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!! #IMPORTANT #article #reflecting on #fairness or #legality of yesterday’s #decision by #Samui #court #koh #Tao

October 15, 2014

Important article reflecting on fairness or legality of yesterday’s decision by Samui court to move forward with the Koh Tao murder case advance witness hearings session despite defence team requests for postponements to allow time for preparation and meeting with accused.

 

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© NADTHASIRI T. BERGMAN, Esq.
Attorney at Law – nadthasiri@gmail.com
LL.M. – United Nations Interregional Crime and Justice Research Institute
ADVANCE TESTIMONY
Typically, a trial or court hearing will be scheduled for taking evidence, and the witnesses for the case will give their testimony during this hearing. In any case, the hearing will be conducted in open Court and in the presence of the accused.
The date the witnesses are to give testimony in Court will be designated during the first inspection of the evidence by the Court. However, in case of necessity, for the benefit of fairness, if the Court deems suitable or any of parties make a request, the Court will issue an order to take evidence in respect to important issues in the case before the date designated for the taking of evidence. This is called Advance Testimony before the entry of the charge in the Court.
There are two different periods of witnesses testimony; before the entry of the charge in the Court, and after entry of the charge in the Court. Both are to take place before the trial and before the taking of evidence commences.
In this case, the prosecutor must be confident that their witnesses are substantial and material to the case, and there is the possibility of loosing these witnesses, and to secure these witnesses testimony the prosecutor can submit a motion to urgently conduct the advance testimony of witnesses before the entry of the charge in Court under the Section 237 bis. of the Criminal Procedure Code of Thailand.
In practice, the inquiring officer will submit the motion to the prosecutor along with the case’s file with the explanation of necessity and justification. After receiving the motion from the inquiring officer, the prosecutor will review the motion, and if in agreement with the inquiry officer he then will further submit the motion to the Court.
There are five grounds for the motion to have the witnesses testimony taken before the entry of the charge in Court:

1. There are reasonable grounds to believe that the witness will depart from the Kingdom, or
2. The witness has no habitual residence, or
3. The witness has residence far a way from the Court of trial, or
4. There are reasonable grounds to believe the witness will be tampered with directly or indirectly, or
5. There are necessary causes which make it difficult to bring the witness to give testimony in the future.
Once the Court is satisfied that the motion is compliant with the law, then the Court will grant permission to take the witnesses testimony promptly, and designate the date of hearing for this procedure.
On the hearing date before the commencement of the trial, if the offender and/or witnesses can not understand Thai, an interpreter must be appointed for them. Then, the Court must ask the alleged offender whether he has a counsel or not. If not, the Court must appoint counsel, or the accused has right to apply to the Court to appoint one for themselves according to Section 173.
In the case where the Court has to appoint a counsel for the alleged offender, if the Court is of the opinion that it can appoint one for them in time, it shall do so and proceed with the taking of the witnesses testimony promptly. But, if the Court is of the opinion that the Court cannot appoint the counsel for the accused in time, or the alleged offender cannot appoint one in time, the Court itself shall examine the witnesses for the accused.
If the alleged offender is then charged with the commission of a criminal offense, the testimony before trial may be admitted as evidence during the trial of the case.
This advance testimony is not a ‘preparatory examination’. In Thailand, where the case is entered into the Court by the Public Prosecutor, the law does not require a preliminary hearing because the law is under the impression that the inquiry officer has already done the investigation and the case is fit under the law.
The conducting of advance testimony will be similar to the testimony given during the trial or normal hearing. The witness must give testimony under oath, and if the witness is found lying under oath they can then be charged with perjury under Section 177 of Thailand Criminal Code, punishable by imprisonment up to five years or a fine up to 10,000 Baht, or both. Additionally, if perjury is committed in a criminal proceeding, the punishment can be imprisonment up to seven years and a fine up to 14,000 Baht, or both.
The Advance Testimony will be video recorded since this same evidence may be used in future in a higher court. Because of this video recording, if the witnesses later changes their testimony, the video can be used as evidence to prove that there are two pieces of evidence contradicting each other, meaning one might be a lie resulting in the witness being charged with perjury. The Advance Testimony is indeed a criminal proceeding, so the threat of perjury charges makes it more difficult for the the witnesses to change their testimony during the trial.
The alleged offender may cross-examine or appoint counsel to cross-examine the witnesses. The defense lawyers have the right to call witnesses during the trial.
When dealing with a large case file of several hundred pages, the defense team must be allowed adequate time to properly examine the entire file in order to be properly prepared to cross examine witnesses at the Advance Testimony hearing.
Although testimony will only be given by witnesses the prosecutor perceives as important to the case, to give a competent defense, the defense lawyers must be able to understand the entire case scenario. With a lack of time made available to the defense lawyers, performing a thorough and competent cross-examination after the prosecutor finishes his questions will be impossible for the defense team.
CONCLUSION:
In any case, Court imposed time constraints could make it impossible to provide a transparent and fair trial on behalf of the accused if the time allowed between receipt of the case files and the date of the Advance Testimony is inadequate.
© NADTHASIRI T. BERGMAN, Esq.
Attorney at Law – nadthasiri@gmail.com
LL.M. – United Nations Interregional Crime and Justice Research Institute
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