THE KOH TAO MURDER CASE – NOT NO MAFIA, BUT WHICH MAFIA?

Sunday, April 10, 2016

Solicitor Ian Yarwood analyses the evidence in the Koh Tao Murder Case and find it suspends belief, while Andrew Drummond puts a litte spanner in the works.

Thai prosecutors cannot be trusted to tell the truth. But if that is not so startling, actions coming shortly could bring into question the credibility of not only the prosecutors, but also judges and defence lawyers in the Koh Tao murder case.

In fact the competence and credibility of everyone including Scotland Yard and the British Foreign and Commonwealth could be up for grabs as highly respected lawyers having had the evidence analysed by experts look at action to be taken outside Thailand’s very questionable judicial system.

In the High Court in London a judge has already expressed his disquiet (See Scotland Yard and the Chilling Effect) while allowing Scotland Yard to keep secret their report on the Koh Tao investigation.

That judgment shows just how much are Zaw Lin and Waiu Phyo victims of if not political certainly operational expediency.

The Scotland Yard advice to the parents is what based them to issue a statement through the British Foreign and Commonwealth office.

*****************************

Pre-trial statements

The Miller family: “From what we have seen, the suspects have a difficult case to answer. The evidence against them appears to be powerful and convincing. They must respond to these charges, and their arguments must be considered with the same scrutiny as those of the prosecution.

The Witheridge family:“We would like to stress that as a family we are confident in the work that has been carried out into these atrocious crimes and want to remind both press and public that they do not have the full facts to report and make comment on at this stage.”

*******************************

Below Australian lawyer Ian Yarwood has provided another personal assessment in relation to the conduct of the trial of Burmse Zaw Win and Wai Phyo for the murders of Britons Hannah Witheridge and David Miller.

In his piece he comes to the conclusion that not only can Thai prosecutors not be trusted to tell the truth and not provide false evidence and present deliberately erroneous statements as fact, but even defence lawyers will instruct their clients to lie to the court.

He also questions the abilities of the Thai judges and in particular in Koh Samui citing the Jack Hansen-Bartel case. (search this site).

I do know that if the Thai courts kept verbatim records of what is said in court – not just what the judges chose to write down, there might be a better possibility of justice in the Thai courts.

The case against Wai Phyo and Zaw Lin of course has gone much the same way. The judges have assumed uncorroborated statements as fact – even some downright lies. It’s been child’s play as is evident from Ian Yarwood’s assertions.

But there is a much bigger tiger in the cupboard and, as Yardwood states, more cockroaches in the shadows.

In Thailand police traditionally get their evidence from confessions.

Forensics are often for show. They are rarely up to any international standard at all. But as Ian Yarwood points out nobody would know anyway.

In short there is ample to suggest they often make it up.

When breakthroughs first came through in DNA profiling the Thai police automatically used it in prosecutions because of its near conclusive findings.

This to them was the one new thing which could be as a good beating and a threat to put victims in a bag w weighed down by stones to send them to the bottom of the ocean. And in the Thai justice system it appears to have become just that.  Nobody understands it. And in this case apparently not even the defence team.

DNA findings are only nearly conclusive in the hands of people who know who to properly work with DNA and present its findings.

Its less than useless if they do not. There is little evidence to suggest judges in Thailand know how to deal with DNA and where the dangers are.

They have no way of telling if statements to them are fact. In short they are like children going for the brightest primary colour or in some cases of being obedient if someone gives them a sweet.

And this is not just at the lower level of the judicial system. Scotland Yard and the Foreign and Commonwealth office have a lot to answer for in allowing and issuing statements supportive of the Thai murder enquiry.

The Metropolitan Police were scared of the ‘chilling effect’ – the loss of co-operation with the Thai Police. That is why they objected to a defence legal submission that the MPS reveal its notes.

But then again for the last 50 years the Thai police have in reality been a mafia organisation. The genuine arrests they make have always been supplementary to their cash gathering and saving national face in sitiuations like this such as the murder of Kirsty Jones* in Chiang Mai, of Vanessa Arscott and Adam Lloyd in Kanchanavuri and Leo del Pinto in Pai, northern Thailand.

The long standing questions which need to be answered are – Why is forensic analysis not conducted by an impartial authority outside the police.

