Hannah Witheridge trial special report: The judges' ruling revealed and UK campaigner explains why he's backing the accused
PUBLISHED: 06:27 28 December 2015
DNA evidence proves 'beyond reasonable doubt' the two men found guilty of murdering a Hemsby woman and another British backpacker were behind the killings, the judges in the case ruled.
DNA evidence proves ‘beyond reasonable doubt’ the two men found guilty of murdering a Hemsby woman and another British backpacker were behind the killings, the judges in the case ruled.
Zaw Lin and Wai Phyo were sentenced to death on Christmas Eve after being found guilty of the brutal murders of Hannah Witheridge, 23, and David Miller, 24, on the Thai island of Koh Tao in September 2014.
The verdict sparked several protests over the weekend in Myanmar (formerly Burma), where the 22-year-olds were from, amid accusations they were framed, forced into an initial admission of guilt and then wrongfully convicted.
Meanwhile, the defence team in the case said work was already underway to launch an appeal within the next 30 days, which could take between six months to a year to be heard.
The pair were beaten to death with a garden hoe and their bodies left for dead on a beach on the island. Miss Witheridge, a former University of East Anglia and Langley School student, had also been raped.
This newspaper has obtained the four-page judgement of the Koh Samui Provincial Court, which claims DNA testing of the two migrants was obtained legally before their arrest and is ‘beyond reasonable doubt persuasive and proves the offenders’ identities’.
It adds: “The actions of both defendants are the offence of jointly committing murder for the purpose of concealing other offences.”
Phyo, also known as Win Zaw Htun, was also convicted of stealing Mr Miller’s sunglasses and mobile phone and entering and residing in Thailand illegally. The ruling says he admitted stealing the phone under interrogation, which also implicated him in both murders.
Throughout the trial, the defence argued the DNA evidence was tested behind closed doors and without the proper witnesses and documentation and could have been tampered with. DNA was also found on cigarette butts near to the scene, although both men have admitted they were smoking and drinking on the beach before the killing.
Dr Pornthip Rojanasunand, head of Thailand’s Central Institute of Forensic Science, raised further doubts of the legitimacy of the DNA saying: “Koh Tao island is very far away, so we lack the people and maybe we lack the knowledge, because we have a forensic doctor in Surat Thani [province] but I don’t know why the police officer didn’t call the forensic doctor.
“In this case it’s a protocol: in every country [where] there’s a murder case it’s necessary that the doctor has to be at the scene.
“Secondly, according to law, the crime scene investigator can collect the evidence as the police ask. So, as you see, [in this case it is] not independent, it’s dependent on the police officer.
“Lastly, there are limitations because of the conditions of the environment, and the staff of the forensic science couldn’t access the scene immediately at the time we found the bodies. For me, we need more evidence to confirm.”
Miss Witheridge’s family, who own several holiday parks in and around Hemsby, were not present in Thailand and did not comment directly on the verdict, instead paying further tribute to the ‘fun, vibrant and incredible young woman’. Mr Miller’s family said they had no doubts about the evidence, which they described as ‘absolutely overwhelming’.
Htoo Chit, of the Myanmar Workers Rights Association, said the pair initially confessed after being told by police they would only be jailed for four or five years, rather than killed.
Amnesty International has accused Thai authorities of failing to independently investigate allegations of torture of the accused, while Myanmar’s army chief General Min Aung Hlaing has asked Thailand for a “review of the evidence”.
Although Thailand retains capital punishment, executions are rare. Around 1,000 prisoners are currently on death row but no one has been executed in the country since 2009.
INTERVIEW WITH HUMAN RIGHTS CAMPAIGNER
Human rights activist Andy Hall is aware some may question why he’d become involved in the defence of the prime suspects in the deaths of two British backpackers.
But the 36-year-old says he held no such doubt, so strong are the flaws, he believes, in the case against the two men.
Mr Hall, who grew up in Spalding, Lincolnshire, has spent much of the past 12 years representing the human rights of migrants in Thailand, a country where they are often regarded as second-class citizens and subjected to cruelty and treatment.
But the decision to become involved in the case was not just based on the background of the two accused, but in light of the evidence presented to him, which he believes points to a miscarriage of justice.
He said speaking before Friday’s verdict: “A few days after the murder some people being interviewed said they were being abused. They said they were beaten and scalded with boiling water by the police in an attempt to try and find out what was going on. Later, the accused said the same thing, that they were beaten and tortured to confess to the crimes, which is when we got involved.
