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
FOR IMMEDIATE
RELEASE
“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
ADDENDUM # 1
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?
ADDENDUM
# 2
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.
