Criminal Law in Thailand. IMPORTANT!

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Criminal Law in Thailand Part IIL: The criminal trial _ more about proof
Published: 30/01/2011 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
 
There are a few important issues pertaining to what a judge may consider as evidence in a criminal trial in Thailand. It's important to know about these, because if you are ever faced with criminal prosecution, you should understand the process and be able to work with your lawyer to introduce every shred of evidence in your favour.

One important issue is hearsay, which is defined as statements made out of court offered in court as evidence to prove the truth of the matter asserted.

Does that sound a little circular? Here's a fictional example. Let's say Mr X is on trial for the rape of Ms Y. It supposedly happened in a bar, and Mr Z was the bartender at the time. The same night Mr Z gave a statement to the police that he saw Mr X rape Ms Y in the back of the bar. Now, however, Mr Z says he can't remember anything about the incident and can't appear in court to confirm his statement to the police. The police want to introduce Mr Z's statement into evidence to show that Mr X raped Ms Y. Can they?

Probably not, because it's hearsay _ something said out of court that's being offered to prove the assertion that Mr X raped Ms Y. is true.

What's the problem with hearsay, anyway?

It's that the whole point of a criminal trial is that the defendant is entitled to confront his or her accusers, and both sides and the judge may question witnesses to see if what they are saying is believable. If the witness isn't there, there's no way to do this, so, in general, hearsay isn't admissable.

But hearsay is admissible in some instances. If the judge thinks the circumstances make the witness believable, and that what the witness is saying can be proved, or the witness is unable to appear in court for a good reason and the judge thinks the interests of justice are best served by admitting the evidence, the judge may do so.

To illustrate this point, let's say that Mr Z had moved to South America and can no longer be contacted. The judge might decide that even though Mr Z isn't around to testify, accepting the out of court statement best serves justice.

Turning to another more controversial issue, in the case of sex crimes, may the defendant introduce evidence about the victim's past sexual behaviour to prove his innocence?

In the case above, for example, could Mr X introduce other witnesses to testify that Ms Y is a prostitute who regularly used the bar to turn tricks?

Generally, no, under Thai law.

You can understand why. It's so easy to say that any victim of a sex crime was in some way ''asking for it'' that it's too prejudicial to the interests of justice to accept this proposition every time it is asserted by a defendant. Defendants say this in a disproportionate number of sex crime cases. Instead the judge has discretion to admit such evidence, after written application to the court by the defence, but only when the judge decides it's in the interests of justice. This means, of course, that the judge thinks its fair to do so.

Rape is defined under Thai law as unlawful sexual intercourse, and this includes sexual acts between both members of the same and opposite sex. Section 276, paragraph 1 of the Criminal Code defines unlawful sexual intercourse as whomever has sexual intercourse with another person, who is in a condition of being unable to resist, by committing any act of violence or by making such another person misunderstand [the perpetrator to be] another person, shall be punished with imprisonment of four to 20 years and fined 8,000 to 40,000 baht.

With reference to our example, you will notice this definition of rape doesn't say anything about the past behaviour of the victim. Many are shocked when they are told that a prostitute can be raped, and that the rapist can be prosecuted for this even though the victim has regular consensual sex with many partners.

Our last point on the issue of proof in court is a catch-all. Under Thai law, the judge can bring in additional evidence. In our case above, for example, the judge might ask for other evidence about the situation that neither party has introduced. Were there other witnesses? What did they say? Did the police take a picture of the part of the bar where the alleged rape took place? The judge can introduce this evidence even though neither of the parties has done so.

We've been talking about the facts of the case. What about the law? It is the judge's job to find the law and apply it to the facts introduced in the case. We'll talk about how the judge's decision is reached 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.

Source:http://www.bangkokpost.com/news/crimes/218932/criminal-law-in-thailand-part-iil-the-criminal-trial---more-about-proof