Ian Charles Tracey (or Tracy) a UK expat living in Thailand convicted of child sex abuse charges in 2011 by the Region 2 Court of Appeal in Thailand has been released on bail pending review of his case by the Supreme Court.
Tracey was re-arrested in August 2012 following the Region 2 Court of Appeal finding that the lower Court had made an error, and entered a judgement of conviction and sentenced him to 4 years in prison for the sexual abuse of a 14 year old boy.
The Region 2 Court of Appeal reversed the decision of the lower Court finding :
'The witness and evidences presented by the Defendant lack sufficient weight to disprove the Prosecutor’s evidences.
Therefore, the Court of Appeals, Region 2 does not agree with the judgment of the Court of First Instant and the Prosecutor’s appeals sound reasonable.
The Court hereby revises the judgment and issues an Order that the Defendant is guilty pursuant to Criminal Code Section 277 first paragraph, Section 283bis, second paragraph, one offense against several provisions of law pursuant to Criminal Code, Section 277, first paragraph, the Section with the severest punishment under the Criminal Code Section 90, and now sentences him to a term of 4 years' .
Note : A full copy of the judgement of the Court of Appeal in Thai and an English Translation is reproduced at the foot of this post.
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| Ian Charles Tracey - Re arrested in 2012 |
Tracey served 16 months of his 4 year sentence before being granted temporary release, and if his appeal to the Supreme Court is successful he will be finally cleared, and if not could be returned to Nong Palai Prison to serve the remaining two and a half years of his sentence.
The victim described his abuser as 'a foreign man with tall and thin figure, sharp eyes and
prominent nose, white complex and blond hair'.
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| Ian Charles Tracey - Arrest Warrant |
The Region 2 Court of Appeal issued an arrest warrant (shown above)bnm in July 2011 when Tracey failed to appear at Court - Tracey later filed documents with the Court to show he had not received the documents and the Supreme Court of Thailand has now given him leave to appeal.
Tracey (or Tracy) was a close friend of US Expat Gregory James Miler, recently jailed for 38 years in Pattaya for child abuse.
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TRANSLATION
(OFFICIAL EMBLEM)
For Court Use
O (Or.2)
Judgment Black Case No. 739/2552
Red Case No.45/2554
In the Name of His Majesty the King
The Court of Appeals, Region 2
Date: 14 January 2011
Criminal Case
Public Attorney, Office of the Attorney-General - Pattaya……...........................Prosecutor
Between
Mr. John or Tracey Ian Charles ……………….………………………….…… Defendant
Subject: Rape, Sexual Abuse, Sexual Offence
The Prosecutor filed Appeal against the Court’s judgment Pattaya Provincial Court Dated 25 December 2008 Court of Appeals, Region 2 Dated 24 March 2009
The Prosecutor filed charges saying that on 15 May 2008 during night time before midnight, the Defendant had taken Master Ninthawat Chaemchan, about 14 years of age, to commit indecent acts under the damaged person’s consent. The Defendant had abused the damaged person by inserted the Defendant’s sexual organ into the damaged person’s mouth, pushed and pulled for several times and requested the damaged person to hold the Defendant’s sexual organ by hand to slide it back and forth for several times under the damaged person’s consent.
The incident took place in Nong Prue Sub-district, Bang Lamung District, Chon Buri Province, thus may the Court mete out punishment pursuant to Criminal Code, Sections 91, 277, 283bis.
The Defendant denied the charges.
After due consideration, the Court of First Instant dismissed the charges.
The Prosecutor filed appeals.
The Court of Appeals, Region 2 has verified the statements, held meeting for discussions and foundout facts at this stage, without the litigant’s argument, which could be settled about the damaged person.
