Criminal Law in Thailand. IMPORTANT!

[den Buut]

Why would anyone want to know or it's legal or not, owning  firearms is for hunters and retards.

[Admin]

Criminal Law in Thailand Part XXII: Licensing a gun in Thailand
Published: 1/08/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum



This week we'll talk more about getting a licence for a gun in Thailand. First, there are police and ministerial regulations that give general guidelines and criteria by which the officials at the Registrar's office base their decision on whether to issue or deny a gun permit.

These considerations would be in addition to those mentioned last week of the persons who by law are absolutely prohibited from having gun licences and give the Registrar further discretion to deny permits on a number of grounds.

There are many of these guidelines and the following are the generalised areas of inquiry and discretion that the Registrar has in connection with deciding whether to issue or not to issue a gun permit:

- The age of the applicant. Adults (20 years of age and over) are preferred. In practice, for this category, only adults will be allowed gun permits.

- Are there particular reasons for which the applicant needs a gun, for example, does the applicant live in an isolated, dangerous area, engage in a profession that might expose him or her to particular danger or have special professional responsibilities that require him or her to protect money or valuable property?

- Has the applicant been convicted of a criminal offence? Does he or she known to associate with criminals? Is he or she known to be free of mental illness or impairment?

- Is the applicant considered a stable, normal member of the community?

- Has the applicant had previous permission to own a firearm?

- Will a local government officer such as a police officer, police chief, sub-district or village headman recommend the applicant?

- Does the applicant have a strong belief in any doctrine that could pose a security threat to Thailand?

- Has the applicant been guilty of any misconduct, even if not a crime, that might affect public order?

There are criteria that relate only to foreigners.

As we mentioned last week, however, applications by foreigners are now scrutinised much more strictly than applications by Thais.

Practically speaking, a new gun permit will only be issued to a foreigner under the most extraordinary of circumstances, if at all. The criteria are:

- Is the applicant a permanent resident in Thailand? As mentioned last week, a foreign applicant must be able to produce a yellow book showing that he or she has been a resident for at least six months at the address contained in the yellow book.

- Does the applicant speak Thai? This is not a strict requirement, but would be one factor in determining whether the applicant is a permanent resident.

- Does the applicant have family members in Thailand? This is yet another factor that the Registrar might use to determine whether the applicant is a permanent resident.

Next week we'll talk about the procedure for obtaining a gun licence.

[den Buut]

This is very interesting for people that are scared all the time, better pay a visit to a shrink.

[fox]

This is very interesting for people that are scared all the time, better pay a visit to a shrink.

you must know the law in thailand is very different from real life and some situations you might get into them in the future, good to know the law and use it if needed.

[den Buut]

See my reply july 26, this is how I think about firearms.(Just don't)

[Admin]

Criminal Law in Thailand Part XXIII: Procedure for obtaining a gun licence
Published: 8/08/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum

This week we'll begin the discussion of the actual steps one has to take to license and buy a gun in Thailand. Remember, if you're a foreigner, the likelihood is that you won't be granted a gun licence.



The rules below would, of course, apply to applications by Thai citizens closely related to you or in your household.

First, let's look at the guns that are allowed and not allowed for civilians to license in Thailand: Rifled firearms exceeding 11.45mm in calibre can't be licensed;smooth-bore firearms exceeding 20mm in calibre can't be licensed; muzzle-loaders, shotguns and pyrotechnic pistols, also smooth-bore, can be licensed; there are limitations on firearms with automatic chambering devices, but shotguns in this category can be licensed; guns with silencers can't be licensed; guns that are designed to deliver toxic, infectious, inflammable or radioactive substances can't be licensed; military weapons, such as M16s, can't be licensed.

In effect, what can be licensed is an 11.45mm or smaller pistol or rifle. Shotguns can also be licensed. As we'll discuss later, when one files the application for any of these weapons, you must affirm that they will be used only for defence of oneself or one's property, sport or hunting.

