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| Wai Phyo, left, and Zaw Lin on Oct. 3, 2014, shortly after their arrest on Koh Tao. |
The legal defense team representing the 2 Burmese migrant workers sentenced to death for the 2014 murder and rape of 2 Britons in Thailand's Koh Tao island, will next file an appeal with the Thai Supreme Court, after being rejected in the appeal court.
U Kyaw Thaung, a member of the men's defense team, said, they have been discussing when to submit the next appeal, to Thailand's highest court. "We will do so within the next week," he told The Irrawaddy.
The defense team said they were not formally informed about the ruling in this very controversial case, in which the 2 men, Win Zaw Htun and Zaw Lin, received the death penalty for charges they have denied, involving the deaths of British nationals Hannah Witheridge, 23, and David Miller, 24.
The verdict was handed down by the Koh Samui Township Court in December 2015, and the 2 men lost their appeal to the District Court of Appeal in March 2017.
The appeal was nearly 200 pages long and argued that the DNA evidence which led to the conviction was inadmissible and had not been "collected, tested, analyzed or reported in accordance with internationally accepted standards," Reuters reported.
U Htoo Chit, the director of the Foundation for Education Development - an organization providing outreach to migrant workers in Thailand - said, "the Lawyer's Council of Thailand - the legal body assisting the Burmese defense team - was not officially informed about the verdict of the appeal. But we will consult with the defense lawyers to keep our appeal in accordance with the Thai judicial system."
"Also we learned that Win Zaw Htun and Zaw Lin were not properly informed through the translator, either," he added. "But the District Court of Appeal upheld the verdict of the [Koh Samui] township criminal court ruling."
It was not clear when the Appeal Court's verdict was made, but it was known publicly after being published in Thai media on Wednesday afternoon, said the defense team members.
Police Trump Card in Koh Tao Murders Case Is Just a Bad Joke -- Raises Serious Concerns About Police Lab and Scientific Testing in Thailand
On Christmas Eve 2015, the criticisms and protests intensified when the Koh Samui Provincial Court found two small Burmese migrant workers guilty of the rape of Hannah Witheridge and guilty of her murder and the murder of David Miller. The two men, Zaw Lin and Wai Phyo who were apparently of good character and who had no previous criminal records were sentenced to death. Many observers regarded the men as scapegoats and even as “the two most famous scapegoats on Earth.”
The prosecution case against the defendants appeared to be accusation driven rather than evidence based.
Khaosodenglish reported on the judgment in a story with the headline: “KOH TAO MURDERS: COURT SAYS DNA TRUMPS OTHER FLAWS IN CASE”.
Without the DNA evidence in the form of a table provided by the police laboratory*, that supposedly matched a mixed DNA sample allegedly obtained from Hannah’s body to the DNA of the defendants there would have been no conviction. However, that DNA evidence, that “trump card” has all the hallmarks of being fake.
Of course, it must always be kept in mind that the burden of proof in criminal trials lies with the prosecution – an inconvenient concept that often appears to be dispensed with in the Thai justice system. The burden was on the prosecution to show that its DNA evidence was reliable. The burden was never on the defence to prove that the DNA evidence was fake.
There are four aspects of the nature of this fake trump card that can be touched upon in this brief article.
Firstly, it appears that the Samui court was misled about the true status of accreditation of the police laboratory. In the judgment (see Thai page 38 in this translated version: https://assets.documentcloud.org/documents/2706254/FINAL-KOH-TAO-JUDGEMENT-English.pdf ) it states that the defendants’ witness, Dr Worawee Wiyawuth testified that his laboratory and the police laboratory are both accredited under ISO 17025. That statement was made in the present tense. That statement makes no reference as to whether the police laboratory was accredited for the scope of the relevant testing at the time the testing was conducted.
I have made extensive efforts since January 2016 to get some definitive answers regarding that DNA evidence and the accreditation of the police laboratory. The “Accreditation Body” that gave accreditation to the police laboratory is known as the “Bureau of Laboratory Quality Standards” (“BLQS”). On 13 January 2016 I wrote to its Director, Khun Suthon Vongsheree but only received a reply some 132 days later after Mr Michael Fraser, Secretary of the Asia Pacific Laboratory Accreditation Co-operation (“APLAC”) intervened on my behalf. (BLQS is one of three Thai Accreditation Bodies with Mutual Recognition Arrangements with APLAC.)
