forensic testimony against the accused is "unreliable and... inadmissible," the statement released to the media said, adding "the prosecution’s case is marked by an absence of significant evidence" to prove guilt.

Questioning the integrity of the murder probe, the defence said the two migrant workers were "questioned without lawyers" and made to sign documents that they did not understand.

Confessions made soon after their arrest were later retracted as they were given under duress, it added.

Lead defence lawyer Nakhon Chompuchat said his clients hoped "common sense" would prevail and see them acquitted.

The battered bodies of the British holidaymakers were found on the sleepy diving island of Koh Tao on September 15, 2014.

Police say Miller was struck by a single blow and left to drown in shallow surf while Witheridge had been raped and then beaten to death with a garden hoe.

Family members of both victims have attended parts of the trial, often breaking down during the more harrowing moments.

It is not clear whether they will be present for the verdict on December 24. Christmas is not a public holiday in Thailand.

Source: http://www.nationmultimedia.com/breakingnews/Evidence-against-Myanmar-men-accused-of-Brit-murde-30271632.html

-- The Nation 2015-10-26

[TPI]

I can't see it hapening.....too much loss of face?

[z42]

It seems that with so many interested parties, and with a mountain of actual evidence actually shredding the prosecution's case entirely, the court has no option but to acquit be it on a technicality or whatever.

If they (the prosecution) fight the acquittal then it will show a lot of the RTP's approaches in an even worse light (unqualified translators, sub standard DNA testing capabilities etc).

Either way the Burmese guys'chances of a bright future are gone. Very sad

[Basil B]

I can't see it hapening.....too much loss of face?

Thailand may will lose face big time if it does not happen...

[lovelomsak]

Thailand has lost all crdibility in this situation. Now it comes down to how do they lie their way out to save face in thailand only. The rest of the worid has accepted that the men charged are innocent and justice isnot being served.

[Baerboxer]

Thailand has lost all crdibility in this situation. Now it comes down to how do they lie their way out to save face in thailand only. The rest of the worid has accepted that the men charged are innocent and justice isnot being served.

How can you, or anyone else know what the "rest of the world" think and accept?

Apart from Thailand. Myanmar and the UK, the media interest won't be that great.

What is apparent is the total lack of professional competence within the RTP, from CSI, to following up and questioning witnesses and suspects, through to presenting evidence. Completely shambolic and clueless.

What they seem to be good at is allowing "interested" parties to direct their actions towards a conclusion that satisfies those parties and might appear to solve the case. They can't get away with it now as easily as the used to. But, they won't give a fig about what anyone outside of Thailand thinks; or anyone inside who isn't Thai and influential.

Feel for the bereaved families. The way this has all been conducted must make a nightmare scenario even worse.

[elgordo38]

Are the bookies taking bets on this and what are the odds. I would imagine about 100-1 they are found guilty.

[KunMatt]

Whatever the verdict this case will bring great shame to Thailand. The verdict happening on Christmas Eve is obviously engineered so that it gets the least amount of attention on Christmas Day.

As it stands, the victims are foreigners and the accused are illegal immigrants. Finding them guilty completely eradicates Thailand of any involvement so I won't be at all surprised that the Thai judges hang these innocent young guys and allows the real gang of murderers to roam free on the Island.

Shame on you Thailand whatever the outcome is.

[seahorse]

http://www.theguardian.com/world/2015/oct/26/british-backpackers-trial-acquit-suspects-court-told-hannah-witheridge-david-miller

“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.”

And so say (almost) all of us. Let them go.

Edited October 26, 2015 by seahorse

[stoffel45]

I can't see it hapening.....too much loss of face?

The loss of face to the Prosecution in obstructing an acquittal is even greater.

The longer this goes on - the worse the Prosecution and the Police appear to be.

Whether the Burmese 2 will be acquitted or not, the guilty ones can rest assured that they will not be prosecuted.

Certainly no police officer or indeed anyone in Prosecution will be interested in re-opening this case.

Let's just hope these lads can really have a Happy Christmas.

[balo]

Are the bookies taking bets on this and what are the odds. I would imagine about 100-1 they are found guilty.

We'll see , I believe they will be acquitted based on the lack of evidence.

Edited October 26, 2015 by balo

[berybert]

David was killed by one blow ? Despite photos proving otherwise this is the sort of evidence the RTP claim to be water tight.

[webfact]

Defence team pokes holes in Koh Tao case
The Nation



KOH SAMUI: -- THE DEFENCE TEAM in the Koh Tao murder case has submitted a 56-page closing statement yesterday to Surat Thani's Koh Samui Court. The team is defending two Myanmar migrant workers accused of killing two British tourists in mid-September last year. The verdict is expected on December 24.