The new question is: ‘Is the National Police Forensic Laboratory harbouring a criminal organisation?’

And that may soon be put to the test. We’ll keep you informed.

• In the Kirsty Jones case the British Home Office provided a full DNA profile of the killer from sperm provided. When that profile proved to be Asian the chief Thai detective announced that in all probabiliy the killer (the suspect at the time was Briton Andy Gill) probably purchased the sperm from a male prostitute and ladyboyu and introduced it into the crime scene.  Dyfed Powys Police said ‘No way’. Kirsty Jones, Sue Jones’ mother of kirsty recently wrote to say that a Thai police officer who disagreed with the investigator’s theory was moved from the case.

*

****************************************

By Ian Yarwood

NO EVIDENCE UPON WHICH TO CONVICT BURMESE OF DEFENDED CHARGES IN KOH TAO MURDER TRIAL

BACKGROUND

On 15 September 2014, two young British backpackers, David Miller (24) and Hannah Witheridge (23) were murdered on the Thai island of Koh Tao. Subsequently, two Burmese migrant workers, Zaw Lin and Wai Phyo were charged with a variety of offences including murder, rape, the theft of David’s sunglasses and mobile phone as well as offences under the Immigration Act.
A trial was conducted in the Samui Provincial Court over 18 sitting days of three equal parts between July and October 2015 and the verdict was delivered on 24 December 2015.

Zaw Lin was acquitted of the Immigration Act charges. Wai Phyo had pleaded guilty to entering the Kingdom illegally and of living in the Kingdom illegally and was convicted of those offences. The defendants were acquitted of stealing David’s sunglasses as the court found there was no evidence that they had taken the sunglasses.

None of the statements of fact referred to above are controversial.
The issues that are controversial are whether or not there was any reliable evidence whatsoever in the trial to support convictions on the charges of murder, rape and the theft of David’s mobile phone.

These are the controversial charges I refer to in the headline as “defended charges”.

BUNGLED POLICE INVESTIGATION & TORTURE ALLEGATIONS

The foreign media in particular had been critical of the police investigation from the very beginning even before the world had learned of the defendants, Zaw Lin and Wai Phyo. There were valid allegations of police bungling including their failure to secure the crime scene and of allowing pictures of the crime scene to be taken and posted on the internet. Just as alarming were the many credible reports that Thai police were torturing Burmese workers on the island.

In March 2016 the 46 minute documentary “Murder in Paradise” was released which featured images of injuries that Burmese workers claimed had been inflicted upon them by Thai police during torture. The most serious allegation was that of scalding with boiling water.

 

Images of injuries due to alleged torture in the documentary were provided by the Human Rights and Development Foundation.

In the circumstances, many expats and locals familiar with the ways of the Thai police were claiming on social media and elsewhere that the Thai police would be on the lookout for Burmese scapegoats to take the blame for the murders. Indeed, shortly after Police Lt General Panya Mamen (Chief of Provincial Police Region 8) stated that there would be no scapegoats he was promptly replaced for that most serious of transgressions.

ABSURD REENACTMENT WITH NO PROBATIVE VALUE

In October 2014 shortly after their arrest, interrogation and alleged torture the defendants were forced to take part in a very public “reenactment” of the crimes. The defendants were told not to speak to the media. It was clear that the police were the directors and in charge of this charade. The police wrote the script and were telling the story, not the defendants. The defendants were merely reading their proverbial lines under duress.

The Thai practice of conducting public “reenactments” of crimes has been widely condemned. They have no probative value and undermine an accused person’s right to a presumption of innocence.

POLICE HIGH WATER MARK – CONFESSIONS, DNA & PHONE

There was always tremendous scepticism that Wai Phyo and Zaw Lin were the true killers. Standing at only 145cm and 150cm respectively they would have been dwarfed by David Miller at 190 cm. They had no criminal records and as noted the expats and locals were expecting the Thai police to be searching for scapegoats.

However, at the time of the reenactments in October 2014 the police had a degree of confidence as they asserted that they had:
confessions from both accused (which the accused later alleged were extracted under torture);DNA matches for both accused; and
David’s smashed mobile phone, which phone was allegedly taken from David’s body by Wai Phyo then given to his friend Ren Ren.
It is also common knowledge and uncontested that Wai Phyo and Zaw Lin had been playing guitar on the relevant beach on the morning of the murders.