In response to my emails, I have been advised by Khun Suthon in writing that the police laboratory did not get the relevant accreditation until 29 January 2015 or 4 months after the testing in the Koh Tao case. As recently as 21 November 2016 Mr Fraser of APLAC has confirmed in writing that this is the case: “…because the test facility was not accredited for the tests conducted at the time of testing the specimens by BLQS, …. APLAC has no further role in this matter.”
So, according to both BLQS and APLAC the police laboratory lacked the ISO 17025 accreditation to perform the DNA tests at the relevant time. If that is true then it would certainly appear that the court was misled even if the witness did not expressly lie but merely answered the questions put to him. However, if the BLQS advice is correct then the police and prosecutor must have known this and should certainly not have said or done anything to mislead the court.
It seems from the judgment that an important reason the court accepted the police DNA evidence is that the court was under the apparently false belief that the Thai police laboratory had internationally recognized accreditation. Had the court not been misled then it would have been in a better position to reject the police DNA evidence.
Naturally the standard of the testing in this case is more important than the issue of whether or not the police laboratory had the appropriate accreditation. However, it seems clear that in accepting (apparently incorrectly) that the appropriate accreditation was in place the court was led to believe that the testing was of a high standard when it was not.
If the BLQS advice is correct, then it would be relevant to the appeal process in the Koh Tao case and possibly to the grounds of seeking a retrial.
Secondly, Dr Worawee is reported in the same paragraph of the judgement (at Thai page 38) as saying that both his laboratory and the police laboratory operate in keeping with international standards.
One trial observer told me that this is not precisely what Dr Worawee said. The observer said that when questioned Dr Worawee testified that he did not know whether the police laboratory operated in keeping with international standards in the Koh Tao case but that generally it did operate in keeping with international standards. It is a vital distinction. Unfortunately, the trial observer who told me this is the former barrister, Robert Holmes and one is obliged to discount the accuracy of his statements in view of his history of dishonesty and multiple convictions for fraud in Queensland. However, there might more reliable trial observers who do recall what Dr Worawee said in court.
Thirdly, Jane Taupin who is the Australian DNA expert who flew to Koh Samui at Andy Hall’s invitation, immediately noted when she saw the DNA table that it did not have a stamp or endorsement to indicate that the police laboratory was accredited by an Accreditation Body such as BLQS. Ms Taupin has told me that she has never attended a trial anywhere in the world where a prosecutor attempted to have such an “unendorsed report” entered into evidence.
I have discussed the significance of this unendorsed report with Ms Jennifer Evans who is the Secretary of the International Laboratory Accreditation Cooperation (“ILAC”) and Quality Manager for APLAC. Ms Evans advised that such an unendorsed report might have been produced by a laboratory that lacked accreditation or by an accredited laboratory, which might or might not have produced the unendorsed report under the auspices of the ISO 17025 accreditation.
Nevertheless, if the police and prosecutor had been serious about securing a sound conviction and had the police laboratory held the appropriate accreditation at the material time then one would expect that they would cover all their bases by tendering only endorsed reports.
Fourthly, in the same paragraph of the judgment (at Thai page 38) the court states: “..the testing is deemed credible and trustworthy, despite the fact that the plaintiff’s examination results did not present a chain of custody document ..” With the utmost respect to the court, the testing is worthless unless the police can demonstrate a chain of custody. Without a chain of custody no independent examiner can know where the samples came from. It also demonstrates that the testing was not performed under the auspices of ISO 17025. The court’s statement is akin to saying that a car without an engine and wheels is still a reliable car that can be driven without assistance. The engine and wheels are essential for the car as is the chain of custody in the Koh Tao case.
The court went on to state that: “It does not contribute to inaccurate or incorrect results ..” With the utmost respect to the court, without a chain of custody one has a situation where samples can easily be substituted or mixed up whether deliberately or by accident.