Master Ninthawat Chaemchan, born on 26 October 1993, about 14 years of age, that on 19 May 2008, Pol.Sen. Sgt. Maj. Sompong Srisunthon together with officers from “Child Protection and Development Center” had brought the said child to file a complaint to the Investigative Officers for legal action against the Defendant. On 26 May 2008, the damaged person testified, before the Investigative Officer and the public attorney including the social officers, according to the Memorandum of Testimony given by the damaged person as per Exhibit Jor.6. Later, Pol. Sgt. Maj. Uthen Srisamut had obtained from the Court the Warrant of Arrest and the Search Warrant according to copy of Warrant of Arrest and Search Warrant as per Exhibits Jor.2 and Jor.3, and headed to arrest the Defendant at House No.44/97, Sap Sombat Village, Nong Prue Sub-district, Bang Lamung District, Chon Buri Province.
The Defendant denied the charges according to the Memorandum of Arrest as per Exhibit Jor.4. This case has problems that need determination as to whether or not the Defendant had committed the offence according to the Prosecutor’s appeals.
The Prosecutor having the damaged person come to testify that before the incident took place, the damaged person was residing with his friend at Suni Lane, without any guardian to take care of him. The damaged person was residing with his friend, Master Bang. The damaged person confirmed that the person shown in the photo as per Exhibit Jor.5 is Mr. Ian, called by the damaged person as Mr. Marijuana (Kancha) and confirmed that Mr. Ian was the Defendant who sits in the court’s room. Initially, the damaged person’s friend introduced him to the Defendant and advised the damaged person to ask for money from the Defendant, whereby the Defendant gave the damaged person Baht 100 each time of request. The Defendant has never requested the damaged person to perform oral sex for him. However, if the damaged person provided sexual service, he would receive Baht 500 - 1,000 each time of service. However, the reason why the damaged person testified that he performed oral sex for the Defendant was due to he was instructed by the Tourist Police who threatened to sent him to stay at the Juvenile Observation and Protection Center for 10 years, but thedamaged person did not tell the officer of “Child Protection and Development Center”, who were there at thetime, that he was threatened by the Tourist Police and the damaged person pointed out the Defendant’s house due to received money from the officer of “Child Protection and Development Center”.
The damaged person knew the Defendant, but had never performed oral sex for him. However, the Police Officer requested the damaged person to testify during the investigation stage that the Defendant asked him to perform oral sex. In fact the Defendant had never requested the damaged person to perform oral sex for the Defendant and now the damaged person has testified as such voluntarily without threat or coerce from any person, at the Office of Attorney General, Pattaya Province, in front of the Investigative Officers and the Officers of “Child Protection and Development Center”. The Social Officer had read out the Memorandum of Testimony as per Exhibit Jor.6 to the damaged person who confirmed it to be true only on the part mentioned that the damaged person was in the Defendant’s house and the damaged person had privately invented the story of sexual abuse by himself. While in the Office of Attorney General, Pattaya Province, the Investigative Officer showed the photocopy of the Defendant’s Passport to the damaged person who confirmed that Mr.John and Mr. Ian are different persons.
On the date that the damaged person was in the Court, he wa saccompanied by a lawyer who was working for the Office of the Defendant’s advocate. Pol. Sen. Sgt. Maj. Somphong testified as a witness that at the time of incident, he was working at the Tourist Police Division of Pattaya City and was assigned by his superior to investigate into the matter of foreigner and child sexual abuse.
On 18 May 2008, the witness met the damaged person who informed him that a foreigner namely, Mr. John whose surname was unknown, had led the damaged person to Sap Sombat Village, Village No.9, Nong Prue Sub-district, Bang Lamung District, Chon Buri Province, and then Mr. John asked the damaged person to perform oral sex for him. Therefore, the witness reported it to his superior who in turn asked him to bring the damaged person to file a complaint to the Investigative Officer at the Pattaya Police Station. The witness set off with officials of “Child Protection and Development Center” to see the damaged person, a child without guardian, residing in area of Suni Lane, inside VC Pattaya Lane, where Pol. Lt. Col. Prachuap Sentha, Investigative Officer, testified that on 19 May 2008, Pol. Sen. Sgt. Maj. Somphong together with officers from “Child Protection and Development Center” has brought the said child to file a complaint to the Investigative Officer saying that on 15 May 2008 at approx. 20:00 hours, the damaged person was led by a foreigner, whose actual name was unknown and nickname “John” unknown surname, to his house in Sap Sombat Village, Village No.9, Nong Prue Sub-district, Bang Lamung District, Chon Buri Province.