According to the team’s press statement, the seven-member team, working on a pro bono basis, called for the court to consider dismissing charges against Zaw Lin and Wai Phyo (Win Zaw Htun) due to the following points:

lThe process of interrogating and charging the accused prior to prosecution was unlawful. For instance, they were questioned as "witnesses", before the testimony was turned into a so-called confession, with the duo "admitting" to murder and rape charges. They were questioned without the presence of lawyers, and were not provided with adequate translation or legal representation. Their DNA samples were collected against their wishes and, hence, are inadmissible as evidence in court.

lThe so-called confessions cited by the prosecution in court had been collected through torture and threats to their lives. The accused were made to sign documents and confessions even though they had no understanding of the content, and clips of them being forced to "re-enact" the crime should not be admissible as evidence in court.

lNo link has been shown between the alleged murder weapon - a hoe - and the accused. DNA samples from the hoe do not match those of the accused.

lThe DNA evidence that allegedly matches the accused as well as other surrounding or circumstantial evidence apparently proving their guilt is unreliable and should not be considered. This so-called evidence was not collected, tested or analysed in accordance with internationally accepted standards. This includes all evidence allegedly linking the accused to the crime scene, such as cigarette butts, theft of the male victim's mobile phone and sunglasses as well as the "running man" caught on CCTV.

lThe prosecution's case is marked by the absence of significant evidence necessary to prove the guilt of the accused. This absent evidence includes photographs of the crime scene, autopsy and DNA analysis process, chain of custody documents for forensic evidence, certain forensic evidence documents as well as a detailed DNA analysis laboratory case notes. In addition, the clothes and the body of the female victim - which should have contained significant traces of the perpetrators' DNA - was 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

Source: http://www.nationmultimedia.com/national/Defence-team-pokes-holes-in-Koh-Tao-case-30271669.html


-- The Nation 2015-10-27

[MaiChai]

Verdict 24 Dec? How convenient; Christmas eve for most westerners and a day when the world may overlook the verdict?

[Soutpeel]

Verdict 24 Dec? How convenient; Christmas eve for most westerners and a day when the world may overlook the verdict?

Although i believe the B2 have been stitched up in this case, i am not believing the consiracy theory that the date for the verdict has been "conveniently " picked

1. Thailand doesnt officially celebrate xmas, so xmas eve is just another work day

2. In a lot of western countries xmas even isnt a public holiday either

3. Its a Thursday this year so its a business day

In a similar manner in Thailand i regularly schedule "business things" in work for thai or buddhist holidays not realising the significance of the date until i am told

The defense have a very strong case, or the prosecution has a very weak case which ever you look at it and hopefully they will be aquitted, bu the sad thing in following this case on TV are some of the sick/twisted conspiracy theories some member have put forward, so please dont start another one regarding the verdict date

[stephenterry]

It's not a conspiracy to suggest that 24 Dec is more than a coincidence as no British newspaper publishes on Xmas day.

An early Xmas gift for the families perhaps?

[stephenterry]

What makes me sad is that the prosecution still assertions that their case is watertight. If the verdict is guilty it's sick.

[catsanddogs]

Let the fight for justice continue. Truth seekers unite!

[Whyamiandwhatamidoinghere]

I can't see it hapening.....too much loss of face?

Sometimes face needs to be destroyed to save face...

[Whyamiandwhatamidoinghere]

Doing the right thing may seem to be lost of face but in reality you gain it.

[silverado]

Are the bookies taking bets on this and what are the odds. I would imagine about 100-1 they are found guilty.

I guess u want the b2 guilty

[StealthEnergiser]

1.Looking forward to an acquittal on the 24th

2. Also waiting for an announcement on the 25th that a new investigation will be launched to find the real killlers .

[Whyamiandwhatamidoinghere]

The real killers, the ones who have claimed other lives of tourists on Koh Tao are hoping for a guilty verdict so they can murder and rape us again and again with the knowledge they have learn from this trial. Time to do the right thing and set them free then shake the trees and get those murdering monkeys out of power and off Koh Tao.

[Srikcir]

It will likely be a guilty verdict based on the confessions and the initial circumstantial evidence.

In Thai justice one must prove innocence and the accused failed to do so.

Appeal of the verdict relieves the lower court from any accountability so it has no motivation to rule not guilty.

[petedk]

I believe the 2 are innocent but I am very sure they will be found guilty.

Sad but I don't think the prosecutors want to lose face. There is so much power behind the scenes that I can't see any other way out.

[silverado]

Are the bookies taking bets on this and what are the odds. I would imagine about 100-1 they are found guilty.

what's your bet ????

[silverado]

The real killers, the ones who have claimed other lives of tourists on Koh Tao are hoping for a guilty verdict so they can murder and rape us again and again with the knowledge they have learn from this trial. Time to do the right thing and set them free then shake the trees and get those murdering monkeys out of power and off Koh Tao.

[yellowboat]

Thailand will be held in an even more dubious light, if that is at all possible, if they do convict. Let's see Thailand try to get extradition should they convict these two lads. This will cast a negative light on the entire government given the PM's comments and the shoddiness of the police work. What did Scotland Yard contribute to all this ?