 

That circumstantial evidence is relatively weak though as there were hundreds of people who could have been at the location the bodies were found and/or at the crime scene(s) that morning.

The three assertions referred to above supported each other. I consider it appropriate to refer them as mere assertions rather than give them the respect of being called evidence. Nevertheless, if the police considered them as evidence then they could take comfort as each piece of evidence supported the others.

The police conveniently glossed over several inconvenient issues.
Hair of a blonde appearance had been found in Hannah’s hand. Neither of the defendants had blonde hair that morning. It seems that Wai Pho might sometimes dye his hair but on the morning of the murders his hair was black. That was glossed over.

A garden hoe was identified as THE murder weapon but it seemed clear from an inspection of photographs of David’s face, neck and left collar bone that he had also been stabbed by a sharp blade such as a punch knife. The police did not recover any punch knives or other blades so it would appear they did not have all the murder weapons. Indeed, the police had no evidence that the defendants ever had punch knives or other blades in their possession. That was glossed over.

In the days following the murders the police made a big point of taking people’s footprints. I wrote about this in an article on the footprints published by journalist, Andrew Drummond and ThailandJustice.

The police did not match the defendants’ footprints with any found in the immediate vicinity where the bodies were found. Therefore, the police had no physical evidence to put the defendants in the immediate vicinity of the bodies.
Even though I have less than 1800 followers on Twitter I did acquire some dedicated trolls who, combined with some visceral personal attacks, sought to discredit the article by saying that the tide had washed away footprints and that indeed Hannah’s left foot was submerged by sand.

My answers are that obviously some footprints were washed away by the waves and tide but not all the footprints. There was a tide that morning but no tsunami. Indeed, in September 2014 the police were going to great efforts to check footprints they found against those of inhabitants of the island. The commentator in the “Murder in Paradise” documentary (link above) made the following sobering comment of the scene: “Blood is mixed with sand”.

The absence of the defendants’ footprints near the bodies was glossed over.

The absence of signs of injuries to the defendants on the morning of the murders was glossed over.

The defendants’ good character and lack of criminal records were all glossed over.

Subsequently Andy Hall and some Thai lawyers obtained access to the defendants who duly instructed them that they had notcommitted murder or rape.

After taking advice from those lawyers the defendants recanted their confessions and accused the police of extracting the confessions under torture.

There are credible reports of the widespread use of torture by the Thai military and by the Thai police. Indeed, as noted above there were credible reports in September 2014 of the Thai police torturing Burmese workers on Koh Tao apparently in attempts to obtain information and/or confessions.

Even at the trial a prosecution witness gave evidence that he saw signs of injuries to one of the defendants immediately after an interrogation.

This was not recorded in the court’s judgment.

Following the withdrawal of the confessions the police and prosecutor had only two assertions with which to proceed. There was the important assertion that semen samples had been recovered from Hannah’s body that matched both defendants. There was also a much less important assertion that a mobile phone that Wai Phyo admitted to picking up from Sairee Beach had belonged to David Miller.
The police had made another assertion too, namely that the poor quality “running man” images captured on CCTV were those of Wai Phyo. The police made no effort to prove that assertion other than by a further assertion that Wai Phyo looked similar. In my opinion, Wai Phyo does look vaguely similar to “running man” although some people have said that an earlier police suspect Nomsod looks more similar to “running man” when one compares their arm movements in the following youtube clip

It was the DNA “evidence” (or assertions) alone that led to the defendants’ convictions. With all due respect to the court, the DNA “evidence” presented by the prosecution should have been ruled as inadmissible. I touched upon some of the reasons in the following article.

http://thailandjustice.com/insights-into-the-murders-of-british-backpackers-on-koh-tao/

The many defects in the DNA “evidence” are to be the main focus of the appeal. Those defects include: the apparent lack of original semen samples (merely “amplified” DNA of unknown origin); lack of chain of custody documents; lack of notes; lack of statistical analysis; and a lack of reasoning (including assumptions) upon which the prosecution witnesses’ opinions were based.

I will not discuss the DNA “evidence” any further at present but towards the end of this article I shall discuss the assertions and evidence surrounding David’s mobile phone and the mobile phone that Wai Phyo said he found on Sairee beach.

