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Case Against Koh Tao Accused was based entirely upon assertions rather than evidence says Australian Lawyer

Ian Yarwood, an Australian Solicitor believes the case against the two Burmese accused and now convicted of the Koh Tao murders was based entirely upon assertions rather than evidence as he explains in his recently published article.

By Ian Yarwood – 11th May 2016

There was a very disturbing, very obvious pattern in the police case against two young Burmese workers who were charged and convicted of murder, rape and stealing following the discovery of the bodies of two British backpackers on the Thai island of Koh Tao on Monday, 15 September 2014.

The police case against Wai Phyo and Zaw Lin consisted entirely of assertions unfettered by any supporting evidence. There simply was no reliable evidence before the court upon which to convict them of any of the crimes against David Miller and Hannah Witheridge.

This pattern of relying upon assertions rather than evidence has been repeated on social media by many of the people who maintain that the Burmese pair are guilty.

This pattern of relying upon assertions rather than evidence has been repeated on social media by many of the people who maintain that the Burmese pair are guilty.

Particularly unfortunate was the address that David’s brother, Michael Miller gave to the media gallery outside Koh Samui Provincial Court after the guilty verdicts were handed down. It was unfortunate because Michael praised the efforts of people who appeared to have covered-up for his brother’s true killers and Michael went on to verbally attack two men who appeared to be mere scapegoats. I do not wish to appear insensitive to Michael or his family and I absolutely understand that they might have drawn adverse conclusions following the defence team’s failure to call Jane Taupin.

Many articles have been written about this case and about other murders and suspicious deaths in Thailand in general, and on Koh Tao in particular. Some articles are excellent, some are average and some are quite poor doing little more than repeating whatever a police spokesman has said. I find articles on ThailandJustice.com and Andrew-Drummond.com far more comprehensive than most. Jonathan Head of the BBC is also certainly worth reading for his coverage of this case.

It should be noted that veteran journalist Andrew Drummond in particular has considerable knowledge of the Thai legal system having covered murders of expats and tourists in Thailand for approximately 25 years.

I would encourage anyone while reading any article about this case to consider where the police are merely making assertions that they have not supported with any reliable evidence. The police claims simply cannot be accepted at face value.

Readers who have followed the murder investigation would be aware that Royal Thai Police Lt General Panya Mamen identified Worat Toovichien (aka “Nomsod”) and Montriwat Toovichien (aka “Mon”) as two suspects and that they are the son and brother (respectively) of Koh Tao village headman, Woraphan Toovichien.

There are several good articles on the possible involvement of these two individuals in the murders. See for example http://thailandjustice.com/introduction-to-koh-tao-investigation/ and http://pigeonproject.com/2014/11/30/getting-away-with-murder-by-guest-blogger-part-2/

Many expats and Thais had expressed concerns that the Royal Thai Police would be searching for scapegoats to blame for the crimes. They were not surprised when in early October 2014 Lt General Panya was promoted and transferred and a subordinate, Police Maj General Paween Pongsirin was transferred from Phuket to the Koh Tao investigation.

This article will not discuss Nomsod in any depth but it is noted that many observers, on very reasonable grounds, do not accept Nomsod’s alibi of being in Bangkok at the times of the murders.

The police did provide CCTV footage of a person running near Sairee Beach at about the time of the murders who is often referred to as “running man”. In the early days of the investigation, Mon claimed that he (Mon) was running man in what many people say was an attempt to deflect attention from his nephew Nomsod.

Subsequently, when the police turned their attention away from Mon and Nomsod and put their focus upon the young Burmese workers, Wai Phyo and Zaw Lin the police claimed – they asserted – that “running man” must be Wai Phyo. The basis of this assertion was that Wai Phyo and “running man” looked similar. The police made no effort in court to back up their assertion with any evidence. As it transpired the “running man” assertion played no part in the outcome of the trial but it serves as just one example of a police assertion that was simply not supported by any evidence.

It should be kept in mind that even if Nomsod and “running man” are the same person then that does not make him a criminal but one might suspect that he knows something about the crimes.

There was a very public performance of Nomsod providing a cheek swab and a prompt announcement that his DNA did not match any of the DNA allegedly obtained from the crime scene. That claim could not be verified by anyone another than the police.

