In Thailand in October 2014 Zaw Lin and Wai Phyo, Burmese migrant workers were arrested for

The joint murder of David Miller

The joint murder of Hannah Witheridge

The joint rape of Hannah Witheridge

The theft of a mobile phone – Wai Phyo

The theft of sunglasses – Wai Phyo

Immigration offences by both defendants

Zaw Lin and Wai Phyo initially confessed to these crimes having been called in as witnesses by the local Koh Tao police. Both defendants had no legal representation during their interviews with the police and allege they were tortured into confessions they recanted as soon as they had access to legal representation in the Koh Samui Provincial Prison. They have maintained their innocence to this day. The men lost their region 8 appeal and their appeal to the Supreme Court of Thailand and their death penalty convictions have been upheld. They are now facing execution by lethal injection. Their legal team and the Myanmar Government are preparing appeals to the Thai King to have their sentences commute to life in prison.

A great many facts do not add up in this case.

Pol Col Panya Maman initially arrested Montriwat Toovichien for these crimes. He also wanted to arrest Nomsod Toovichien but he had fled the island.

Pol Col Panya Maman was taken off the case and the charges against Montriwat and Nomsod Toovichien were dropped. When Pol Col Somyot took over the case Zaw Lin and Wai Phyo were accused of the crimes.

Zaw Lin and Wai Phyo got up for work as normal the day after the horrific crimes and were noted to have had no change in personality.

Neither man tried to leave the island in the days after the crimes while they were both still completely unknown and had not been linked the crimes. They had every opportunity to do so.

The men had no motive to rape and kill Hannah Witheridge or kill David Miller.
Wai Phyo said he found the phone that turned out to belong to David Miller on the beach.

There were no witnesses to these crimes.
Wai Phyo and Zaw Lin have no previous convictions or criminal history.

Wai Phyo and Zaw Lin are extremely small in stature and it is unlikely they could have overpowered both David Miller and Hannah Witheridge.

Neither the DNA of Zaw Lin or Wai Phyo was found on the murder weapon.

The crimes were very badly investigated by the local police who failed to secure the crime scene and allowed Montriwat Toovichein to walk all over it as well as members of the public who took photographs of the bodies and posted them to social media.

During the trial the prosecutor, judges and interpreters were seen to be sleeping.

The men were represented by a legal team headed by a civil, not criminal lawyer.

Zaw Lin and Wai Phyo’s lawyers, having lost the trial and both appeals are now hoping for a life sentence.

The international community and hundreds and thousands of followers of this case believe the men are scapegoats and completely innocent of these crimes.

We ask you to join us in signing this petition to the King of Thailand to not only stop their executions but to allow a re-trail.

A guilty verdict must leave no reasonable doubt. How is there no reasonable doubt when the now convicted men’s DNA is not even on the murder weapon and there is not a single witness to these crimes?

We believe the men were not well represented in this trial, they had no power to choose their one defence team and it is our belief the defence was compromised early on in the trial.

Please join the international community by signing this petition and in doing so agreeing to the need for a retrial in this case.

Zaw Lin and Wai Phyo deserved a fair trial, they did not get one and from their death row cells in the Bangkwang Central prison request your help.

A life sentence is not justice!

Please share this petition with as many people as you can. To be effective we need millions of signatures from every corner of the globe.

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                                     Petition to the King of Thailand

                              His Majesty the King Maha Vajiralongkorn

Members of the international community are concerned that Myanmar nationals Zaw Lin and Wai Phyo did not receive a fair trial for the rape and murder of British national Hannah Witheridge and the murder of British national David Miller, crimes for which they have been sentenced to death.

Zaw Lin and Wai Phyo lost both of their appeals and their lawyers are appealing to you, the King for clemency to reduce their death sentence to a sentence of life in prison.

