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DNA evidence used to condemn Burmese to death tested by an unaccredited lab

On December 24th 2015 the chief judge presiding over the Koh Tao murder trial handed Zaw Lin, 22 and Wai Phyo, 22 the death penalty. His decision, that the pair were guilty of murdering Hannah Witheridge and David Miller, and raping Hannah Witheridge, was based solely on DNA evidence he said. It has now emerged according to a Thai accreditation body that the police laboratory used to conduct the DNA analysis was not internationally accredited to carry out the tests.

suspects koh tao murdersThis shocking fact came to light after Australian Lawyer Ian Yarwood wrote to Suthon Vongsheree, the Director of the Bureau of Laboratory Quality Standards with a letter of complaint questioning the qualifications of the Laboratory of the Toxicology Sub-Division of the Institute of Forensic Medicine Police General Hospital. In his response to the letter Suthon told Yarwood that the Police General Hospital in Bangkok did not receive accreditation until January 2015, four months after the vital DNA testing on the Koh Tao murders took place. Not only does this make the DNA evidence highly questionable but begs the question as to why Scotland Yard were supportive of the Thai police investigation – with only the assurance of Scotland Yard to go on the families of the victims were also supportive of the investigation, although since then the father of one of the victims has changed his mind.

The supporters of the two Burmese boys, who have proclaimed their innocence since retracting confession they say was beaten out of

Ian Yarwood

Ian Yarwood

them, have become increasingly frustrated by the defence team’s reluctance to make the complaint. After months of waiting for a letter to be sent, one supporter finally demanded to know why nothing was being done and was told it was a question of money as one of the leading members of the defence team felt he was unable to continue to work on a pro bono basis. Three weeks ago $5000 AUS was sent on the understanding the letter, that had been drafted by an Australian Barrister some months ago, would be sent as a matter of priority, however, no letter was sent. Fearing that no letter would ever be sent Ian Yarwood took it upon himself to get the ball rolling, much to the relief of a group of the boys supporters one of whom lost all faith in the defence team even prior to the verdict as well as Andy Hall of the MWRN who led the defence team in the trial run on funds donated from the public and came out in public support of the two men by demanding a fair trial.

“Most people who have followed this case believe that Zaw Lin and Wai Phyo are victims and have been used as scapegoats to cover up what really happened on the night of the horrific crimes, but few know our concerns over the defence team and the so called support from Andy Hall and his team” said one supporter who asked not to be named. “We have been concerned about the legal case for a long time, and with all of the evidence that is now in the public domain I think it is fair to say that people around the world are questioning how it was even possible for this case to be lost by the defence. We have two men on death row for committing crimes for which there was no motive, no witnesses, no CCTV footage, none of their DNA on the murder weapon and now we find the lab that provided the DNA evidence was not accredited with international standards, how is this even possible in a capital murder case?” she went on “this whole situation has gone from the sublime to the ridiculous, we have Andy Hall who has raised over 2

Andy Hall

Andy Hall

million baht for case costs but hardly any of those funds have been accounted for, he chose and led the defence team who are now widely believed to have done a terrible job and other than visiting the Burmese men once last July, once on the day before the verdict was read and only twice this year after being badgered my members of our team, once has to ask how much as a Human Rights activist he can be after only seeing the now convicted men four times in one year after his team let them down so badly. We are now starting to question what we are really faced with here, is this a cover up by the real perpetrators of the crime who are rumoured to have paid off everybody or the total incompetence of the defence team?” One thing we do know for sure is that Zaw Lin and Wai Phyo sit on death row, the worst possible outcome for once two optimistic men who were convinced the team representing them would prove their innocence. Far from that the team have bungled the entire defence, did not call a DNA expert who flew in from Australia to testify and now seemingly have completely omitted to call into question the qualifications of the DNA lab from where the death blow to the boys emerged. Andy Hall, while perhaps not being solely responsible for the outcome, did choose the legal team put in place to defend the boys, so he must take some responsibility for their diabolical performance but then as the some of the very same lawyers are representing him in his Natural Fruit case he must have put himself in a rather precarious position when attempting to lead the team, but having said that, then we are looking at a vast conflict of interest which means he should never have appointed that team in the first place or at least not have been in charge of the case. In my opinion there can only be a few reasons why the defence team performed this badly, they are either utterly, even unfathomably incompetent, are scared of the so called ‘men of influence’ on the islands, have been corrupted or simply do not wish to see the two men free or political, diplomatic or loss of face issues. The whole thing has become a total joke that would actually be funny if two Burmese men’s lives along with those of their families had not been decimated by this case. What it is doing to the families of the victims is beyond my comprehension”. She said.

It remains to be seen if the defence team will ever file the promised letter of complaint and of course if the outcome of the appeal that was only filed after the defence team asked for four one month extensions will do anything to help the hapless men in jail. The first appeal will be read by region 8, the same three judges who were happy to hand down the death penalty on a capital murder charged based on DNA evidence provided by a laboratory that did not, it now seems, have the required international accreditation. Beyond that of course there is the chance of a second appeal if the first one fails, this time at the Supreme Court, something to hold on to for the men but is possibly 5 to 8 years away. The member of one support group who spoke to us said “words simply fail me at this point, I just hope there is somebody out there who can find a way to clear this mess up for the sake of the two convicted men, the distraught families and friends of the victims and the sanity of those who continue to support the boys, but at this point have no idea what to even say to them, it’s a situation that could not be made up even in the minds of those with the wildest of imaginations, the whole thing is utterly unbelievable.”

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