(Comparison between gait of “running man” caught on CCTV near the bodies and the gait of Nomsod)


In October 2014 Wai Phyo and Zaw Lin were duly arrested, interrogated and charged with a variety of offences including the murders of David and Hannah, the rape of Hannah, the theft of a mobile phone and sunglasses, and some migration offences.

I have just over 1800 followers on Twitter. Many of those followers contact me in relation to my tweets and articles on this case. Sometimes I will receive a comment from a person to the effect that they don’t believe that the two small Burmese men are the murderers and they don’t trust the police DNA evidence but they remain puzzled about the mobile phone that Wai Phyo claims he picked up on the beach and that the police claim (asserted) belonged to David.

In addressing those queries it is worth considering the following article published on the news website Phuketwan.com on Saturday, 4 October 2014. I know the two journalists reasonably well but I have never spoken with Khun Paween (who is now in exile in Melbourne, Australia following his efforts in investigating human trafficking in Thailand).

Please note that on 27 April 2016 I asked the journalist Alan Morison some questions, which are highlighted. Upon contacting Alan several days after sending him his story with the highlighted questions he said he preferred not to answer them, which is fair enough. His recollections will not be perfect. In previous conversations Alan told me that he is also on good terms with Khun Paween. Alan’s colleague, Khun Chutima was overseas when I last spoke with him.

Please note that Khun Paween claims (asserts) that the two accused gave “a detailed and very specific account of how the two murders were carried out”. I add my comments at the end of the article.
Phuketwan.com article & questions:
Phuket Investigator Takes Over Thailand Beach Murders Probe and Makes Quick Arrests

Yarwood on Koh Tao 1

By Chutima Sidasathian and Alan Morison – Saturday, October 4, 2014

Alan: In relation to this story, was it based upon interviews Khun Chutima had with Paween? I note that you cannot speak Thai and you previously told me that Paween does not speak English.

THE TELEPHONE found in jungle close to the workers’ accommodation, broken into pieces, belonged to David Miller, not Hannah Witheridge. Police clarified that fact on Saturday night.Phuketwan apologises to readers for the confusion.

Alan: Did the police state the basis of their statement that a certain telephone belonged to David Miller? It was not until the later stages of the trial that police produced hearsay evidence that A broken phone in their possession had a matching serial number to David’s telephone. Even then the police did not establish that the broken telephone with the matching serial number was the same telephone that Win (aka Wai Phyo) had given to his friend Ren Ren. Phuketwan apologised to readers for the confusion but is it not true that the Thai police told many news services that the telephone belonged to Hannah? Is it not also true that this was corrected by the Thai police only after one of Hannah’s friends proved that the first claim was false?

Original Report

PHUKET: The arrests of two bar workers for the murders of Hannah Witheridge and David Miller came when a top policeman from Phuket was brought in to become the chief investigator on the island of Koh Tao.

Major General Paween Pongsirin, who has been arresting taxi thugs and attacking beach corruption on Phuket, a much larger holiday island on the other side of Thailand’s isthmus, apprehended the two Burmese for questioning soon after he was ordered to go to Koh Tao on Wednesday.

The major general said he spent ”all night and all day” interviewing the two Burmese suspects, who worked at a bar where Witheridge, 23, and Miller, 24, had been drinking hours before the brutal slaying.

Alan: In relation to the sentence in bold above I understand that the defendants speak English and a Burmese dialect but they do not speak Thai. I also understand from your previous advice to me that Paween does not speak English. Do you know whether Paween could communicate directly to the defendants in Burmese or a Burmese dialect or was Paween reliant upon translators? Paween was visible in the MURDER IN PARADISE footage of a rehearsal of the police so-called re-enactment of the killings. In that footage there was a large group of police officers and other people filming. Do you know whether Paween witnessed any torture or mistreatment that the defendants alleged they suffered at the hands of the police or Rohingya translators? Was Paween present during earlier stages of the interrogations when there might have only been one or two police officers present?

He would only say that there must have been ”some error” in the police investigation after the bodies of the two British tourists were discovered on a beach on September 15.