Before getting a licence, the applicant must identify the exact firearm to be purchased and from whom it will be purchased. It must be bought from a licensed dealer. In Bangkok, for example, there are several dealers in the Wang Burapha area. The internet is a source of licensed dealers throughout Thailand.

When the applicant has the exact model he or she wishes to purchase and the dealer's identity, the application process may begin.

The first step is to file an application to possess and use a gun, form Por.1. This has to be filed with the proper authority in the area where the applicant has a blue or yellow book, indicating a residence there. For Bangkok, this has to be filed at the Department of Provincial Administration, located at Nakhon Sawan Road, Dusit, Bangkok 10300. Please note that this filing location has recently changed and was for many years previously the registration division of the Royal Thai Police Office. In the provinces, it has to be filed with a nai amphur, or sheriff.

In the form Por.1 the applicant must identify the dealer, the exact model to be purchased and the ammunition. The applicant must also affirm that the weapon will be used only for defence, sport or hunting.

Form Por.1 contains numerous questions designed to enable the authorities to determine whether the applicant is among the groups to whom firearms are not allowed. The specific qualifying and disqualifying factors have been discussed in earlier columns.

Next week we will conclude our discussion of the application process for a gun licence.

[buriramboy]

very informative, enjoyed to read, though I will reply on a lawyer and not on my personal judgment in case of troubles.

[den Buut]

Nobody should want to know this, if you are so scared living in Thailand you better head back home, firearms are for morrons.
http://www.kdhnews.com/news/story.aspx?s=41466
http://www.telegraph.co.uk/news/worldnews/northamerica/usa/7407373/Girl-3-thought-loaded-gun-was-Wii-controller-in-fatal-accident.html
http://www.infoplease.com/ipa/A0922329.html#axzz0xtbljP8e
and many, many more...

[Admin]

Criminal law in Thailand Part XXXII: Traffic crimes—drink-driving
Published: 10/10/2010 at 12:00 AM
Newspaper section: Spectrum

Last week we began a discussion of additional traffic offences of which all drivers in Thailand should be aware. Here is another _ drink-driving. Thailand is serious about keeping drink-drivers off the road, and several provisions of the Land Traffic Act (the Act) back this up. Under Ministerial Regulation No16, if the driver's blood-alcohol is 50mg per 100ml, it is past the legal level and the driver is considered drunk. If the police suspect that a driver has been drinking, they have the power to order him or her to stop and be tested.

If the driver refuses to be tested voluntarily, he or she will be subject to a fine of 1,000 baht and taken into custody until the test can be administered. If the driver is determined to be sober, he or she will be freed immediately. In practice, the fine for refusing to be tested is discretionary with the police, who may not levy it even if the driver is determined to be drunk. The reason for this is that a driver determined to be drunk will be prosecuted for the much more serious crime of drink-driving as set forth below.
If the driver is determined to be drunk, the police will submit the case to the public prosecutor. If, after trial, the driver is found guilty, he or she will be subject to a fine of up to 20,000 baht and/or imprisonment of up to one year. The court will also decide whether to suspend the driver's licence for up to six months or to revoke it. Whether the licence is suspended or revoked depends on the circumstances of the case. Prior offences will be taken into account, as well.
If the licence is suspended, the police, as a practical matter, hold on to it until the suspension period is over.
There are additional criminal penalties for causing injury to others while driving drunk:
If the drink-driver has caused bodily or mental harm to anyone, he or she will be subject to imprisonment of up to five years and a fine of up to 100,000 baht.
If the drink-driver has caused grievous bodily harm to anyone, as determined by a decision of the judge, the maximum penalty is up to six years imprisonment and a fine of up to 120,000 baht.
If the drink-driver has killed someone the maximum penalty is 10 years in jail and a fine of up to 200,000 baht.
If the intoxication is a result of drugs other than alcohol, stiff penalties may be applicable under the Narcotics Act and the Psychotropic Substances Act. The driver can also lose his or her licence as set forth above.
We have discussed the crimes in connection with drink-driving above in a way that conviction may appear automatic. We have done so to give you an idea of the consequences in the event you are convicted of a drink-driving offence.
In future columns, however, we will explain what it means to be tried for an offence in Thailand. There are a number of safeguards built into the system. For example, the judge has much discretion on what evidence can be introduced against a defendant. We hope you will see at that time that the criminal process is complex and that there are many factors that need to be evaluated before anybody is convicted of anything.



