Wednesday, February 8, 2017

# 215 APLE's ham-fisted attempt to silence a critic in the post-factual world Donald Trump has inflicted upon us!

Oh dear!
Taken to court again in Cambodia, by Action Pour les Enfants (APLE) this time,  and not invited to attend!
Am feeling unloved!
First I heard of this latest Cambodian court farce was when I got en email from the Cambodia Daily asking if I would like to comment on the court’s verdict?
“What case?” I asked.
Here it is, with comments interspersed:
APLE Cambodia Welcomes Phnom Penh Municipal Court’s Decision on Defamation case
Wednesday 8th February 2017
“Phnom Penh. On 5th December, 2016, the Phnom Penh Municipal Court heard a defamation lawsuit filed by APLE Cambodia against a 46 year old Australian national James Ricketson and on 15th December 2016 the court pronounced a verdict finding James Ricketson guilty and sentencing him in absentia to compensation of 10 million Riel and 5 million Riel fine according to article 305 of the Criminal Code…”
COMMENT: I was in Phnom Penh on both 5th and 15th of Dec 2016 but today (8th Feb 2017) is the first I have heard of this matter.
Article 305 reads as follows:
Appearance of Accused upon Indictment
Where the court has been seized by an indictment, the accused will remain free to present himself unless the investigating judge or the President of the Investigation Chamber decides to provisionally detain him.
Difficult to present myself to the court if I am not invited?
On the plus side APLE, with an approach to ‘facts’ not dissimilar to Donald Trump’s, has shaved 20 years off my age. We must be grateful for small mercies!
“…In October 2015 APLE brought a lawsuit against James Ricketson after he had made plentiful attempts to defame the organization. In September 2015, in his letter to the Editor of the Cambodia Daily alleged that APLE was not being honest in the rape case involving British national, David Fletcher, who was convicted by the Phnom Penh Municipal Court.”
COMMENT: As has happened to me (with Citipointe church and now APLE), David Fletcher was not notified that he had been tried and found guilty in absentia until after the case had been heard. This is standard operating procedure in Cambodia.  
David Fletcher was not in Cambodia at the time of the alleged rapes (in Phnom Penh), the doctor who examined Yan Dany after the supposedly ‘brutal’ rapes declared her to be a virgin still and Yang Dany (and her mother, Sekun) deny that any rape took place.
Seila Samleang of APLE has no respect for facts but if the reader has an interest in facts (as opposed to whrt is to be found in APLE press releases!) they are to be found below, under ADDENDUM # 1
“On other occasions he accused APLE Cambodia of bribing the police and judicial authorities to convict innocent men like David Fletcher. In the same case he accused APLE of paying the victim and her family to lie about the alleged rape and of being involved in the trafficking of the girl to China.”
APLE did not want me to be in court for the simple reason that Seila Samleang knew that I could prove this last statement (and many like it) to be false. The last thing APLE wanted was for evidence to be presented to the court that was at variance to the ‘fake facts’ it was presenting.
“In many of his blog posts between 2014 and 2015 Ricketson repeatedly wrote to accuse APLE Cambodia of putting innocent men behind bars in order to raise funds with the impressive arrest and conviction rate; buying judges to deliver the verdict in any direction APLE wants; being a corrupt NGO with no respect for Cambodian law or for the legal and human rights of innocent men; and manipulating witnesses and the courts to secure the outcome APLE desires.”
Given that I have not been appraised of any evidence in relation to the charges made against me in this preceding paragraph, it is difficult for me to comment.
However, I can make a statement of the obvious – namely that the Cambodian  Judiciary, on a regular basis, convicts, fines and jails men and women who are denied the legal rights accorded to them by the Cambodian Code of Criminal Procedure. Anyone who thinks otherwise will feel quite at home in the post-factual world Donald Trump has ushered us all into.
The Emperor (the Cambodian judiciary) has no clothes on!
For anyone interested I have, in ADDENDUM # 2, listed all the sections of the Cambodian Code of Criminal Procedure that have been breached by this latest example of ‘justice Cambodian style’.
Hell will freeze over before I pay $1 to APLE. I will, however, appeal its verdict, if the Phnom Municipal Court can bring itself to provide me with the documents I am entitled to in accordance with the Cambodian Code of Criminal Conduct.
Am feeling a new lease of life, having been declared to be only 46 years old by APLE J
June 20th 2010