“I believe we now have the killers,” Major General Paween told Phuketwan last night. ”We have the right people. DNA has confirmed the confessions.”

Major General Paween said he took the Burmese, named as Win and Zaw Rim, both aged 21, through the details of the murders at length before yesterday’s public reenactment in which the two accused wore helmets and flak jackets.

Win told him that a mobile telephone, believed to belong to Hannah Witheridge, had been broken into pieces and thrown into the jungle near where the Burmese lived. The broken telephone was found in a search by police, Major General Paween said.
Alan: In relation to the sentence in bold above did Paween indicate that the said belief was held by the police or by Win (aka Wai Phyo) or by someone else. Did Paween indicate the basis upon which the belief was held? Did Paween indicate that the belief was based on a theory or assumption? Did Paween say who had broken the mobile telephone? Did Paween say that Win claimed he picked a telephone up from Hannah’s body? Did Paween say that Win claimed he picked a telephone up when he went looking for a missing shirt?

The two gave a detailed and very specific account of how the two murders were carried out, Major General Paween said. The pair and another friend had been playing a guitar nearby when the couple strolled past.

The Burmese told him that they attacked from behind as the British couple walked along the beach, using a hoe to hit Miller on the head.

Both the Burmese raped Hannah Witheridge while a third Burmese looked on, Major General Paween said he was told.

”They then used the same hoe to kill her,” Major General Paween said.

”The pair stripped the pants from David Miller to make it look as though the couple had had sex in an attempt to confuse police.”

Alan: In relation to the passages highlighted above I have some questions especially about the reference to “a detailed and very specific account” (singular). Police Major General Suwat Jangvodsuk in the MURDER IN PARADISE documentary said that one defendant confessed to the murders and then after the police allowed the two defendants to talk to each other the second defendant confessed as well. As you probably know, and to add to the possible confusion, in the Thai language there is no distinction between the singular and the plural. Had the police interviewed one defendant in the absence of the other and he gave a detailed account of what transpired (on video) and then if the police interviewed the other defendant who gave an almost identical account of what transpired (on video) then the confessions might carry considerable weight and any retraction might be difficult to believe especially if the full interviews showed no evidence of torture or threats. Was there only one account that the defendants gave? If so was this one account provided after the Thai police had the two defendants talk to each other as claimed by police Major General Suwat Jangvodsuk in the documentary, MURDER IN PARADISE?

Paween said that the defendants said that they attacked Miller from behind using a hoe. Photographs that were posted all over the internet showed that Miller had multiple injuries to the right side of his face, to the right side of his neck and to his left collar bone, which injuries were consistent with what would be inflicted by a short blade or by a punch knife – and not by a garden hoe. Did Paween discuss those injuries at all? Did Paween say that the defendants started cutting Miller with some type of blade after they had already belted Miller over the head with the hoe? Did Paween discuss any other weapon that was used in the attack? I ask these questions keeping in mind that Paween said that the defendants gave “a detailed and very specific account” of the crimes.

Did Paween say that Win (aka Wai Phyo) picked up a mobile phone from Miller’s body? Did Paween say that Win (aka Wai Phyo) picked up a mobile phone from Hannah’s body? Did Paween say that Win claimed to have picked up a mobile phone on the beach when he returned to the beach to look for a shirt?

Did Paween give you the name of the third Burmese man who was supposed to have looked on?

Did Paween say that Win (aka Wai Phyo) picked up a mobile phone from Miller’s body? Did Paween say that Win (aka Wai Phyo) picked up a mobile phone from Hannah’s body? Did Paween say that Win claimed to have picked up a mobile phone on the beach when he returned to the beach to look for a shirt?

Did Paween give you the name of the third Burmese man who was supposed to have looked on?

The two men worked in the AC Bar on Koh Tao. Win had worked there once previously and returned to a similar job there five months ago.

Earlier this year, Major General Paween spent several months leading an undercover team of police on Phuket in an investigation of alleged taxi and tuk-tuk ”mafia.” The drivers were accused of intimidation and extortion of tourist resorts.

More than 200 arrests followed, mostly in Kata-Karon and Patong, when the task force swooped.

As well as planning more taxi-related arrests on Phuket, the major general has recently exposed corruption on the island’s beaches where sunbed operators extorted massive amounts from resorts for use of the public sands.