TRIAL DID NOT SHED MUCH LIGHT ON ANYTHING

Most observers were left to form opinions that the trial did not get to the bottom of anything.

The police, the prosecutor and the defence team all failed to shed much light on the events surrounding the murders. There were gasps of disbelief in the courtroom when a police officer revealed that he did not bother to check the CCTV cameras that would have shown who left the island via the jetty on the morning of the murders.

Members of the international media had flown to Koh Samui to hear what international DNA expert Jane Taupin had to say about the police DNA “evidence” but were left bewildered when the defence team erred by failing to call her. Court observers including the media noted a distinct failure of the defence team to thoroughly cross-examine prosecution witnesses.

Both the police and the defence team’s unofficial spokesperson, British human rights activist Andy Hall had been making many statements to the media outside court but not much happened inside the courtroom.

Arguably, it was to Andy’s credit that at least he was raising issues with the media but what was really required was for the defence team to raise those issues in the court. The defence team did enough to win but they would have increased the defendants’ chances of acquittal substantially had they called Jane Taupin.

In addition, her evidence would probably have proved to be most enlightening in a trial that otherwise shed little light on the crimes.

MAKING SENSE OF THE TRIAL AND VERDICT

It is easy to see how casual observers from afar could become confused by the conduct and outcome of the trial. Indeed, many people who followed the trial closely also became confused with some aspects of the conduct of the trial.

In my view, in trying to understand the trial it helps enormously if one has the benefit of knowing something about how Thailand and its police and justice system operate.

There is a wealth of information on ThailandJustice.com , the “Murder in Paradise” documentary, a video by “Anonymous” https://www.youtube.com/watch?v=BRi8AqoXxio , Time Magazine http://time.com/3955081/thailand-koh-tao-murder-david-miller-hannah-witheridge-zaw-lin-wai-phyo-burma-myanmar/ as well as youtube ie. https://www.youtube.com/watch?v=ib-iWtN4KpI&nohtml5=False

There are many valuable contributions made on fora such as ThaiVisaForum.com too but unfortunately discussions on TVF have often been derailed by trolls who appear focused on writing nasty, misleading and deceptive comments.

An excellent source of information on murders, scams, trials, police and corruption in Thailand are the websites run by Andrew Drummond: andrew-drummond.com and andrew-drummond.news .
Andrew Drummond kindly published two of my articles in February and March 2016 and added some valuable comments which are reproduced below:

“I have attended enough trials in Thailand to never be surprised by a verdict and never surprised when the verdict files in the face of what I have heard in court.”

Source: https://www.andrew-drummond.news/a-matter-of-record-a-legal-view-on-the-innocence-of-the-koh-tao-two/ 10 February 2016

“COMMENT: A lot of criticism has been levelled at the defence team in this trial since the guilty verdict was announced and Wai Phyo and Zaw Lin were sentenced to death.

“On this I can only make my own personal observation. In all the trials I have attended in Thailand I have never come out of any of them believing any lawyer has put in a good effort. It appears to be that Thais think, and I am fearful of generalising on this point, in a totally different way – and certainly not laterally. There are always, it seems, dozens of crucial questions I would have asked, which are not.

“And as for Thai laws and the application of it I do know Thai lawyers who have totally given up the profession or at least given up practicing criminal law because of the way justice is stacked up against defendants.

“And if law students really believed in justice I am surprised they do not quit law school after the first term.”

Source: http://www.andrew-drummond.com/2016/03/so-what-happened-to-footprints-of.html 5 March 2016

A Thai court can rely too heavily on the unexplained opinions of self-professed DNA experts. With the greatest respect to the Samui Provincial Court I submit that it erred in accepting the DNA evidence of the prosecution.

Australian courts have made similar mistakes which has been highlighted by an additional expert adviser for the defence, Dr Brian McDonald. To follow is a link to an article on errors in Australian courts

http://www.theaustralian.com.au/opinion/forensic-science-in-the-dock/story-e6frg6zo-1225849056865 .