Journalist Andrew Drummond publishes an article in which Yang Dany refers to David Fletcher as her ‘sweetheart’, her ‘boyfriend’, her ‘fiance’ and as a ‘good man’.

These are not the descriptions one would expect a young woman to use when talking about a man who had, according to later testimony,  ‘brutally raped’ her 15 months earlier – on 15th and 22nd March 2009!

Andrew Drummond had been provided with no evidence at all that Fletcher had  raped Yang Dany or been ‘grooming’ girls.

23rd June  2010

APLE  informs the Department of Anti—Human Trafficking and Juvenile Protection that APLE has been “watching” Mr Fletcher since 22nd Jan 2009 on the grounds that the NGO “suspected he may have sexual relationship with minor girls.”

Despite having been ‘watching’ Mr Fletcher for 17 months, APLE had yet  to come up with any evidence of inappropriate sexual behavior on Mr Fletcher’s part. This 17 months of ‘watching’ includes 15th and 22nd March 2009 - the dates when, it is alleged, Mr Fletcher raped Yang Dany.

An extract from this 23rd June APLE Report reads:

“On 30 May 2010, Mr Fletcher had built a relationship with a new girl at Stoeng Meanchey named Yang Dany, aged 17 (according to Residence Book). At that day he took her to visit Prey Veng. According to questioning, Dany told that Mr Fletcher was her sweetheart, and he proposed marriage to her by promising that he would give bride price in the amount of $5,000. On 7th June Mr Fletcher took some items like glasses, plates, wardrobe to Dany’s house and stayed there till over midnight without returning.”

Other than the innuendo inherent in “stayed there till over midnight” there is no suggestion in this APLE report that Mr Fletcher had had either consensual or non-consensual sex with his ‘sweetheart’ Yang Dany.

25th June 2010

Department of Anti-Human Trafficking and Juvenile Protection files a report of its own - the subject of which is the allegation that David Fletcher was “suspected of having sexual relationships with minors.”

The outcomes of the Anti-Human Trafficking investigation relevant to the charge of rape are, according to court documents, as follows:

“A girl named Yang Dany described that in May 2010, Fletcher tried to get in touch with her and asked her to go sightseeing with him in Prey Veng province. She revealed that Fletcher was her boyfriend and that he had asked to marry her by offering her a dowry of $5,000. The man bought her glasses, plates and wardrobe.”

There is no reference at all in this Anti-Human Trafficking report to Mr Fletcher having raped Yang Dany twice in 2009. There is no suggestion, in the report that David Fletcher and Yang Dany had engaged in either consensual or non-consensual sex. The very worst offence Mr Fletcher could be accused of, on the basis of this Anti-Human Trafficking report, is that he asked her to go to Prey Veng and offered to marry her and pay $5,000 bride price.

The request made by the Anti-Human Trafficking Unit on 25th June 2010 reads as follows:

“To continue to work with APLE to monitor the activities and locate victims for interviews to collect evidence against the suspect.

To work with the British Embassy and CEOP organization to collect additional related information and background of David John Fletcher.

In the event of lack of charging evidence and citing his dangerous behaviours on Cambodian children, the department hereby.”

From these observations, to be found in court documents, certain assumptions can be made:

- APLE, the Anti-Human Trafficking unit, the British Embassy and CEOP had been working together in hopes of finding evidence of ‘dangerous behaviours on Cambodian children’ prior to 25th June 2010.

- APLE, the Anti-Human Trafficking unit, the British Embassy and CEOP had not, as of 25th June 2010 uncovered any evidence at all that Mr Fletcher had raped Dany, had sex with her or had committed “dangerous behaviours on Cambodian children.”  

