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Yesterday at 9am a team of pro-bono lawyers working under the Lawyers Council of Thailand (LCT) to defend two Myanmar migrant workers sentenced to death following conviction on 24th December 2015 for 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 submitted a 198 page appeal against this conviction and sentencing to Koh Samui Court. The lawyers were accompanied at this submission by May Thein and Phyu Shwe Nu, mothers of the two 22 year old Rakhine accused Zaw Lin and Wai Phyo, who travelled from Rakhine State in Myanmar to Thailand on Saturday to submit the appeal and then visit their sons on death row in high security Bang Kwang Prison in Nonthaburi, where the accused have been held since January.
The appeal was worked on and finalized over 5 months as part of ongoing efforts by the team of LCT lawyers supported by Burmese, Australian and British translators, assistants and advisors to ensure a fair trial and adequate defense for the two accused. Case witness testimony ended on 11th October 2015 after 21 days of witness hearings involving 34 witnesses and thousands of pages of evidence. In its ruling sentencing Zaw Lin and Wai Phyo to death, the Koh Samui Court ruled last year that the prosecution had proved beyond all reasonable doubt and in using forensic evidence in accordance with international standards that Zaw Lin and Wai Phyo committed the crimes accused of. Today’s appeal disagrees with this ruling and requests Region 8 Appeals Court to reconsider and dismiss all charges against the accused. Once the Prosecution has responded to the defense appeal, Region 8 Appeal Court shall consider the case, likely within 2017, and send a judgement back to Koh Samui Court to deliver.
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 2014, 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, the trial eventually commenced on 8th July 2015. Case witness testimony ended on 11th October 2015 after 21 days of witness hearings involving 34 witnesses and thousands of pages of evidence.
On 24th December 2015, Koh Samui Court, in a judgement already widely disseminated (unofficially translated by MWRN and available online at https://assets.documentcloud.org/…/FINAL-KOH-TAO-JUDGEMENT-…
), fully supported and accepted the arguments put forward by the prosecution and ruled to convict Zaw Lin and Wai Phyo of murder and rape whilst sentencing them both to death. Relying primarily on DNA and forensics evidence collected, analysed and reported by the Royal Thai Police, the Court ruled that the prosecution had proven its case against the two accused beyond all reasonable doubt and in accordance with international forensic standards. The court ruled the defendant’s arguments were unsupported.
The 198 page appeal submitted today to Koh Samui Court outlines in detail 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 and the ruling of Koh Samui Court overruled by Region 8 Appeals Court. The appeal also considers testimony of prosecution witnesses so as to allow the court to compare the reliability of this witness testimony alongside that of the defense witnesses.
Almost half of the appeal contests the key issues surrounding reliability of DNA evidence accepted by Koh Samui Court as proving beyond all reasonable doubt a certain match between the two accused and the crimes/crime scene ‘in accordance with international standards.’ The defense insists this evidence, including that allegedly taken from cigarette butts, sperm and saliva is wholly unreliable, inadmissible and should not have been considered by the Court in its ruling as it was not collected, tested, analysed or reported in accordance with internationally accepted forensic standards such as ISO 17025 and ILAC G19. The DNA evidence relied on contained many visible errors and raised suspicions of contamination, as accepted by the Court itself despite its ruling. A number of forensic tests not presented in Court except in the form of verbal hearsay evidence included cigarette butts. These tests were however relied on in the Court’s judgement to support the investigation reliability and a certain match between the accused and the deceased female’s body. The appeal insists all of this evidence should not have been considered as satisfying beyond reasonable doubt that the accused violently raped and murdered the female deceased or murdered the male deceased.
In addition, the appeal argues that Koh Samui Court erred in dismissing the defense team’s arguments that:
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, supported at trial by independent medical evidence, which made them fear for their lives and safety in the context of a case investigation when migrants reported systematic abuse on Koh Tao. These written confessions, even if they had been signed, should not have been considered by the Court. Other documents also written for the accused and which they involuntarily signed not even understanding what they were signing likewise should not have been considered by the court also. The videoed or staged re-enactments undertaken by the accused and submitted to the Court were likewise involuntary, staged under threat of violence and should not have been considered or should be inadmissible as evidence in court.
3. There was no link between the alleged murder weapon (a hoe) and the accused. DNA samples from the hoe didn’t match the accused DNA profiles but instead matched the DNA profiles of other individuals and hence could not support a murder conviction.
4. Other surrounding or circumstantial evidence in this case apparently showing the guilt of the accused was unreliable and should have been inadmissible and not considered by the Court. All of this evidence was not collected, tested, analysed or reported in accordance with internationally accepted standards. This includes all evidence relied on by the Court as linking the accused to the alleged crimes such as theft of the male deceased’s mobile phone and sunglasses as well as a ‘running man’ caught on CCTV.
5. The prosecution case was marked by an absence of significant evidence needed to prove the guilt of the accused for crimes they were charged with and supports the contention that the case against the accused could not be proved beyond reasonable doubt. This absent evidence included photographs of the crime scene, autopsy and DNA analysis processes, chain of custody documents for forensic evidence, certain forensic evidence documents as well as all 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 stated in the appeal is the opinion of the two accused calling for the Region 8 Appeals Court to issue a judgement dismissing all the charges against them.