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When two tiny Burmese Migrant Workers were sentenced to death for the murders of British tourists Hannah Witheridge and David Miller the watching world drew breath. The highly publicised trial and subsequent trial by social media left few in any doubt that it was highly unlikely the right men were behind bars.
Only days after the murders in September 2014 the brother of the islands head man, Mon, was arrested by Eighth Region Police Command commissioner Pol Lt-Gen Panya Mamen, who publicly stated that CCTV proved he was involved along with his nephew Nomsod, the son of the island’s headman. However a few days later both were cleared and Panya Mamen was taken off the case and sent to another region in Thailand.
The focus of the police investigation shifted to two migrant workers, who had no motive, no prior criminal history and had made no move to leave the island in the weeks between the murders and their arrest. After the highly controversial trial the presiding judge told the c
ourt that he had based the men’s conviction solely on the DNA evidence, despite that evidence coming from an unaccredited laboratory and evidence to prove little to no chain of custody of the said DNA.
While Zaw Lin and Wai Phyo sit on death row waiting for their second, and final, appeal to be presented to the Supreme Court a handful of supporters work day in and day out to prove their innocence and save them from the death chamber. One of those supporters is Ian Yarwood, an Australian solicitor who has worked tirelessly on the case.
Mr Yarwood is deeply concerned about the two men behind bars, his belief that a killer is still on the loose, the astounding number of suspicious deaths on the tiny island of Koh Tao and the lack of help, clarity and responsibility various agencies are showing the case. One of those agencies is the Asia Pacific Laboratory Accreditation Cooperation to whom he has aired his concerns in the following open letter.
Barrister & Solicitor
41A Kirwan Street
FLOREAT WA 6014
My ref: 15122.ILAC.APLAC4
21 May 2017
Mr Michael Fraser
Asia Pacific Laboratory Accreditation Cooperation
Unit 1, 13 King William Road
UNLEY SA 5061
CC: Ms Jennifer Evans (Quality Manager) Jennifer.Evans@nata.com.au
Dear Mr Fraser
DEATH SENTENCE IMPOSED ON DEFENDANTS
MURDERS ON “DEATH ISLAND” AKA KOH TAO
PUBLIC PROSECUTOR OF KOH SAMUI PROVINCE v ZAW LIN & WAI PHYO – BLACK NUMBER CASE 2040 /2557
INTERNATIONAL LABORATORY ACCREDITATION COOPERATION (“ILAC”) – ISO 17025
ACCREDITED LABORATORY THE SUBJECT OF COMPLAINT:
SUB-DIVISION OF BIOCHEMISTRY INSTITUTE OF FORENSIC MEDICINE POLICE GENERAL HOSPITAL (“Accredited Laboratory”)
I refer to our previous correspondence in this matter, which commenced over one year ago.
I confirm that by email dated 21 November 2016 you advised me that given the Accredited Laboratory did not have the appropriate accreditation under ISO 17025 when it produced its “Unendorsed Report” you do not intend to take any action and by implication, intend closing your file.
Some of your precise words were:
“As previously advised because the test facility was not accredited for the tests conducted at the time of testing the specimens by BLQS DMSc APLAC has no further role in this matter.”
I confirm having advised you that the convictions of rape and murder against the defendants were based solely upon the so-called DNA evidence contained in this “Unendorsed Report.” I further confirm having advised you that the police and prosecutor misled the Samui Provincial Court by representing that the Accredited Laboratory had the appropriate accreditation but failed to alert the Court that it did not have that accreditation when the Unendorsed Report was prepared.
I confirm that at all material times Mr Suthon Vongsheree, the Director of the Thai Bureau of Laboratory Quality Standards (“BLQS”), has given the distinct impression that he wishes to wash his hands of the matter. I confirm that BLQS has Mutual Recognition Arrangements (“MRA”s) with both APLAC and ILAC and that therefore it is your body that gives BLQS credibility.
I further confirm that BLQS gave accreditation to the Accredited Laboratory, which means that ultimately it is APLAC and ILAC that confers credibility on the Accredited Laboratory. It now seems that you and APLAC wish to wash your hands of this matter, which will lead to the execution of two young men who are almost certainly scapegoats – or alternatively lead to them spending the remainder of their lives in a Thai prison, The Bangkwang Central Prison aka “The Bangkok Hilton.”
The defendants lost their first appeal against their convictions. You might find it surprising that the appeal was heard by the same judges who convicted them at trial. This is normal in Thailand but in Australia a trial judge will not consider an appeal against his or her own judgment.
The Thai defence team is due to file its defence in the Supreme Court later this month.