24th July 2010

David Fletcher accused of “sexual carnal knowledge offense commitment on some of children in Cambodia”. 

No such evidence had existed 4 weeks previously but now, in the wake of Andrew Drummond’s 20th June 2010 article, there is sufficient evidence to warrant Mr Fletcher’s arrest for raping Yang Dany!

What new evidence had come to light in the previous 4 weeks? Other than Yang Dany’s declaration that she had been raped 15 months earlier by the man she described as her ‘fiance’ and under the noses of 4 different investigating bodies monitoring Fletcher’s activities?

June 27th, 2010 

David Fletcher arrested in Bangkok.

Now, with this chronology in mind, gleaned from court documents, lets look again at APLE’S 15th Sept Press Release:

“As a result of the testimony made by the victim and a complaint filed by her mother, APLE offered legal representation to the victim. Mr Fletcher, however, had already left the country and was in Thailand at the time. He was arrested and detained in Thailand.”

By implication APLE is confirming here that it played a role in the arrest in the arrest and detention of Fletcher in Thailand. However, the time of Fletcher’s arrest, Sekun and Dany have not alleged that Fletcher raped Dany. Two days before Fletcher’s arrest there are nothing but allegations. One week before his arrest he is a ‘good man’ and Yang Dany’s ‘husband to be’; her fiancé.

How does APLE explain the discrepancy between the dates it has given in its press release (vague, to say the least!) and the dates that appear in court documents?
Article 44. Opening of Judicial Investigation
In the case of a felony, the Prosecutor shall open a judicial investigation. (1) The judicial investigation shall be based upon the initial submission provided to the investigating judge. The judicial investigation may be opened against identified or unidentified individuals.
The initial submission (to be prepared by the Prosecutor) includes:
  A summary of the facts; (2)
  A legal qualification of the facts;
  The indication of relevant provisions of the criminal and sanction for offense;
  The name(s) of the suspects, if known. The initial submission shall be dated and signed. These formalities shall be strictly complied with or the initial submission shall be void. (2)
COMMENT: Is there an ‘initial submission’ that contains a ‘summary of the facts’?

Article 93. Interrogation Records
      Judicial police officers may order to appear or bring any person who is suspected of committing an offense to their offices. Judicial police officers shall interrogate any such person.
      For each interrogation, a written record shall be established. (3)
      The written record shall be an accurate account of the interrogated person’s responses.(3)  If it is necessary, judicial police officers may use an interpreter/translator who shall take an oath according to his own religion or beliefs. The interpreter/translator shall not be chosen from among the police or military police or any person with a connection to the case.
      The interrogated person shall sign or affix his finger-print to each page of the written record.(3)
      Before signing or affixing the finger-print on the written record, the interrogated person shall re-read the record. If necessary, a judicial police officer shall read the record aloud. Judicial police officers may call for an interpreter/translator. If the interrogated person refuses to sign or affix his finger-print on the written record, the judicial police officer shall so note on the written record.
COMMENT: I have not been ‘interrogated’ and nor have I affixed my finger print to any written record.

Article 124. Introductory Submissions
In compliance with Article 44 (Commencement of Judicial Investigation) of this Code, a judicial investigation is opened by the introductory submission of the Royal Prosecutor. (6)
As provided in the Article 44 (Commencement of Judicial Investigation), paragraph 2, a judicial investigation can be opened against one or more persons whose names are specified in the introductory submission or against unidentified persons.
An investigating judge may not conduct any investigative acts in the absence of an introductory submission. (6)
COMMENT: Is there an ‘introductory submission’?

Article 127. Investigation of Inculpatory and Exculpatory Evidence
An investigating judge, in accordance with the law, performs all investigations that he deems useful to ascertaining the truth.
An investigating judge has the obligation to collect inculpatory as well as exculpatory evidence. (7)
COMMENT: in addition to not being told that charges had been brought against me, in addition to not been notified that I had been summonsed to court, nor have I been given any opportunity to present an Investigating Judge with ‘exculpatory evidence’.

