Title : Koh Tao murders: “Should the co-defendants have received separate legal representation?”
link : Koh Tao murders: “Should the co-defendants have received separate legal representation?”
Koh Tao murders: “Should the co-defendants have received separate legal representation?”
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| Burmese migrant workers Wai Phyo (left) and Zaw Lin |
It is widely accepted that what followed was a bungled police investigation. Initially, police Lieutenant-General Panya Mamen said that CCTV footage implicated two local Thai men, Montriwat Toowichian (“Mon”) and Warut “Nomsod” Toowichian. Mon is the manager of the AC Bar and Nomsod is the son of Woraphan Toowichian who is the owner of the AC Bar and the powerful village headman of Koh Tao.
Panya had also insisted that there would be no scapegoating in this case. He was promptly promoted and transferred and the Thai men were cleared by Panya’s seniors. In particular, Nomsod’s lawyer provided a dubious alibi that Nomsod had been in Bangkok at the time of the murders and showed CCTV footage of what he claims was Nomsod at university. In addition, the CCTV footage to which Panya had referred was never shown to the public.
However, some amateur sleuths quickly pointed out that the “university footage” was not from the university but from a building next door and that the footage appeared photo-shopped. In addition, it was said that the placement of furniture in the footage was inconsistent with the placement on the relevant day.
Once Mon and Nomsod were “cleared” the Thai police faced the task of “solving” the crimes and were ordered to do so promptly by Thai Prime Minister General Prayuth Chan-o-cha. This can reasonably be interpreted as code for: “Find a foreign scapegoat quickly in order to safeguard our lucrative tourism industry.” I refer to “foreign scapegoats” as the Prime Minister and other senior figures had publicly issued some ludicrous statements to the effect that no Thai person would commit such crimes.
Police attention had been briefly directed to one of David’s friends from Jersey but he was also cleared.
The police did obtain CCTV footage of three very small Burmese workers who were in and around Sairee Beach on the evening of 14 September 2014, namely: Maung Maung, Zaw Lin and Wai Phyo.
The police then concocted a story which they announced to the media. According to the story, Hannah had been raped and murdered by two Burmese workers who also murdered David while a third Burmese worker watched on.
It then emerged that Maung Maung had left the other two on the beach early in the evening and had gone to his girlfriend’s place and therefore had a strong alibi.
The police now concocted yet another story. They claimed that Zaw Lin and Wai Phyo had seen the tourists walk past them and snuck up on David while he was forcing Hannah to have sex and struck him on the back of the head with a hoe in order to save Hannah but then decided to rape her themselves. (The police seemed to have a few variations of this story but the variations changed too)
Inconsistent Physical Evidence
That story not only seems utterly implausible, it is completely inconsistent with the physical evidence. It is also worth noting that, although we all make mistakes from time to time, people who constantly change their stories tend to be lying.
The inconsistent physical evidence was not dealt with by the police spokesmen in their various statements to the media and it also seems that it was not dealt with properly at trial.
David had suffered multiple wounds and injuries. He had cuts around his face, neck and collar bone consistent with those that would be made by a knife or punch-knife and not a hoe. Clearly, more than one weapon was used to inflict his injuries but the police stories made little mention of other weapons and certainly did not establish that the defendants ever had such weapons. However, there is a YouTube video clip from 16 October 2014 in which the following statement appears: ‘ “There’s a mark on his face which could be from other types of weapon, meanwhile, the marks on his hand are similar to the injuries that could be from fighting,” police general Champumporn Suramanee said at a news briefing.’
Various pictures of David’s near naked (not naked) body appeared on the internet shortly after the murders. In some pictures a sock can be seen on his left foot. The sock is half on and half off. It seems implausible that David would be having consensual sex with Hannah on the beach with one sock half off.
Although I disagree with almost everything that David’s brother, Michael Miller said to the media outside the Samui Provincial Court one cannot fault his comments to the effect that we would have liked “Dave” and that David stood up for justice.
The physical evidence suggests that David died as a hero protecting Hannah and himself from a group of determined thugs. It does not suggest that he died at the hands of two tiny Burmese men who snuck up on him.
Various pictures of Hannah’s body also appeared on the internet. Bright red blood can be seen on her face. In contrast, there are also some dark stains on her face and upper body that do not seem consistent with blood but possibly consistent with residue from fireworks or the equipment of one of the Thai beach fire dancers. I am unaware of any explanation the police provided for the dark stains or how the defendants were supposed to have left such stains.
I suggest that the killers staged David’s body by taking his clothes off after they killed him but that in the darkness they failed to see that the left sock was not completely removed.
Thai Police DNA Evidence Discredited
I have previously written about the discredited police DNA evidence.
Police did extract confessions from the defendants, Zaw Lin and Wai Phyo allegedly under torture. However, once the confessions were retracted and the DNA evidence discredited there was nothing to link the defendant Zaw Lin to the crimes.