Many people might feel that your continuing inaction places the lives of the defendants in imminent danger. Many people might consider that it is incumbent upon you to take one or more of the following actions:
Below is a link to an article I wrote in which I discuss the so-called DNA evidence and the roles of BLQS and APLAC. (Published by the Samui Times on 1 December 2016)
Are the defendants mere scapegoats for the murders on Death Island (aka Koh Tao)?
It is open for any reasonable observer to conclude that the defendants are mere scapegoats. I refer your attention to this article published on Thai PBS about eight days after the murders:
Eighth Region Police Command commissioner Pol Lt-Gen Panya Mamen identified the first suspect as Mon.
He is the brother of a village headman in Koh Tao.
He was arrested after evidence which police collected were examined and proved he was involved, he said.
He also said another suspect is also a son of that village headman. But he has already to Bangkok.
He said both suspects were captured by CCTV cameras and the police have gathered enough evidence to implicate them in the murders.
He said the southern police were coordinating with the metropolitan police to hunt him down, and expected to apprehend him today.
The southern police chief also assured the public that there was no arrest of scapegoats in this murder case as it now is a focal attention of the world.
He also dismissed any suggestion of local mafias or influential people that could twist the investigation with promise that local influence would pose no obstacle to the police investigation.
Instead the police will eliminate all these mafias, he said.
Meanwhile a police source said the police are also looking into the cooperation of those who helped to arrange the suspect to escape. They also will be arrested.”
I advise that shortly after this publication, Lt-Gen Panya Mamen was reassigned. I also understand that although his name has appeared in the press in relation to another case he seems impossible to contact.
“Mon” (Montriwat Toovichien) and “Nomsod” Toovichien being the “brother” and son of the Koh Tao headman were “cleared” by police who then focused on Burmese migrant workers and extracted some confessions from the defendants under torture. It seems the CCTV footage implicating Mon and Nomsod disappeared along with all the other proof of their involvement.
Murder rate on Death Island
The murder rate in Australia is approximately 10 per million per annum.
In Thailand the murder rate is approximately 50 per million per annum, although it might be higher given that some murders are not investigated properly.
In contrast, Koh Tao has a staggering murder rate of approximately 1,000 per million per annum.
The population of tiny Koh Tao is approximately 2,000 and about 2 tourists are murdered per annum. Some Burmese migrant workers are also killed but these deaths rarely make the news as they are of little interest to Thais or to Western tourists
Some of the people murdered (or who died in “suspicious circumstances”) recently are Ben Harrington, Nick Pearson, David Miller, Hannah Witheridge, Christina Annesley, Dimitri Povse and Luke Miller.
In addition, a 23 year-old Russian girl, Valentina Novozhenova disappeared on 15 February 2017 and the Thai authorities did not start any search or investigation for over two weeks and only after her disappearance was reported by the Samui Times then other international news services. All we saw from the Thai police was a misinformation campaign.
Jean-francois Louet, a French dive instructor from Koh Tao was found murdered on the mainland in March 2016. There are also one or two snorkellers who have disappeared possibly run over by speed boats.
Do the Thai police lie?
I mentioned above that you might be surprised to learn that the defendants’ appeal was considered and dismissed by the same judges who convicted them at trial.
Thai police are renowned for being highly corrupt. The culture is very different to what you are familiar with in Australia. Saving face of an important individual is far more important than the truth or the lives of foreign workers or tourists.
However, even though Thai police and others in authority seem to get a great deal of practice at lying, their lies do not survive close scrutiny.
It would be absurd in Australia for a senior police officer to point the finger at two suspects as Lt-Gen Panya Mamen did then for his superiors to reassign him and conceal the CCTV footage he referred to. However, it is quite normal in Thailand when the suspects are powerful or influential as they were in the Koh Tao case.
What is the effect of silence and inaction?
It is easy to imagine that two young Burmese workers may be put to death shortly for murders they did not commit.
It is also open to conclude that there are one or more serial killers on Death Island who become emboldened when they get away with murder.
These are the perils of indifference.
Unfortunately, the media both Thai and international appear unable to hold the Thai authorities to account. Part of the problem is that there are severe criminal defamation laws that cripple free speech. In addition, many members of the British media can be lazy. One of the better British journalists complained that some concepts regarding DNA are “complex.” It seems they rely upon clear statements from experts in order to write simple articles.
I would be obliged to learn whether you intend taking any further interest and whether you consider any disinterest might reflect poorly upon the entire regime of creating and maintaining standards.
Please also consider whether you owe the young Burmese men any duty of care, which is an issue upon which you might wish to obtain sound legal advice.
Ian Yarwood LLB, B Com