Article 133. Investigative Actions Requested by Charged Persons
At any time during a judicial investigation, the charged person may ask the investigating judge to interrogate him, (8) question a civil party or witness, conduct a confrontation or visit a site. The request shall be in writing with a statement of reasons.
If the investigating judge does not grant the request, he shall issue a rejection order within one month after receiving the request. This order shall state the reasons. The Prosecutor and the charged person shall be notified of the order without delay.
COMMENT: I have not asked an investigating judge to ‘interrogate’ me as I was only informed of the existence of this court case after it had occurred.

Article 143. Notification of Placement under Judicial Investigation
When a charged person appears for the first time, the investigating judge shall check his identity, inform him of the imputed act and its legal qualification, and receive his statement after informing him of the right to remain silent. This notification shall be mentioned in the written record of the first appearance. (9)
If the charged person is willing to answer, the investigating judge shall take the statement immediately.
The investigating judge shall inform the charged person of his rights to choose a lawyer or to have a lawyer appointed according to the Law on the Bar. (10)
COMMENT: If I had been invited to attend the court I would not have remained silent but would have presented exculpatory evidence – if, that is, the evidence against me was provided to me!

The option of choosing a lawyer was not available to me as I did not know (a) that I had been charged with an offence or (b) that I was required to attend court. The latter would have been difficult anyway as I live in Australia. With some notice, however I could have (and would have) travelled to Cambodian to appear in court and defend myself.
Article 145. Presence of Lawyer during  Interrogation
When a charged person has a lawyer, the investigating judge shall summons the lawyer at least five days before the interrogation takes place. (11) During that period, the lawyer may examine the case file.
A charged person can be interrogated only in the presence of his lawyer. (11) However, if the lawyer was properly summonsed but does not show up on the specified date and time, the investigating judge can question the charged person without the presence of his lawyer. The absence of the lawyer shall be noted in the written record of the charged person’s interrogation.
COMMENT: At the risk of belabouring the point, I had no idea that I was due in court today – precisely the same dynamic that prevailed in the case brought against me by Citipointe.

Article 252. Mandatory Rules
The rules and procedures stated in the following Articles regarding general provisions are mandatory and shall be complied with, otherwise the activities shall be null and void.
  128 (Assistance of Court Clerks) of this Code. Proceedings shall also be null and void if the violation of any substantial rule or procedure stated in the Code or any provisions concerning criminal procedure affects the interests of the concerned party. Especially, rules and procedures which intend to guarantee the rights of the defense have a substantial nature. (16)
COMMENT: There is not one part of the Code of Criminal Procedure in this matter that has been adhered to by the Phnom Penh Municipal Court.

Article 318. Establishment of Order in Hearing
The presiding judge shall conduct and lead the trial hearing. The presiding judge shall guarantee the free exercise of the right to defense.

COMMENT: I have been provided with no opportunity to defend myself.

Article 321. Evidence Evaluation by Court
Unless it is provided otherwise by law, in criminal cases all evidence is admissible. The court has to consider the value of the evidence submitted for its examination, following the judge’s intimate conviction.
The judgment of the court may be based only on the evidence included in the case file or which has been presented at the hearing. (20)

COMMENT: I have not been given an opportunity to present evidence in my defense as I have not been provided with evidence of the crimes I am alleged to have committed.

Article 325. Interrogation of Accused
The presiding judge shall inform the accused of the charges that he is accused of and conduct the questioning of the accused. (21) The presiding judge shall ask any questions which he believes to be conducive to ascertaining the truth. The presiding judge has a duty to ask the accused both inculpatory and exculpatory questions. (21)
COMMENT: I have not been informed of any charges against me. I have not been questioned by anyone – the police, an Investigating Judge, a Presiding Judge or anyone else.

Other than APLE’s Press Release  of 8th Feb 2017 I know nothing of this case at all.