”What’s happened on Koh Tao is not complicated, like the problems on Phuket,” the major general said.

”The murders on Koh Tao are shocking. Phuket is just as shocking, but in a different way.”

Major General Paween worked on Phuket years ago but only returned this year to conduct the Region 8 special investigation.

He and his boss, Lieutenant General Panya Mamen, were both promoted on Tuesday. The major general was ordered to Koh Tao on Wednesday.

Today the two Burmese from Koh Tao were taken to appear in court on the neighboring island of Samui. The third man is expected to be an important witness in the case.

Alan: Do you know who this “third man” is and whether he was a witness in the case?


The questions I posed in the body of the Phuketwan.com article should be fairly self-evident in their purpose. (NB. It should be noted that the accused’s places of work as recorded in the above article were incorrect.)

Firstly, many people have highlighted that the police initially claimed that Wai Phyo had Hannah’s phone in his possession. It was only after Hannah’s friends pointed out to police that they had given police Hannah’s phone that the police changed their story to Wai Phyo having had David’s phone.

yarwood on koh tao 2

The statements above appeared on the internet shortly after the police “re-enactment” of 3 October 2014 at which time the police also claimed that Wai Phyo had had Hannah’s phone in his possession.

So, this is another example of how the police would pluck assertions out of thin air and call them facts. If Hannah’s friends had not come forward we might have been hearing that her smashed phone with a matching serial number (IMEI number) was found behind a hut on Koh Tao.

In the course of an interrogation where the accused are giving “a detailed and very specific account” one would expect that they would be asked separately, in separate rooms about details relating to the murders such as what happened to David’s phone and sunglasses. If they each provided separate accounts of a crime that were reasonably consistent then it becomes difficult for them to retract their confessions without destroying their credibility.

Imagine if Wai Phyo said in a video interview (in which there was no sign of torture) that they removed David’s shorts and found a phone in his left pocket which Wai Phyo kept and that there were sunglasses hanging from David’s shirt that were broken in their fight with him and which they discarded in a rubbish bin behind shop X on the way home. Imagine further that he said that they each had punch knives that were used in the attack upon David and that he showed the police where he keeps his punch knife. Imagine that if Zaw Lin gave a substantially similar detailed but independent account. In those circumstances, the police would have confessions that were really solid and that the accused could not retract as there would be no way for them to plausibly explain how their confessions were so similar unless they were true (or unless they were reading from a police script following threats of torture).

The accused did not give “a detailed and very specific account” at all if the police could not show this type of detail in the “confessions”. This was another obviously false assertion.

It should be noted that Paween states that in their confession(s) the accused say they attacked from behind as the British couple walked along the beach, using a hoe to hit Miller on the back of the head. So, in this version David Miller is hit on the head as he is walking along. Presumably in this version David would have been knocked out. The wound on the back of David’s head was quite severe. Nevertheless, in this version, after knocking David out the accused decided to pull out blades to cut his face, neck, and collar bone – just for good measure – and to add some defence wounds to his arms, while he was unconscious.

In another police version of the attack, the accused commenced their attack when the Britons were on the ground in an amorous and very vulnerable position. David was found naked save for a sock that was half on his left foot. It seems odd that David was in an amorous and naked position with Hannah but that for some reason he thought it a good idea to keep his left sock half on and half off. In this version as well the Burmese would have had to cut David’s face, neck and collar bone after apparently first belting him over the head very hard with the hoe.

So, the police come up with different versions of the confessions the accused were supposed to have made.

According to Paween the confessions continued that the two accused raped Hannah while a third Burmese man looked on. I do not believe that this mystery third man was mentioned in the trial or anywhere else. This seems to be another example of police making assertions and making up stories as they go along with no effort to substantiate their assertions with any evidence.

It seems far more likely that David was surrounded by a group of Thai thugs and that he sustained the cuts to his face, neck, collar bone and arms while defending himself and that he was finished off by the additional murder weapon being the hoe. It seems highly unlikely that two very short men (145cm and 150cm) attacked the much taller David (190cm) in a face to face confrontation while Hannah did nothing.