“We wanted to ensure they had a fair trial. They said they were not guilty but had been tortured to confess. If the prosecution had presented a sound case we would not be here doing this, it was very clear to me the case was not reliable.”
Mr Hall was one of a team of seven Thai lawyers and numerous translators, assistants and advisors working pro-bono to represent Lin and Phyo. They claim there was no way guilt had been ‘proven beyond reasonable doubt’. They say the questioning and charging of the accused was unlawful, the confessions came about only because of torture and abuse and therefore should be disregarded, there was a lack of DNA evidence linking the alleged murder weapon (a hoe) and the accused and that the DNA evidence was unreliable and should be disregarded. He also claims crucial bits of evidence, such as clothing, have gone missing.
Mr Hall said: ”When you meet them, you see they are just tiny boys. When you compare them in size to Hannah and David you have to question their ability to do what they’ve been accused of doing.”
He admits the pair were on the beach drinking, smoking and playing guitar on the night of the murder, but says when it happened they were already in bed.
A key element of the prosecution centred upon the discovery of a mobile phone and sunglasses near to where Phyo was staying,
Mr Hall said: “He couldn’t sleep, because when they were in the sea someone had taken his guitar so he went back out and it was then he found the phone.
“He took it back home, couldn’t unlock it and then the next day a friend said it could be linked to the murder, so they smashed it up. The prosecution said they took it from David’s trousers. But if he took the phone from David, where are the fingerprints? There were absolutely no fingerprints at the scene.”
It is clear Mr Hall believes investigators in the case where out of their depth dealing with such a high-profile case. He added: “The whole questioning process was bizarre. They questioned them without any charges and without being represented. The translators could only speak a little bit of Thai. Wai Phyo was questioned for five hours, but there was no video of that, just 12 minutes of video where he was being told what to do.
“They were made to do a re-enactment when they hadn’t even been charged. This is one of the most contested cases in Thai history, the police just don’t normally get scrutinised like this.
“But the whole case is not in accordance with international standards. It happened on an island in the middle of nowhere and clearly it was a real shock to them to have a case like this. They could have responded differently, brought in forensic experts from the mainland.”
But if the 22-year-olds didn’t kill the pair, who did? What of rumours the killing was orchestrated by a powerful family on the island?
Mr Hall says ‘it’s not for him to speculate’ on what happened on that fateful night and believes the truth may never be clear.
Political sensitivities between the United Kingdom and Thailand limited the impact Metropolitan Police detectives sent to review the evidence were able to have on the case, writes David Powles.
In the weeks after the murder, concerns were raised by several high-ranking British officials about the investigation. This led to a team of three, a Detective Chief Inspector and a forensics operations co-ordinator from the Met Police and an experienced officer from Norfolk Police, being sent out to review the case.
However, a letter obtained by this paper shows they were only allowed to play an ‘observer’ role.
The letter, from Hugh Giles, directorate of legal services at the Met and sent to the defence team as they unsuccessfully tried to obtain the force’s report, said: “They did not conduct any investigations...The Thai authorities permitted the UK police officers to have observer status only in relation to limited parts of the Royal Thai Police’s investigation and the UK police officers did not provide any advice or assistance.
“They did not take possession of any physical evidence, forensic evidence, exhibits, interviews or statements.“
It was after the visit and subsequent meeting with officers, both families issues statements saying they were ‘confident’ in the investigation.
Prime Minister David Cameron said in November 2014 that while he was ‘very concerned’ about the case ‘we can’t interfere with another country’s judicial system’. Foreign minister Hugo Swire and Mark Kent, the British Ambassador to Thailand, also raised concerns. The Met Police, Mr Swire and Mr Kent would not answer our questions. But a Foreign and Commonwealth Office (FCO) spokeswoman said: “We want to see whoever committed these murders brought to justice through a fair and transparent process. The British Government cannot interfere in Thailand’s judicial processes, just as other governments are unable to interfere in our own judicial processes.”
Final thoughts of reflection were felt in Hemsby, as locals gathered to say prayers for Hannah Witheridge in the aftermath of the trial over her and David Miller’s deaths.
Around 75 residents gathered for midnight mass, on Christmas Day, at St Mary’s Church in Hemsby, where a candle was lit and prayers were said in honour of Miss Witheridge.
They were followed by further prayers at the church during regular Sunday service, yesterday morning.
Reverend Selwyn Tillett - who led the services - had not yet moved to Hemsby at the time of Miss Witheridge’s death, but said that she was much missed.
He said: “My thoughts as well as I am sure everybody else’s in the parish, are with the Witheridge family at this time and we will be holding them in our hearts.”