The court also appears to have misconstrued what a defence witness, Worawee Wiyawuth MD said in evidence. The witness was silent on the question of whether the police laboratories operate in keeping with international standards in this case but the court held at page 38 of the judgment that the witness said the laboratories operate in keeping with such standards and by implication that they did so in this case. It was this finding of fact, unsupported by Dr Worawee’s evidence that helped convince the court to accept the prosecution’s DNA evidence.

The evidence concerning David’s mobile phone is interesting but very unclear. The prosecution maintains that Wai Phyo helped murder David and Hannah then took David’s phone from his body. Wai Phyo’s evidence is that he left the beach with Zaw Lin minus his shoes and (Mau Mau’s) shirt which had gone missing but then returned to the beach to search for those items whereupon he found A mobile phone some distance away from where the bodies were later discovered.

Wai Phyo’s evidence continued that when he discovered he could not open the mobile phone that he found he gave it to his friend Ren Ren as Ren Ren often shared his tips with Wai Phyo.

The prosecution case is that when Ren Ren learned of the murders he suspected that the mobile phone Wai Phyo gave him might be connected to those murders so Ren Ren smashed the mobile phone and left it behind his hut. Some weeks later following Wai Phyo’s arrest the police visited Ren Ren and maintain that they recovered a smashed mobile phone from behind Ren Ren’s hut.

In court the prosecution maintained that it had a smashed mobile phone and had a witness testify that a person in the British Embassy said in a telephone conversation that the serial number of the mobile phone that belonged to David Miller matched the serial number of the smashed mobile phone in the prosecution’s possession.

One obvious comment about the telephone conversation is that it is clearly hearsay evidence and should not be admitted as evidence. It can be dangerous enough to allow hearsay evidence but I also note that the court rejected hearsay evidence that Andy Hall had tried to introduce in the form of a report on the gait analysis of the so called “running man”.

In Thailand it can be an offence to criticize a judge (and some judges are as young as 25) but it seems fair to say that sometimes Thai courts accept hearsay evidence and sometimes they do not.

I sat through a three day trial in the Phuket Provincial Court in July 2015 in which the prosecution gave hearsay evidence through the non-English speaking Navy Captain Panlob on the meaning of some English words. Captain Panlob did so on the strength of what an “expert” in the Navy had told him and the meaning was central to the entire case. (The Navy “expert” happened to be wrong).

An Australian SBS documentary on the same Phuket case (http://www.sbs.com.au/news/dateline/story/thailands-moment-truth) had an interesting scene where the defence lawyers were advising one of the defendants, Australian journalist Alan Morison to lie to the court – and these defence lawyers were the good guys! To his credit Alan refused to lie and won the case anyway.

The point I make in this regard is that it seems perfectly acceptable for Thai lawyers to mislead their courts. In Western Australia a lawyer’s first duty is to the court and his/her second duty is to his/her client. I would imagine that a lawyer caught advising a client to commit perjury would be severely disciplined if not struck off the roll.

The Public Prosecutor of Koh Samui Province who acted in the Koh Tao case does not enjoy the best of reputations. Anyone who wishes to know more can look at the sufferings of Jack Hansen-Bartel at Andrew Drummond’s website.

http://www.andrew-drummond.com/2015/02/hear-ye-hear-ye-schools-out-and-court.html . (One of many articles)

In short, one could not trust the Koh Samui Prosecutor to refrain from presenting evidence to the court that he knew to be false.
In relation to the mobile phone that Wai Phyo gave to Ren Ren there was a break in the chain of evidence that would be required to show that this phone matched the smashed phone with a serial number matching the serial number of David’s phone.

I am aware that the court appears to have concluded that the mobile phone that Wai Phyo gave Ren Ren matches David’s phone but my sources including a retired barrister who attended the court and who has the “transcripts” maintains that there was a break in the chain of custody evidence. There was also no evidence of Wai Pho’s finger prints being on any of the pieces of the smashed phone nor of David’s fingerprints.

If Wai Phyo found a mobile phone in Western Australia and kept it or used it in a manner inconsistent with the rights of the true owner he might be guilty of the offence of stealing from a person unknown, so there is no concept in our Criminal Code of “finders keepers”. However, he would not be convicted of stealing a particular person’s phone.