Source: http://www.bangkokpost.com/news/crimes/200615/criminal-law-in-thailand

James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researchers:
Sutatip Raktiprakorn and Sitra Horsinchai.
For more information visit
www.chavalitfinchlaw.com.
Comments? Questions?
Contact us at the email addresses above.

[Admin]

Criminal Law in Thailand Part XXXIV:
Minor crimes you should know about
Published: 24/10/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum  

Thailand is a complex and developed society, the morays of which are reflected in crimes against behaviour that may not be considered criminal in other societies. We'd thus like to use this week's column to mention a few activities that may not be crimes in countries other than Thailand, but of which you should be aware if you are living here.

What we will discuss below are considered petty offences, in other words the penalties do not exceed imprisonment of one month and/or a fine of 1,000 baht. People, including foreigners, do get arrested for these crimes, however. Thus, as with other issues of manners and culture, it's important to be aware of them.

The first crime is that of fighting. Section 372 of the Criminal Code provides that anyone fighting or otherwise causing a disturbance in a public way or place shall be exposed to a fine of up to five hundred baht.

Let's look at how this could happen. You're sitting in one of those outdoor bars in the night market in your town. At night, there are stalls and places selling food and drink on both sides of a narrow street with lots of people passing by.

Down the street you see one of the players in your darts league. Last week you and he got into an argument over the fact that he routinely flirts with your girlfriend while you are trying to concentrate on the game. It didn't come to blows, but it was pretty heated.

You want to give him a lesson. He doesn't notice you, and the second he walks past, you stand up, step into the street and give him a good shove. He knocks into a couple of passers-by and wheels around, seeing you. Then he lunges across the street at you. The two of you end up wrestling around in the street, stopping pedestrian traffic and knocking down a couple of tables. Eventually a couple of big guys emerge from the crowd and separate you. A policeman appears.

You can be taken to the police station and charged with fighting in a public way.

Let's change the example a little, to illustrate the second petty crime. After you shoved your neighbour but before he lunged, you pulled out your pocket knife, opened it and waved it at him, just to keep him away. A policeman intervened at this moment. The crime is a violation of Section 379 of the Criminal Code, which exposes those who draw or brandish arms in the course of a fight to imprisonment not exceeding 10 days. By the way, in earlier columns we discussed the fact that arms are anything that may be used as a weapon, and don't have to be items exclusively used as weapons, such as guns.

A related offence, under Section 371 of the Criminal Code, is carrying arms in public or to a public gathering, which may result in a small fine and loss of the weapon.

Public intoxication is another petty offence of which you should be aware. This time, in a new example, you stop at Soi Cowboy for a drink after a hard day of work. You run into some friends. Everyone's bar hopping, and, before you know it, your watch says it's almost midnight. You realise it's time to call it a day. At this point you're sitting, alone, in an outdoor cafe. You stand up and walk into the street.

At the last second, you realise that you've had too much to drink, and lose consciousness. A crowd gathers and a policeman finds you, passed out, in the street. Even though you've not done anything to anybody but yourself, the policeman can arrest you and charge you with public intoxication under Section 378 of the Criminal Code. This prohibits riotous behaviour or being unable to control oneself in a public place as a result of alcohol or drugs. The fine is up to 500 baht.