Our concerns are echoed and highlighted by the Solicitors International Human Rights Group who wrote a report on their observations of the trial. Our concerns and their observations of the now convicted men’s trial in the Koh Samui Provincial Court between July and December 2015 are set out below.

We are concerned that the two men’s rights to

1.       Question and call witnesses

2.       Be treated with dignity in pre-trial detention

3.       To disclosure of relevant documents

Appear not to have been complied with adequately and this may have compromised the right to prepare a defence and the related right to adequate time to prepare a defence.

The excessive length of most court sittings is likely to have impacted on a number of rights because of the fatigue that was observed to cause a range of participants in the trial. Fatigue was most probably being felt by participants in the trial even if it was not manifest. The court was frequently sitting for more than ten hours a day. The rights affected by excessive long sittings are

1.       The right to prepare the defence when the court was sitting on successive days.

2.       The right to adequate legal representation.

3.       The right to sufficient questioning of witnesses.

4.       The right to an adequate interpreter,

5.       The right to be “present” at one’s trial.

The following rights were not complied with:

1.       The right to an independent lawyer whilst in investigative detention at the police station.

2.       The right to be treated with dignity at all times during the trial.

The following rights were not fully complied with:

1.       The right to a public hearing was qualified by the Court’s prohibition on any note taking by media, observers or members of the public.

 

We also note that the right to be presumed innocent was not expressed to be the court’s starting presumption in the final judgement.

It was noted, when observing CCTV footage one judge told the defence that they would need clean up the footage before presenting it on appeal. This comment was made prior to the men being convicted.

We would like to note that capital punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts. We do not believe that to be true in this case.

 

In this case the bodies of the two victims Hannah Witheridge and David Miller were sent to the Police National Headquarters in Bangkok for examination. Apart from the DNA of Ms Witheridge  the DNA of another was found in her vagina (presumed it seems, from semen) and the DNA of two others, apart from Ms Witheridge, was found in her rectum (presumed, it seems, from semen).

Police Colonel Watee Atsawutmangkur, a scientist and director of the Blood Biochemistry and Gunshot Residue Analysis Unit, Forensic Institute, Thailand National Police Department, testified that the DNA found in semen from Hannah Witheridge’s vagina matched Wai Phyo’s DNA, and the DNA found in the rectum matched the DNA of both Defendants. The basis of the expert’s belief that the DNA was from semen is not apparent from documents seen.

The Defendants, who initially confessed to the crime, retracted their confession as soon as they had any form of legal representation, alleging that their confessions were born out of torture at the hands of the police.

The prosecution claimed that the Defendants first confessed when being questioned as witnesses after a Burmese national Mau Mau told the police the defendants were on the beach on the night in question. If only being questioned as witnesses one presumes that as a potential prosecution witnesses (why not prosecution at this stage?), Zaw Lin and Wai Phyo would have been treated with a degree of respect and not necessarily afforded to rape and murder suspects. It is curious, to put it mildly, that without any undue pressures being applied to them, they should voluntarily confess to very serious crimes. One may also safely assume that they did so knowing, as any sane person would, that such crimes would attract at least very lengthy terms of imprisonment. It does seem hard to believe that under such circumstances free confessions to the most serious crimes would be given. The circumstances suggest that some irresistible pressure was applied to them to obtain such otherwise remarkable confessions.

During the investigation stage the Defendants were not provided with independent legal assistance in clear contravention of the Thai Criminal Code. After they had been questioned and incriminated themselves they were further questioned in the presence of a lawyer. Each questioned in the presence of the same lawyer. This lawyers role is described as being to ensure the legality of the process. The appointment was not to provide “legal assistance” to the Defendants. More it was to authenticate what the police were doing, which is a different role. The lawyer was not assigned as the “defendants lawyer”.  

 

During the trial the defendants denied any involvement in the crimes or with Hannah Witheridge. The court believed this to be a lie. However the denial might not be a lie if their DNA was planted in Ms Witheridge. Or by some other fraud their DNA was supplanted for the actual samples taken. Whether it was right to accept that the biological source of the DNA was semen remains open to question. If so open to question it may cast doubt upon the convictions of rape.