In the circumstances, I do not see that there is reliable evidence that the mobile phone that Wai Phyo handed to Ren Ren was David’s phone. The police know how to use cameras and video cameras. If it had been an honest and diligent investigation the police would have photographed and taken video footage of the smashed phone in situ behind Ren Ren’s hut then had him confirm on camera and in writing that the smashed phone was the product of the phone Wai Phyo had given him.

Persons interested in reading further comments about the mobile phone might wish to examine the material on Andy Hall’s Facebook page at the following links (although it is not all crystal clear):

https://www.facebook.com/andy.hall.3110/posts/10153261210105677
Other relevant posts:

https://www.facebook.com/andy.hall.3110/posts/10153260624680677
https://www.facebook.com/andy.hall.3110/posts/10153283989215677
https://www.facebook.com/andy.hall.3110/posts/10153260624680677
https://www.facebook.com/andy.hall.3110/posts/10153261310280677
https://www.facebook.com/andy.hall.3110/posts/10153260619305677

SIGNIFICANCE OF THE MOBILE PHONE EVIDENCE

The evidence surrounding the mobile phone is not particularly important in its own right. Indeed it is “circumstantial evidence” and has been described by both Jonathan Head of the BBC and Andy Hall as “tangential”.

If the phone that Wai Phyo gave Ren Ren was proved to be David’s phone then it would of course be worthy of some suspicion but Wai Phyo’s explanation of finding it still seems plausible.
However, the suspicion can make it easier for some people to be persuaded to accept DNA evidence that they might not fully understand.

On a more serious note, it should not be overlooked that without chain of custody evidence regarding the mobile phone the police can leave themselves exposed to allegations that they substituted David’s phone for the phone that Wai Phyo gave Ren Ren.

The police already face credible allegations of using torture on the defendants and on other Burmese migrants on Koh Tao following the murders.

With the multiple defects in the presentation of their DNA evidence the police open themselves up to allegations of tampering with that evidence as well.

It is a common feature of cases involving fraud that when one uncovers one example of fraud a more thorough investigation frequently uncovers further frauds. It truly is similar to finding one cockroach which is a good sign that a dozen or more other cockroaches are lurking in the shadows and crevices nearby. The most successful investor in history, Warren Buffett makes similar observations when scrutinising a possible investment.

People in the motion picture industry often say that one trait of a good movie is that it creates a suspension of disbelief in the audience. That is the audience forgets in a sense that the movie is not real. Anyone with a reasonable understanding of how Thai justice works (or doesn’t work) requires a very willing suspension of disbelief in order to accept the story that the Thai police and prosecutor have tried to sell to the world.

Ian Yarwood LLB, B Com
Solicitor

 

*****************************************************************
COMMENT: Well I can certainly testify to belief suspension.

Andrew Drummond:

When I was accused of libeling David John Hanks, a former Melbourne brothel owner by allowing to a poster to call him a pimp my Thai lawyer insisted that I say I was not responsible for monitoring all the posts and in particular this one.

I refused. Although I have had help on the this site, The buck stops me me. Besides I had documentary evidence that Hanks was indeed a pimp from both the Victoria government which issued the licence for him to operate, (Brothels are legal in some states of Australia) and also the Australian Securities and Exchange Commission records also showed he owned the Masquerades brothel in Keysborough in the suburbs of Melbourne. Adverts showed the place specialised in ‘Asian Hotties’, a Thai prostitute had been up before the Australian Administrative Appeals Tribunal for falsifying her visa statement.

And when it came to court and confronted with the documents Hanks admitted them, but said the place was run by Chinese and the girls were looked after very well.

It was neither here whether the girls were look after well or not. While many pimps beat their girls the simple definition of a pimp is simply a

A person who controls prostitutes and arranges clients for them, taking a percentage of their earnings in return. Oxford Dictionary.

And under Victoria State law the licencee is the man who runs the brothel. Game set and match? No I was convicted then the conviction was upheld at the appeal court. It was the only case I lost against assorted Pattaya con men in the latest genre of Computer Crime Act cases. Mind you the translator in the case also turned out to be on the payroll of the plaintiffs!
My lawyer had not let me see her appeal and I still have not until this day. So I assume she was claiming I was denying responsibility for the post on my site, not that the allegation was true and in ther public interest.

The same lawyer also pocketed the cash I paid to counter sue Hanks’ co-plaintiff, the now convicted extortionist Drew Noyes.

****************************************