It is true that the defendant Wai Phyo said that he found a mobile phone on the beach on the morning of the murders when Zaw Lin was in bed. The police claim that the mobile phone Wai Phyo found belonged to David. There are some issues regarding the chain of custody and hearsay evidence in this regard but, for the sake of this article, I am willing to accept that Wai Phyo possibly had David’s mobile phone in his possession on the morning of the murders. If so, then this represents some circumstantial evidence that Wai Phyo MIGHT have committed - or aided the commission of - some criminal offence(s) AND/OR he might have witnessed the commission of some offence(s).
Should Co-Defendants Have Had Separate Lawyers?
In my view, Wai Phyo and Zaw Lin should have had separate lawyers.
Lawyers should strive to avoid situations where they have a conflict of interest or a potential conflict of interest. In some situations in the West it can be appropriate for co-accused or co-defendants to have the same lawyer(s) but this should only occur where the co-defendants have given their informed consent to such an arrangement after having the possible pitfalls properly explained to them.
According to Westerners who have met the defendants, neither of them are particularly bright and given that they grew up in relatively humble villages they appear very naïve and would probably struggle to understand some fairly simple concepts. In the circumstances, they probably present as viable scapegoats but it also suggests that they might not be able to give informed consent to having lawyers act with a real or a potential conflict of interest.
Zaw Lin seems to be the defendant facing the greater risk by sharing defence lawyers. One reason is that it was Wai Phyo who was the first to “confess” under interrogation (or torture) and his “confession” implicated Zaw Lin. The police then allowed the co-defendants to talk to each other whereupon Zaw Lin concluded that rather than go through any further interrogation or torture he might as well “confess” in light of Wai Phyo’s “confession” that had already sealed both their fates.
The second reason is that, according to both defendants, they were not together on Sairee Beach for the whole morning. Zaw Lin says he went to sleep at Maung Maung’s hut and Wai Phyo says that he (Wai Phyo) returned to Sairee Beach to look for Maung Maung’s work shirt. Maung Maung had stated that when he returned to his hut he found Zaw Lin fast asleep, which would seem unusual if Zaw Lin had just been involved in a double murder.
If Wai Phyo was on Sairee Beach longer than Zaw Lin was, then it casts greater suspicion on him (rightly or wrongly) as he had greater opportunity to see more, hear more and/or do more.
The third reason is that Wai Phyo “obtained” a mobile phone on the morning of the murders. I use the non-specific term “obtained” as I do not know whether he actually found it, or was given it (by a killer or someone else), or stole it, or committed a robbery (stealing with violence).
In any event, it looks suspicious for Wai Phyo to have obtained a mobile phone that morning and it is a suspicion that can be cast upon Zaw Lin by association. It is also suspicious (even if understandable) that Wai Phyo did not hand the mobile phone into police. Therefore, it is in Zaw Lin’s best interests to distance himself from the mobile phone and the activities of Wai Phyo during the period they were not together.
David’s mother, Mrs Sue Miller was often criticised on social media for her comments about the convictions of Wai Phyo and Zaw Lin but I think that her comment that Wai Phyo “has some explaining to do” seems perfectly reasonable in relation to the mobile phone issue.
A further reason for saying that Zaw Lin is at greater risk is that some of the defendants’ statements seem plausible but not that likely. They said they hid the guitar, went swimming, lost their clothes, lost their guitar and then Wai Phyo says he went back to the beach later and found a mobile phone but did not see Hannah or David.
I was not there so I have no first-hand knowledge of what actually happened but I think that a reasonable judge could harbour some doubts that all the statements were completely accurate.
I have had experience with my own clients where they make a small, honest mistake in what they tell me or, they might not tell me the complete truth without appreciating how a small detail can later create major headaches for them and their lawyers.
In this case, we have already seen that Zaw Lin followed Wai Phyo in making an apparently false confession once he learned that Wai Phyo had made a “confession” implicating both of them.
I think many people would understand that a guitar should be much more valuable than Maung Maung’s T-shirt with the letters words “AC TWO” (for AC TWO Bar) yet Wai Phyo said he returned to the beach to look for the T-shirt, not the guitar.
There is a possibility that not everything Wai Phyo said is completely true. Surprise, surprise! There are a multitude of possible explanations for how he lost a T-shirt and a guitar and obtained a mobile phone all on the one morning. I don’t believe Wai Phyo killed anyone but he might have run into some bad company that morning.
Earlier in the evening (according to the three Burmese men) Maung Maung and Wai Phyo exchanged shirts because of their different warmth. Maung Maung left Zaw Lin and Wai Phyo and rode Zaw Lin’s motorbike to his (Maung Maung’s) girlfriend’s place.