The Defence argued that various international forensic standards applicable to DNA cases were not met. Each failure should have cast doubt on the opinion evidence of the prosecution’s DNA expert. The apparent failures by the Prosecution to disclose documentation about the DNA handing and testing to the defence at all or in sufficient time for the defence to be prepared is of great concern. If any police or laboratory frauds or mistakes had indeed taken place they have been successful in misleading the Court.

Our concerns include hand written alterations to DNA documents and the fact that it is not acceptable for scientists to express 100% certainties, even in DNA cases, as occurred here. Rather, reasoned match probabilities should be provided.

It is scientifically impossible that a mixed sample consisting of DNA from Hannah Witheridge, Zaw Lin and Wai Phyo could be a 100% match to any one person.

Jane Taupin, an Australian expert on DNA flew to Koh Samui to testify at the trial.

Jane Taupin is one of the world’s foremost experts on DNA profiling and has worked as an internal laboratory auditor. She has also written books on the use of forensic evidence in courtrooms. Her testimony, with regards to the DNA which the prosecution was relying upon to find the men guilty would without a doubt changed the outcome. 
She had noted that the DNA evidence had handwritten alterations on it and was not stamped with the laboratory stamp which would have been present had the DNA been tested in a laboratory which complied with international testing standards.

Despite Andy Hall asking Jane Taupin to attend the trial to support the defense lawyer’s case, she was never called to the stand and the defense lawyers chose not to highlight her findings. We find the move not to call her highly suspicious.

By way of explanation with regards to DNA we would like to point out that in news reports Jane Taupin said “Crime scenes are notoriously difficult to gather quality DNA samples from. Cases like the one on Koh Tao, which deal with mixed samples, are fraught with danger: complex and sometimes unreliable statistical calculations must be carried out to determine the probability that someone other than the accused could match the recovered sample.

Yet no statistical analysis was made available to the defense team or the court.

Instead, the judges were simply told by prosecution witnesses the evidence “confirmed” that DNA recovered from the crime scene belonged to the two accused, a claim Ms Taupin said is not strictly possible to make; instead, a probability ratio must be given. “Whatever way you want to determine the statistics, they’ve got to be validated in your laboratory, and you’ve got to have them [probability ratios]. But Thailand doesn’t have them. Not at all,” she said.

“DNA profiling is predicated on statistics, that’s the whole point. You don’t just say it’s a match — it’s not fingerprinting … You need to give significance to that match.”

Mr Andy Hall of Migrant Watch (an NGO that provided material assistance to the Defense) contends that a raft of official requests lodged with the prosecution and the Court for documents were not met or were met late in the day. If this was so and those documents either were later relied on by the prosecution at trial or otherwise might have assisted the defense to prepare a defense, the Human Rights Solicitors condemn those failures to disclose. They state “it is not entirely clear to us what non disclosed material or late disclosed, if any, handicapped the development of appropriate lines of enquiry for the defense.

We are also concerned that some of the judges in the Koh Samui Provincial Court clearly placed little if any weight upon the demeanor of some witnesses. This was evidenced by the fact that on occasions during the trial a judge left the courtroom all together. It was observed that the policeman sitting in the front row of the public gallery, in clear line of sight of the judges was not challenged by a judge, as all other persons had been, when he sat cross legged. Interpreters, lawyers and judges were often noted to be dozing. There were occasions when the defense lawyers requested the judges to rise for the day (or night actually), so they could get a decent night’s sleep and prepare. Such requests were denied.

The trial timetable had been determined at pre-trial hearings. Even if it is right to assume that the parties had agreed to the timetable before the trail started the defense’s concent to the timetable does not excuse the excessive length of the court sittings. Judges must ensure sittings are not of excessive length and that lawyers have adequate time to prepare between successive days’ court sittings.