These four aspects of the nature of the fake trump card, the highly dubious nature of the DNA evidence are by no means exhaustive. There are other articles that discuss the defects in the DNA evidence in varying degrees of depth ie. http://thailandjustice.com/koh-tao-appeal-case-information-information-defense/
http://www.samuitimes.com/koh-tao-murders-appeal-reveals-shocking-new-evidence-suggesting-unfair-trial-and-wrongful-convictions/
So, according to both BLQS and APLAC the police laboratory lacked the ISO 17025 accreditation to perform the DNA tests at the relevant time. If that is true then it would certainly appear that the court was misled even if the witness did not expressly lie but merely answered the questions put to him. However, if the BLQS advice is correct then the police and prosecutor must have known this and should certainly not have said or done anything to mislead the court.
It seems from the judgment that an important reason the court accepted the police DNA evidence is that the court was under the apparently false belief that the Thai police laboratory had internationally recognized accreditation. Had the court not been misled then it would have been in a better position to reject the police DNA evidence.
Naturally the standard of the testing in this case is more important than the issue of whether or not the police laboratory had the appropriate accreditation. However, it seems clear that in accepting (apparently incorrectly) that the appropriate accreditation was in place the court was led to believe that the testing was of a high standard when it was not.
If the BLQS advice is correct, then it would be relevant to the appeal process in the Koh Tao case and possibly to the grounds of seeking a retrial.
Secondly, Dr Worawee is reported in the same paragraph of the judgement (at Thai page 38) as saying that both his laboratory and the police laboratory operate in keeping with international standards.
One trial observer told me that this is not precisely what Dr Worawee said. The observer said that when questioned Dr Worawee testified that he did not know whether the police laboratory operated in keeping with international standards in the Koh Tao case but that generally it did operate in keeping with international standards. It is a vital distinction. Unfortunately, the trial observer who told me this is the former barrister, Robert Holmes and one is obliged to discount the accuracy of his statements in view of his history of dishonesty and multiple convictions for fraud in Queensland. However, there might more reliable trial observers who do recall what Dr Worawee said in court.
Thirdly, Jane Taupin who is the Australian DNA expert who flew to Koh Samui at Andy Hall’s invitation, immediately noted when she saw the DNA table that it did not have a stamp or endorsement to indicate that the police laboratory was accredited by an Accreditation Body such as BLQS. Ms Taupin has told me that she has never attended a trial anywhere in the world where a prosecutor attempted to have such an “unendorsed report” entered into evidence.
I have discussed the significance of this unendorsed report with Ms Jennifer Evans who is the Secretary of the International Laboratory Accreditation Cooperation (“ILAC”) and Quality Manager for APLAC. Ms Evans advised that such an unendorsed report might have been produced by a laboratory that lacked accreditation or by an accredited laboratory, which might or might not have produced the unendorsed report under the auspices of the ISO 17025 accreditation.
Nevertheless, if the police and prosecutor had been serious about securing a sound conviction and had the police laboratory held the appropriate accreditation at the material time then one would expect that they would cover all their bases by tendering only endorsed reports.
Fourthly, in the same paragraph of the judgment (at Thai page 38) the court states: “..the testing is deemed credible and trustworthy, despite the fact that the plaintiff’s examination results did not present a chain of custody document ..” With the utmost respect to the court, the testing is worthless unless the police can demonstrate a chain of custody. Without a chain of custody no independent examiner can know where the samples came from. It also demonstrates that the testing was not performed under the auspices of ISO 17025. The court’s statement is akin to saying that a car without an engine and wheels is still a reliable car that can be driven without assistance. The engine and wheels are essential for the car as is the chain of custody in the Koh Tao case.
The court went on to state that: “It does not contribute to inaccurate or incorrect results ..” With the utmost respect to the court, without a chain of custody one has a situation where samples can easily be substituted or mixed up whether deliberately or by accident.
These four aspects of the nature of the fake trump card, the highly dubious nature of the DNA evidence are by no means exhaustive. There are other articles that discuss the defects in the DNA evidence in varying degrees of depth ie. http://thailandjustice.com/koh-tao-appeal-case-information-information-defense/
http://www.samuitimes.com/koh-tao-murders-appeal-reveals-shocking-new-evidence-suggesting-unfair-trial-and-wrongful-convictions/
Source: Samu Times, Ian Yarwood, March 1, 2017. Mr. Yarwood is a barrister and a solicitor in Perth, Australia.
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