It is easy to imagine that Zaw Lin got tired after a while and just left Wai Phyo on the beach with the guitar. Like the whole Thai defence team and Andy Hall I was not on Sairee Beach at the material time so I have no direct knowledge of what transpired but we should all be alive to the distinct possibility that Wai Phyo’s explanations for the loss of his shirt and guitar and the finding of a mobile phone might not be 100% accurate.
Wai Phyo is under 5’ in height. If approached by a group of Thai thugs (whether clean or covered in blood) who demanded his guitar and T-shirt in return for a mobile phone then Wai Phyo would have few options. If the thugs told him that they would kill him if he told anyone who they were then Wai Phyo would have to take them seriously.
Wai Phyo might then have difficulty explaining how he lost a guitar and T-shirt. It is easy to say that a mobile phone was found on the beach but he might have required Zaw Lin to tell a little “white lie” by agreeing to say that they both went for a swim to then discover that their clothes and the guitar had been stolen.
Zaw Lin would probably not appreciate the difficulties he might make for himself by agreeing to help his friend. In contrast, if Zaw Lin had a lawyer who was acting solely for him then he would be advised to tell the truth whatever that might be ie: “I got tired so I left Wai Phyo on the beach with the guitar and I do not know about anything that happened on the beach after that.”
If Wai Phyo (and Zaw Lin) proceeded to tell some little “white lies” in Court (because it would be unsafe to identify the true killers) and if their explanations and demeanour were not compelling it would be easy for observers (such as the Miller family) to form the view that they were lying in relation to the “white lies.” It could also seem reasonable for the Miller family (and perhaps the Court) to form the view that if the defendants lied about a mobile phone, the shirt and the guitar then maybe they are lying about the murders too.
In contrast, if the Court found that Zaw Lin had, in fact, just left Wai Phyo on the beach with the guitar and T-shirt then it would become somewhat difficult for the Thai police to convince the Court and the world that Wai Phyo acting alone could have committed the crimes that morning.
Significance Of The Identity Of “Running Man”
The Thai police did release some CCTV footage of an individual dubbed “Running Man” who was in the general vicinity of the location of bodies. The police asserted that this was Wai Phyo. People on social media have claimed it looks like either Nomsod or Mon.
The images are very low resolution. My untrained eye tells me that the hair looks like Wai Phyo’s but the gait is consistent with Nomsod.
In my opinion, the Thai police and local mafia are only releasing those images that support their case and I would not be at all surprised if they have supressed or destroyed CCTV footage that would implicate any Thais.
Based on that opinion, I would not be surprised if it transpired that Running Man is Wai Phyo. In my opinion if Running Man was Nomsod the images would probably have been destroyed. However, I also think that the absence of footage showing Zaw Lin near the location of the bodies at the material time indicates that he had no direct knowledge of the murders.
This is a submission that a lawyer dedicated solely to Zaw Lin’s defence could have made. However, a lawyer acting for both defendants would find himself with a conflict of interest, which as previously mentioned, is a situation lawyers in the West strive to avoid.
Defendants’ Unusual Behaviour in Prison
There are several Westerners who were fellow prisoners in the Samui Prison with Wai Phyo and Zaw Lin and who were released as part of a large amnesty granted by the new King, Rama X. They report that, unlike other prisoners who would discuss their respective cases, the defendants did not discuss the events of 14/15 September 2014 with fellow prisoners. One obvious explanation is that they might have followed the advice of their lawyers to keep silent and another explanation is that the Thai police and/or some Thai thugs might have intimidated them. It should be noted that there would have been a brief period after being charged when the defendants had no lawyers.
More importantly, since his conviction and transfer to Bangkwang Central Prison, Zaw Lin has told several supporters that he and Wai Phyo have never discussed the mobile phone that Wai Phyo said he found.
These snippets of information are not conclusive of anything but it is open to draw the inference that the defendants have been prevailed upon to remain silent.
Is It Possible The Convictions Might Be Quashed Or A Retrial Ordered?
Unfortunately, I do not know enough about the Thai legal system to offer much insight.
If the Supreme Court agrees that the police DNA evidence should not have been accepted then the initial judgment should be set aside but I do not know what would be likely to happen after that.
The Thai defence team might have had their reasons for not calling the DNA expert, Jane Taupin to give evidence (ie keep the case as simple as possible and concentrate on the absence of the defendants’ DNA on the hoe) but, with respect, on reflection they might now feel that their decision backfired.
The Thai defence team also elected to refrain from cross-examining prosecution witnesses who presented the police DNA evidence. This is consistent with Thai culture of avoiding conflict however, with respect, the team might now consider that the avoidance of conflict in this situation was conducted at the defendants’ peril.
Given that Zaw Lin did not have independent counsel there might be further reason to respectfully suggest that he, at least, did not receive a fair trial without a more robust defence dedicated to his interests.
Source: Ian Yarwood, June 2017. Ian Yarwood, March 11, 2017. Mr. Yarwood is a barrister and a solicitor in Perth, Australia. He can be contacted at: @IanYarwood_Law.
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