The trial was not compliant with the right to be “present” because most sitting days were of excessive length. As a consequence the rights of the Defendants to follow proceedings, to adequate representation and interpretation were likely to have been compromised to their detriment.

The full right to question witnesses is likely to have been compromised by the excessively long court sittings that most probably impacted on the mental ability of the defense lawyers to maintain appropriate levels of alertness and indeed witnesses to answer questions accurately.

Some cross examinations appeared to be perhaps rather brief. The adequacy of the representation is likely to have been compromised by the excessively long court sittings that most probably impacted on the mental ability of the lawyers to maintain appropriate levels of alertness.

Furthermore at various times the available seating in the public gallery (seating on the same floor as the advocates etc) was not adequate for attending family, general public and media interest in the case. 

It is highly regrettable that the Court did not permit the Human Rights Lawyers to make contemporaneous notes during their observation of the trial. This was a blow to their mission and brought into question whether they should even attend. Jastine Barrett pressed the matter via the Court Clerk on the first day of the trial and was rebuffed with the message that the judge did not want any report containing inaccurate information being published before the end of the trial. Observers Nigel Dodds and Alexandra Zernova pressed further oral applications to the Court to permit them to make notes but the judges declined. In doing so the judges failed to appreciate the wider interest of a trial observer.

In Courts who meet acceptable international standards there can be no objection to note taking in the public gallery.

We are concerned about the use of shackles that were very uncomfortable for the Defendants, especially as they faced very long court hearings on most days of the trial. The use of shackles in this way contravenes the Rights in Administration of Justice Section 39……Before the passing of a final judgment convicting a person of having committed an offence, such persons shall not be treated as a convict.

It would be highly inappropriate to parade defendants before a jury in this way. Apart from the indignity it would be highly suggestive of guilt. It was in this case inappropriate to parade the Defendants before press and public shackled in the way they were.

With regard to the presumed innocence of the defendants the judgment fails to mention the burden of proof or the standard of proof. It does not state that the burden of proof falls on the prosecution and it fails to state that the standard of proof is the high standard in criminal cases. It certainly fails to mention the apparently higher stringency indicated by the UN Death Penalty Standards.

In cases of trials leading to the imposition of the death penalty scrupulous respect of the guarantees of a fair trial is particularly important. The imposition of a sentence of death upon conclusion of a trial, in which the provisions of article 14 of the convenient have not been respected, constitutes a violation of the rights to life (article 6 of the covenant)

The defendants are entitled to a reasoned judgment that sets out not just the factual reasons that led the court to its decision but a clear explanation of the essential framework of decision making. In a criminal case that includes the burden of proof. The failure of the Court to address these issues in the judgment is a serious error.

The Human Rights Solicitor note

The uncertainty of funding sources for the defense to match the resources of a Thailand State prosecution means that whether “equality of arms” is achieved in Thailand in any given case is quite a random affair.

And

There was a clear breach of the right to independent legal advice at the investigation stage.

The geographical distance between the lawyers and their clients reduced the opportunities to meet.

We doubt very much that the Defendants exercised any realistic power over the appointment of their lawyers.

With regards to the excessively long sittings: The Thai Criminal Code enjoins “regular” and “fair” with “expeditious. We could pose the point this way. Would it have been “due delay” to extend the timetable of the trial to ensure court sittings were not excessively long? Could the Court not have postponed the hearings of other cases in the Courts list to accommodate additional hearing dates within the pre-arranged timetable in order to reduce the average hours of each sitting? No doubt pre-booked flights for the Bangkok based defense lawyers would have been a factor militating against any changes at short notice. The flight route is a relatively expensive one due to high tourist demand.

It would be very rate indeed for a jury to be subjected to sittings exceeding 6 or 7 hours. Professional judges cannot necessarily endure sittings much greater in length. Though the deposition taking procedure mitigates occasional lapses of judicial concentration it is not a solution for other participants struggling to concentrate for more than ten hours a sitting.