We are often asked about whether conviction of a crime will affect one's ability to stay in Thailand. Section 12 (6) of the Immigration Act BE 2522 states that foreigners who have been imprisoned as a result of a conviction either in Thailand or abroad will be prohibited from entering Thailand. Section 36 of the Immigration Act, moreover, provides that where there is reasonable circumstance the Director-General of Immigration or the Immigration Commission may revoke a foreigner's visa. The crimes discussed above are petty crimes and will not give rise to loss of a visa or being barred from entry to Thailand. More serious crimes may do so, however, and we will discuss this at a later time.

James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com) and
Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researchers: Sutatip Raktiprakorn and Sitra Horsinchai.
For more information visit
www.chavalitfinchlaw.com.
Comments? Questions?
Contact us at the email addresses above.
http://www.bangkokpost.com/news/crimes/202988/criminal-law-in-thailand-part-xxxiv-minor-crimes-you-should-know-about

[Admin]

Criminal Law in Thailand Part XLI: The criminal trial _ how it is conducted
Published: 12/12/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum

We've talked earlier about the players and the kind of proof that is required to be introduced in a criminal trial. Now we will give you an overview of some of the principal steps in a criminal trial.

As discussed earlier, most criminal cases are initiated by the public prosecutor. We'll discuss this in depth next time, because how this happens goes to the heart of the criminal process in Thailand.

The trial starts when the accused is brought to court to be charged with the crime by the public prosecutor. The judge may at this time have a preliminary examination of the case, but, as a practical matter, usually just rules on whether the charge conforms to the law. If the judge accepts the charge, he or she may ask the accused to give a statement and, with the public prosecutor and defence, set a date for trial.

At the time appointed for the trial to begin, the prosecutor, judge or judges and the defendant and his or her lawyer meet in the courtroom. The judge or judges sit facing the public prosecutor, the defendant and his or her lawyers, who sit at separate tables.

The public sits behind the tables occupied by the parties. Normally, the public is allowed to attend criminal trials, but the judge may on his or her own, or at the request of either of the parties, close the trial to the public if he or she thinks doing so would be in the interest of public order, good morals, or state security. An example of when a judge might close a trial to the public is where the victim of a sex crime is a child and the judge doesn't wish the child to be exposed to negative publicity as a result of the trial.

If a member of the public, including the press, wants to record, photograph or video any portion of the trial, he or she must apply in a letter to the chief judge of the court, giving the case number, date and the reason for the recording. Without prior permission, recording, photographing or videoing any portion of a trial is considered in contempt of court and will expose the person doing it to punishment.

The judge announces the beginning of the trial. The judge makes a recording of the entire trial and a clerk enters all testimony into a computer. The exact method of recording the trial is set by regulations made by the Chief Judge of the Supreme Court.

The first formal statement is made by the prosecutor. Generally, he or she will start with a statement of the facts and law on which he or she intends to rely. Then the factual evidence, discussed in earlier columns, from witnesses and physical evidence such as fingerprints, documents, weapons, contraband and photographs, is introduced.

Generally, the judge has discretion to admit any evidence likely to prove the guilt or innocence of the accused. The court may require expert testimony on any fact that constitutes a substantial issue in the case. Likewise, the parties may introduce expert testimony on substantial issues.

Documents may be presented as evidence. Copies of official documents such as government records certified by government officials are acceptable. Otherwise, if the original of the document to be presented is not available, a certified copy or oral evidence of what was in the document will be admissible.

Evidence introduced by the prosecution may be questioned by the defence. Witnesses may be cross-examined after they have given testimony for the party who asked them to appear. For example, the prosecution might introduce a witness who says he witnessed the crime. When the prosecution has finished questioning this witness, the defence might then confront that person about evidence to the effect that he was out of the country at the time of the crime and couldn't possibly have witnessed it. As will be explained later, it is the judge who will eventually decide who to believe.

Parties may object to the introduction of evidence by their opponents. We will cover what can be introduced and what can be objected to later, but suffice to say here that the judge has discretion on what to accept or reject as evidence.

If the judge excludes something, he or she must explain this in the written record of the trial so that, if necessary, it may be evaluated by other judges if the case is appealed.

