Defence in Hannah Witheridge murder trial reiterates its case two days before verdicts are due

Hannah Witheridge and David Miller. Photo: PA/PA Wire

Zaw Lin and Wai Phyo (also known as Win Zaw Htun) are due before the courts in the early hours of Christmas Eve morning over the alleged rape and murder of 23-year-old Miss Witheridge and the murder of David Miler, 24, on Koh Tao Island, in Thailand.

The bodies of the British backpackers were found on a beach on the island in the early hours of September 15, 2014. The murder weapon, a garden hoe, was found nearby.

A post-mortem found that Miss Witheridge, 23, had died of head wounds and Mr Miller, 24, severe blows to the head and drowning.

The verdict comes more than two months after the trial ended, following 21 days of witness hearings. If found guilty, the 22-year-olds could face the death penalty.

Hannah Witheridge. Photo: Submitted/Archant (Image: Archant)

The prosecution claims the backpackers were brutally murdered and their bodies left for dead on the beach. They point to cigarette butts linking the men to the scene and Mr Miller's mobile phone and sunglasses being found dumped near to where Wai Phyo was staying.

However, the team of pro-bono lawyers working under the Lawyers Council of Thailand (LCT) to defend two Burmese migrant workers says the murder investigation was widely criticised both domestically and internationally due to alleged mishandling of forensic evidence and alleged torture of the two accused and migrant workers, who initially confessed to the killings, then retracted their statements.

A statement from the defence team today said: 'On 14th October 2014, at a first advance witness hearing in the case, both accused then retracted their confessions to LCT lawyers.

'Later on defense lawyers received information that the two accused alleged beatings and torture were used during their detention, prior to sending on for questioning by investigation officials, to elicit their confessions made involuntarily.

Suspects alighting from the prison vehicle. Picture: Sarah Yuen (Image: Sarah Yuen)

'The Migrant Worker Rights Network (MWRN) and rights groups called on the LCT to provide trained lawyers for the accused to ensure they could adequately defend themselves against all the charges so as to ensure a fair trial and also importantly to guard against a potential miscarriage of justice in such a highly publicised and tragic case.

'Two month's delay in prosecuting the accused resulted from extensive media and diplomatic attention towards the case in addition to calls for justice by the accused, their families and the wider public.

'This resulted in further questioning of the accused that confirmed both maintained complete innocence and insisted their confessions came about involuntary as a result of torture.

'A closing statement submitted in October 2015 to Koh Samui Court outlined in detail key planks of the defense team's arguments, presented during testimony of its 13 witnesses in court, concerning to what extent the defense witnesses should be seen as credible by the court.

'The closing statement considered the testimony of the prosecution witnesses so as to compare the reliability of this witness testimony alongside that of the defense witnesses also for the court's benefit in issuing a judgement on the case.

'The statement highlighted as follows:

(1) The case questioning and charging of the accused prior to prosecution was unlawful. The accused questioning after arrest and the process of notifying them of the charges against them were incorrect. The accused were questioned as 'witnesses' but it turned out as a confession that stated they confessed to murder and rape. The accused were questioned without lawyers or trusted persons present. The accused were not read their rights as criminal suspects or explained the nature of offences they were charged with. Neither were the accused provided adequate translation and legal representation as required by law and as was reasonable in the circumstances. The accused's DNA samples were taken from them involuntarily and are hence inadmissible as evidence in court.

(2) The accused's original confessions during questioning cited by the prosecution in court came about involuntarily from torture or abuse that made them fear for their lives and safety in the context of a wider case investigation when migrant workers reported systematic abuse on Koh Tao Island. These written confessions, even if they had been signed, shouldn't be considered by the Court. Other documents that were also written for the accused and which they involuntarily signed not even understanding what they were signing likewise shouldn't be considered by the court. The videoed or staged re-enactments undertaken by the accused and submitted by the prosecution to the Court were likewise involuntary, staged under threat of violence and shouldn't be considered or should be inadmissible as evidence in court.

(3) There is no link between the alleged murder weapon (a hoe) and the accused. DNA samples from the hoe don't match the accused DNA profiles but instead match the DNA profiles of other individuals.

(4) The DNA evidence allegedly matching the accused as well as all surrounding or circumstantial evidence in this case apparently showing the guilt of the accused is unreliable and should be inadmissible and not considered by the Court. All of this evidence was not collected, tested or analysed in accordance with internationally accepted standards such as ISO 17025. This evidence should not be considered as satisfying beyond reasonable doubt that the accused violently raped and murdered the female deceased or murdered the male deceased. This includes all evidence linking the accused to the alleged crime scene such as cigarette butts, theft of the male deceased's mobile phone and sunglasses as well as a 'running man' caught on CCTV.

(5) The prosecution case is marked by an absence of significant evidence needed to prove the guilt of the accused for crimes they are charged with. This absent evidence includes photographs of the crime scene, autopsy and DNA analysis processes, chain of custody documents for forensic evidence, certain forensic evidence documents as well as detailed DNA analysis laboratory case notes. In addition, the clothes and the body surface of the female deceased expected to contain significant traces of DNA of the perpetrators were either not tested at all or tested but not included in the prosecution file or case evidence list. CCTV footage provided by the prosecution seemed to be incomplete and no fingerprint or footprint evidence was presented as part of the prosecution case.'

See tomorrow's paper for a special report on the case ahead of Thursday's verdict.