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In signing this petition we state that we believe that the two defendants should have been provided with genuine independent legal advice when at the police station at the earliest stage.

We believe the excessively long court sittings harmed the men’s right to a fair trial.

We believe the excessive long court sittings impacted negatively on the right to representation, the right to an interpreter, the right to be present, the right to question witnesses and the right to prepare a defense.

We believe the prosecution and defense were not funded on an equal basis.

We believe to ensure the right to a public hearing, observers such as media should have been allowed to take contemporaneous notes.

We believe the men did not have any realistic powers over the appointment of their lawyers.

We believe the DNA evidence used to convict the men on a 100% match is highly unsafe and scientifically impossible.
We are gravely concerned that the men have been found guilty and sentenced to death for murdering Hannah Witheridge and David Miller when their DNA was not found to be present on the murder weapon, a garden hoe that was removed from the crime scene by its owner and later put back at the request of the police.

We are gravely concerned that the men have been found guilty of these crimes and sentenced to death when there was not a single witness to the crimes.

We are gravely concerned the men have been found guilty of these crimes and sentenced to death without any criminal psychological profiling evidence that would have suggested it is very rare for men such as Zaw Lin and Wai Phyo with no criminal history to commit crimes of this magnitude and ferocity.

We are gravely concerned that the men were not adequately represented in court and that the lead lawyer is a civil, not criminal lawyer and may have been misrepresented.

We are gravely concerned that the men had no apparent motive for these crimes and have consistently, since having legal representation, maintained their innocence.

We are gravely concerned that the stature of these men makes it very unlikely they would have been able to overcome and murder both Hannah Witheridge and David Miller.

As King of Thailand and an educated and learned man we know the facts in this petition will also concern you. We know the continued good reputation of your country is highly important to you. We know that as a good and honest King you will want to see proper justice for victims especially in such a high profile case such as this. We know that diplomatic relations are of vital importance to Thailand, the UK and Myanmar and you will not allow the respect these countries hold for each other to be tarnished by an unsafe conviction.

We respectfully request that you consider our concerns in this case and allow for a retrial as is only fair and just, as only a fair and just King would consent to.

With the greatest respect

The International Community

This is a table of the sitting lengths. The lunch hour is not computed in the table.

This is a table of the sitting lengths. The lunch hour is not computed in the table.

Day   Date        Start         End      Hours    Observer
1    08/07/2015    9:10      19:45    10:35     J Barrett
2    09/07/2015    9:15      18:30     9:15      J Barrett
3    10/07/2015    9:10      20:15    11:05     J Barrett
4    22/07/2015    9:00      20:30    11:30     Interpreter
5    23/07/2015   14:30     18:30      4:00     Interpreter
6    24/07/2015    9:00      17:00      8:00     Interpreter
7    18/08/2015    9:00      19:45    10:45     N Dodds
8    19/08/2015    9:05      20:45    11:40     N Dodds
9    20/08/2015    9:00      20:50    11:50     N Dodds
10   21/08/2015   9:10      15:30      6:20     N Dodds
11   27/08/2015   9:15      21:12    11:57     N Dodds
12   28/08/2015   9:12      18:30      9:18    N Dodds
13   01/09/2015   9:15      23:59   14:44     N Dodds
14   02/09/2015 10:25     18:50     8:25      N Dodds
15   11/09/2015   9:00      16:20     7:20     L Blackman
16   22/09/2015   9:15      18:15     9:00     A Zernova
17   23/09/2015   9:15      21:15   12:00     A Zernova
18   24/09/2015   9:15      17:30     8:15     A Zernova
19   25/09/2015   9:10      20:30   11:20     A Zernova
20   10/10/2015   9:30      23:20   13:50    A Zernova
21   11/10/2015   9:35      22:30   12:55     A Zernova