Then the defence may put on its case, first with a statement, then with witnesses and other evidence, just as with the prosecution. The same rules mentioned above apply and the prosecution may cross-examine witnesses and object to evidence.

Next time we'll begin a discussion of important points along the road of the trial and how it's all resolved.

[Admin]

Criminal Law in Thailand Part LXII: How the prosecutor gets involved
Published: 19/12/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum

A criminal trial against any individual in Thailand may be started in two ways _ by the public prosecutor or by the injured party. This time we will discuss criminal trials brought by the public prosecutor because it goes to the heart of the justice system in Thailand.

If the trial is is to be conducted by the public prosecutor, there must first be an inquiry by another official, usually a police officer. The inquiry is conducted by the official in charge of the case using available resources such as getting statements from the parties taking witness statements and visiting the scene. The inquiry official then recommends whether to pursue prosecution. In either case, the recommendation is sent to the public prosecutor.

If the recommendation is in favour of prosecution, the inquiry official also brings the defendants to appear before the prosecutor at the time the documents are presented.

The public prosecutor can send the case back to the inquiry official for more information but is ultimately responsible for deciding whether to prosecute. If the public prosecutor decides not to prosecute, he or she issues a non-prosecution order.

If the decision is to prosecute, a prosecution order is issued and a charge is later filed against the accused in court.

If the defendant has not previously been sent to the public prosecutor because the inquiry official recommended against prosecution, the public prosecutor will also order that the accused be brought to him or her.

If a public prosecutor has issued a prosecution order, it is up to the prosecutor's discretion to determine what to do with the defendant pending trial. The defendant can be kept in custody, jailed or granted provisional release as discussed in earlier columns. If the prosecutor orders that the accused be jailed before being charged in court, the accused may apply to the court for provisional release.

After the defendant is charged, it is up to the discretion of the court to determine whether to detain a defendant or grant a provisional release.

If the decision to prosecute has been made by the public prosecutor, charges will be made against the accused in court.

Before the trial, the judge may decide to hold a preliminary hearing, though this is up to the justice's discretion. At that hearing, the accused is identified and the charges are explained to him or her. The accused is asked whether he or she committed the offence and to make a statement, which is recorded. If the accused refuses to make a statement, that fact is recorded, and there is a preliminary examination of the facts.

If the accused pleads guilty at the preliminary hearing, the judge will accept the charge for trial.

What happens if the accused pleads not guilty? The judge will conduct a preliminary examination of the case. If the public prosecutor can successfully argue that the basic elements of the crime exist, the court will accept the charge for trial. If the public prosecutor is unable to show the judge these basic elements, the judge may dismiss the case then and there.

The state does not have the obligation at the preliminary hearing to provide the accused with a lawyer at state expense, though the accused may bring his or her own lawyer.

If the judge decides not to have a hearing, or if after the hearing the judge decides to proceed with trial, the trial date will be determined by agreement between the judge, the public prosecutor and the defendant's lawyer. As with the earlier stages, the judge has discretion as to whether to jail the defendant or grant provisional release pending the trial.

James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researchers: Researchers:
Sutatip Raktiprakorn and Sitra Horsinchai.
For more information visit
www.chavalitfinchlaw.com.
Questions? Contact us at the
email addresses above.

[Admin]

Criminal Law in Thailand Part XLIII: The criminal trial—proving elements of the crime
Published: 26/12/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum

It's time to discuss the trial. Let's say you have been arrested and formally accused as discussed in earlier columns, but you deny the charges. The matter will be tried before a judge.

At this stage, as with other stages of criminal matters in Thailand, you have a right to a lawyer, a translator and to be present with your friends or family members. If you can't afford a lawyer and/or translator, one will be appointed for you at the state's expense.

For you to be convicted, it must be proved that you committed each element of the crime. For example, the important elements of the crime of theft are as follows _ a dishonest intent to permanently deprive another of their property.