Wai Phyo has always maintained that he found A mobile phone on the beach when he went back to look for his footwear and a shirt that belonged to his friend Maung Maung. His version of events is that he had exchanged a shirt earlier that evening with Maung Maung as his friend was cold. Later Wai Phyo and Zaw Lin went for a swim and when they emerged from the water they discovered that the shirt and some footwear was missing. They went home and went to bed. Later Maung Maung turned up and asked Wai Phyo about his shirt, which was important as it was Maung Maung’s work shirt. Wai Phyo went back to the beach and found A phone. Later that morning he gave that phone to his friend Ren Ren (as Ren Ren had previously shared tourists’ tips with him).

Wai Phyo had nothing further to do with the phone he found on the beach. Ren Ren stated in a pre-trial hearing in October 2014 that he himself smashed that phone. I do not know if, or when Wai Phyo ever told Maung Maung about any phone picked up from the beach.

At this point there are multiple breaks in the chain of custody of that phone. According to a retired Australian barrister who observed much of the trial and who has relevant transcripts there is no chain of custody to establish that the phone Wai Phyo handed Ren Ren is the same smashed phone with a serial number to match David’s. This had been confirmed by British activist Andy Hall and others.

In the circumstances, it matters not that David’s father might have presented some hearsay evidence to show that a smashed phone in police possession had belonged to David. Breaks in the chain of custody made that completely inconclusive as the smashed phone the police presented to court could have been substituted.

In addition, as I hope I have demonstrated, there is no evidence that Wai Phyo or Zaw Lin picked up any phone from the bodies of Hannah or David.

Zaw Lin’s story is that he did not know anything about any phone that Wai Phyo picked up on the morning of the murders.

I briefly discussed credible allegations of torture on the accused and other Burmese workers in this article http://thailandjustice.com/no-evidence-convict-burmese-koh-tao-murder-trial/ published in April 2016. I submit that given that Wai Phyo apparently did not make any statement to police about taking a phone from David’s body or Hannah’s body his “confession” to police seems more likely to have been extracted under duress, or even torture as he claims.

The police asserted that Wai Phyo and Zaw Lin raped Hannah but they never provided any original mixed semen samples for the defence team to independently test. Failure to make such original semen samples available is inconsistent with international standards. It is likely that only 5 microlitres of material would be required to conduct a DNA test. There should be plenty of original semen samples available – if it ever existed. Assertions that it was all “used up” are absurd. A single teaspoon would contain enough material for 1,000 tests.

The police asserted that their investigation was transparent. It was not.

The police asserted that their DNA testing complied with international standards. It did not.

The police tendered as “evidence” a meaningless table with handwritten alterations and incorrect dates, and asserted that this constituted proof that the DNA of the defendants as taken from cheek swabs was a “perfect match” and a “100% match” with semen recovered from Hannah’s body.

Jane Taupin and other international DNA experts state that there is no such thing as a perfect match, or a 100% match, and that DNA analysis involves the making of assumptions as to how many people contributed to the sample and then running a statistical analysis based upon the profiles of other people in the population.

In the circumstances, any assertion of a perfect match is simply rubbish even if the original material was made available – which was not the case.

A very good summary of the defects in the DNA evidence was published by Andrew Drummond. I provide links to that article and to another article as Andrew’s website is blocked in Thailand. https://www.change.org/p/david-cameron-independently-investigate-the-horrific-murders-of-hannah-witheridge-and-david-miller/u/14822666


Prior to the trial the police made assertions concerning DNA obtained from cigarette butts however no evidence was presented in court to substantiate those assertions.

As Jane Taupin and others immediately noted, the table in question lacked any stamp from an “Accreditation Body” to signify that the relevant police laboratory had ISO 17025 accreditation.

The Asia Pacific Laboratory Accreditation Cooperation (APLAC) with its head offices in Sydney and Adelaide has Mutual Recognition Arrangements (MRAs) with Accreditation Bodies throughout the region. There are three such Accreditation Bodies in Thailand.

It seems that the Thai Accreditation Body known as the Bureau of Laboratory Quality Standards in the Department of Medical Sciences, Ministry of Public Health was responsible for granting accreditation to the Thai police laboratory. I wrote to this Accreditation Body on 13 January 2016 (by email and facsimile) seeking confirmation but have received no reply or acknowledgement.