And we'll assume for this example you are accused of stealing Mr X's car. Let's analyse whether you committed the crime from the point of view of each of its elements. First, let's assume you did drive somewhere in Mr X's car without his permission. Thus we have to admit that at least two of the elements mentioned above, that the car is the property of another, are satisfied.

Dishonesty is a term of art and means you received a benefit in the property to which you are not entitled under law.

Certainly the law doesn't allow people to drive other people's cars without permission, so let's assume this element is also satisfied.

But let's look at more of what really happened. Your wife was crossing the street with you and was hit by a car. She was seriously bleeding. You desperately needed a car to drive her to the hospital. You saw Mr X's car sitting at the side of the road with the keys in it. You told a man standing there that you were just borrowing the car.

In the matter above, you would argue and present evidence at your trial that an element of the crime _ the intent to permanently deprive Mr X of his property _ is missing.

Permanently in this context means the defendant intended to acquire the car and had no intention to give it back. In this case, you were only borrowing it in an emergency.

And that's what criminal trials are about _ deciding whether the defendant committed all of the elements of the crime.

Because even if most of the above elements were satisfied, you're not guilty unless all of them are.

But if you think making these decisions is a pretty simple matter, let's add a few facts to the above example.

What if the prosecutor argues you did plan to acquire the car permanently and says he can prove it. After you took the car to the hospital, you drove the car to your house, and that's where the police found it parked, four hours after the accident. If you didn't intend to take the car permanently, why didn't you take it back to where you'd found it?

Then you add some more evidence. The doctor at the hospital told you your wife had lost a lot of blood and should be taken home to rest immediately. You simply drove her home with the car, were helping her inside and planned to take the car back as soon as she was settled. Then the police showed up, so you never had the chance to return it.

Who's right? Who decides whether you are guilty or not, and what standards are used? We'll discuss these topics next time.

James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com),
Researchers: Sutatip Raktiprakorn and Sitra Horsinchai.
For more information
visit www.chavalitfinchlaw.com.
Questions?
Contact us at the email addresses above.

[Admin]

CRIMINAL LAW IN THAILAND Part XLIV: The criminal trial _ who decides?
Published: 2/01/2011 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum

Last week we explained that to be convicted of a crime, it has to be / that you have committed each and every one of the elements of the crime. As an example we talked about one element of theft that you, the accused, have to be proved to have planned to permanently deprive the owner of possession of his or her property. But what if the prosecutor gives the judge evidence that you did intend this and you give evidence that you did not?

Who decides and how?

In Thailand it is the judge that decides guilt or innocence, using a beyond a reasonable doubt standard.

In some countries, such as England and Wales, or the US, for example, there is sometimes a jury _ a group of people drawn from the community that decides matters of fact for the judge. As with a majority of countries, Thailand does not have this system and it is the judge that decides matters of both the facts and the applicable law.

Let's show how the system works using an example. You are accused of stealing a car. One element of stealing is that you must have intended to permanently deprive the owner of the car. The public prosecutor introduces testimony by a policeman to the effect that you drove the car away from where you took it and later the police found it in your possession parked at your house and claims this meant you intended to keep it for yourself. You bring a witness who was at the scene when you took it to whom you said that you were only borrowing the car because of an emergency health problem your wife had. As you can see, the evidence introduced by the opposing parties is in conflict. How is the judge supposed to decide who is right?

First, in deciding on whose arguments to accept, the judge must be convinced beyond a reasonable doubt. How sure must he or she be of this? Very. It means the judge must be convinced that the facts are as he or she rules to a high degree of certainty. It can't be just that the judge thinks it is more likely than not that things happened that way he or she decides. No. It must be more certain than that.

In the course of human events, one way of looking at things is that one can never be absolutely certain of anything. And for sure, science has a way of inventing things, DNA analysis, for example, that sometimes prove decisions in the past to have been wrong. But beyond a reasonable doubt means to the extent anything can be certain in the moment, it is certain. Thus if the judge finds that you were guilty in this case, it would mean he or she was certain that the witness' testimony that you were borrowing the car was wrong.

Let's look at what happens if both sides give evidence to the judge and there's no clear winner. What if it isn't clear in the judge's mind beyond a reasonable doubt whether you intended to keep the car or not?

Thailand relies on another basic standard: it's called the presumption of innocence. It simply means that unless a defendant is proved guilty beyond a reasonable doubt, he or she is assumed to be innocent.

The philosophy of the presumption of innocence is that the public prosecutor has all of the resources of the state at his or her disposal. Once the state decides to accuse someone, it is simply harder for you, the individual, to fight off the state's accusations. To even the playing field, the judge is directed by the legal system to decide in favour of the defendant unless the state can prove its case beyond a reasonable doubt.

You can see how the presumption of innocence would work to break the tie in our example. Perhaps the judge agrees with the police that if you really were only borrowing the car, you would have immediately returned it to its owner. On the other hand, you clearly told someone at the scene you were only borrowing the car in an emergency. The judge simply might not be sure. So the judge has to decide in your favour, because of the presumption of innocence.

Next time, we'll talk about other features of the trial that keep things fair _ or more fair, anyway.

James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researchers:
Sutatip Raktiprakorn and Sitra Horsinchai.
For more information visit
www.chavalitfinchlaw.com

[Admin]

Criminal Law in Thailand Part XLV: The criminal trial _ evidence
Published: 9/01/2011 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum 

One of the principles of a fair trial is that there should be as few surprises as possible, so both sides can fairly prepare for the evidence that the other plans to introduce. Thus before the trial both the prosecutor and accused must submit a list of evidence and witnesses to the court and the opposing side. This gives each side the opportunity to examine the evidence the other side claims will support its case at trial, and even contact opposing witnesses to find out what they will say.

The prosecution's list must be submitted at least 15 days before the start of trial. The defence must submit its list the day before it begins presenting its evidence at trial.

Once the trial starts, the prosecutor presents evidence first. As stated earlier, the prosecution must prove to the judge each element of the crime beyond a reasonable doubt.

What evidence may the judge consider and what evidence must be disregarded? Of course, the human factor comes into play here. A judge may deem evidence inadmissible, but knowing of it could still influence a verdict.

Here's a fictitious example of what we mean. Let's say the police hear from a very unreliable informant that there might be drugs in Mr X's house. Rather than get a warrant, they go over to the house and illegally search it, finding drugs. At Mr X's trial for illegal drug possession, the judge rules that the drugs are not admissible to be considered at the trial because they were the product of the illegal search and because it would be against the interests of justice to admit this evidence.

The other evidence in this example is pretty sketchy _ the testimony of the police informant.

It turns out, however, that this informant often tells the police that people _ particularly those he doesn't like _ have drugs. It is also discovered that the police ignore his drug addiction and regular illegal purchases because of the information he provides them. The defence introduces testimony from other witnesses showing that the informant has lied and been wrong in many other cases.

So how does the judge determine guilt or innocence in this case?

The real evidence _ the drugs _ is not admissible. There is other evidence, but it insufficient on its own to prove beyond a reasonable doubt that the crime was committed. But wouldn't the judge be just a little bit influenced by knowing that the crime has been committed in deciding whether to believe the informant in this case?

Of course. This example proves what you already knew about the legal system _ that it's set up to include a certain human element. And it's this element _ good and bad _ that determines the fundamental justice of a legal system. Section 226/1 of the Criminal Procedure Code says that evidence obtained wrongfully or through bad faith shall be excluded from the trial, unless admitting the evidence is more useful in the cause of justice or basic human rights and liberty. Thus, even if the evidence is illegally obtained, the judge may still decide that it is in the best interest of justice to admit it to be used by the prosecutor at trial.

Next time, we'll talk more about what can be admitted in evidence and what can't.

James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researchers:
Sutatip Raktiprakorn and Sitra Horsinchai.
For more information see
www.chavalitfinchlaw.com.
Questions?
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