In late April 2016 I made some enquiries with the Secretary of APLAC in relation to documents prepared by accredited laboratories that do not bear the stamp or endorsement of their relevant Accreditation Body. The Secretary advised me that such a document is referred to as an “Unendorsed Report”. She said that it is unclear whether an Unendorsed Report from a laboratory would have been prepared under the auspices of the MRA. No inference can be drawn by users of Unendorsed Reports that they were produced in compliance with accreditation requirements. Accredited Laboratories may only issue Endorsed Reports (i.e. reports bearing the Accreditation Body’s stamp) when the testing reported therein has been performed in compliance with accreditation requirements.

It should also be noted that the table (the Unendorsed Report) was not accompanied by any case notes, by any explanation as to how it was prepared, by any statistical analysis, by any assumptions and there was no chain of custody for any original DNA material. The table submitted in evidence by the police and prosecutor did not meet international standards and therefore, with the greatest respect to the court, it should have been ruled as inadmissible and the Burmese defendants should have been acquitted.

The easiest way for the police laboratory to produce results that would indicate a match for the accused’s DNA is simply to obtain a cheek swab from say Wai Phyo and then compare the DNA from that cheek swab with the DNA obtained from another cheek swab from Wai Phyo. I am sure that the police would deny ever doing anything like that but it is open for any reasonable observer to draw that conclusion if the police laboratory did not comply with international standards and did not make any original semen samples available for the defence to independently test. The police only made “amplified” DNA available which could have been obtained from cheek swabs with apparently no way of knowing whether it was sourced from semen or cheek swabs.

I have received conflicting reports on whether the Burmese accused had samples of their DNA taken (along with a host of other migrant workers) in the days after the murders. It is possible that police could test samples taken from the accused in September to samples taken in October to obtain a pristine match. It was just as easy for the police to simply test cheek swab samples taken in October with cheek swab samples taken at the same time. The police can then produce an Unendorsed Report as the Unendorsed Report does not infer that the Accredited Laboratory produced it under the auspices of the APLAC Mutual Recognition Agreement. In reality, such an Unendorsed Report would simply prove that Zaw Lin’s DNA matches his own DNA and Wai Phyo’s DNA matches his own DNA – provided ISO 17025 is adhered to. If ISO 17025 is not adhered to then the Unendorsed Report can assert that the accused’s DNA matches that found on Hannah’s body.

The police laboratory that produced the Unendorsed Report (the table) was probably accredited but I cannot be sure that this is the case. As mentioned above I have tried to obtain verification since 13 January 2016 but have not received a reply.

If one assumes that the police laboratory was accredited this in itself means little. It does not mean that the laboratory complied with the requirements of ISO 17025 in producing the report. The laboratory might have passed some tests with the Bureau of Laboratory Quality Standards but that is all the accreditation would have proved.

I have a driver’s licence. I passed a driving test. However, if I were to drive on the wrong side of the road, on bald tyres, at twice the speed limit and at three times the legal blood alcohol limit then I have broken a series of road rules regardless of the fact that I might hold a valid driver’s licence. In fact, if anything the holding of a valid licence would suggest that I should know better.

In the case of the police laboratory. It matters not that it might be accredited. In producing that Unendorsed Report there were multiple breaches of ISO 17025. If accredited the laboratory should have known better. It certainly should have known better than to produce an Unendorsed Report where two men are on trial for their lives.

In February 2016 I wrote an article in which I made a brief observation of progress with the appeal. http://thailandjustice.com/insights-into-the-murders-of-british-backpackers-on-koh-tao/

I recall being quite optimistic that the very comprehensive grounds of appeal would have been filed by late February 2016.

I cannot offer a definitive explanation as to why the Thai defence team has not acted sooner. They have received enormous professional support from Dr Brian McDonald, Jane Taupin, barrister Mark Trowell QC and a retired Australian barrister.

I did note in the earlier article that the defence team did not perform well in the trial. Perhaps whatever was behind that performance is also behind the delayed action with the appeal. I do not know.

Ian Yarwood LLB, B Com – Solicitor – Perth, Western Australia




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