Then, Mr. John asked the damaged person to perform oral sex for him. Hence the witness has compiled the evidences and asked for Warrant of Arrest, from Pattaya Provincial Court, to arrest Mr. John. The witness had inquired the damaged person and found out that before the damaged person went to see Mr. John, the damaged person was contacted by Master Bang to provide sexual service for Mr. John - unknown surname, residing in Sap Sombat Village, for sexual service at the wage of 1,500 baht per service. Later, the damaged person went to Sap Sombat Village and met Mr. John who asked the damaged person to perform oral sex for him.
Subsequently, on 19 May 2008, the Officer of Tourist Police Division, jointly arrested the Defendant and delivered him to the witness, who had inquired the damaged person at Pattaya Office of Attorney General, jointly with the Public Attorney and the Officers of “Child Protection and Development Center”.
During the interrogation process, the witness showed the Defendant’s photo to the damaged person who confirmed that the person in the photo, as per Exhibit Jor.5, was Mr. John - unknown surname, who asked the damaged person to perform oral sex for him. It could be seen that the incident that gave rise to such investigation and the arrest ofthe Defendant was based on Pol. Sen. Sgt. Maj. Somphong’s testimonies that the witness had inquired the damaged person who told him that Mr. John - unknown surname, a foreigner had asked the damaged person to perform oral sex for him at Sap Sombat Village, Village No.9, Nong Prue Sub-district, Bang Lamung District, Chon Buri Province. However, after the witness had inquired the damaged person,later the damaged person replied to the cross-examining questions of the Defendant’s lawyer that it was due to the Police Officer had arrested the damaged person for urine test to find out narcotic substances and he was asked by the Police Officer as to whether or not he had been sexually abused by any foreigner, hence the damaged person informed the Police Officer about the said incident. After that, the Police Officer had conducted investigations and asked for the Court’s Warrant of Arrest to arrest the Defendant on 19 May 2008.
Later, on 26 May 2008, after the Defendant was being arrested for 7 days, the Investigative Officer had inquired the damaged person in front of the public attorney and the social officer, whereby the damaged person testified at the interrogation stage about the occurrence of the incidents in sequence order which sounds reasonable.
It began with Mr. Bang persuasion to provide sexual services to foreigner, until achieve orgasm either orally or manually, in exchange for wages. Later, the damaged person and Master Bang visited House No.44/97, Sap Sombat Village, Nong Prue Sub-district, Bang Lamung District, Chon Buri Province, and met a foreign man with tall and thin figure, sharp eyes and prominent nose, white complex and blond hair. Master Bang called him briefly as “John”, who was then mixing marijuana with cigarette for smoking. Later, Mr. John gave money to Master Bang to buy marijuana and Mr. John led the damaged person to his bedroom on the 2nd floor, turned on the Video, showing to the damaged person, the intercourse between a man and a woman.
Later, Mr. John took off his Jean pants and shirt and lay on his back on a bed and asked the damaged person to take off his own clothes. Mr. John, who did not wear any condom to cover his sexual organ, asked the damaged person to perform oral sex and used his hand to hold Mr. John’s sexual organ. During this time, Mr. John would like to use a chain to link the boy arms, but the boy refused.
The damaged person performed oral sex for Mr. John, push and pull for several time alternately with using his hand to hold Mr. John’s sexual organ to slide up and down for several times, total 1 hour until reached orgasm, and Mr. John gave 1,500 Baht to the damaged person. After Master Bang returned, the damaged person together with Master Bang left the house. This is sound reasonable without conflict against natural facts and it was told while the damaged person was unprepared and had no chance to alter the facts to assist or blame anyone. Furthermore, the said fact was privately known by the person in actions and difficult to invent such story by himself, thus it can be believed that at the Investigation stage, the damaged person had testified in front of the Investigative Officers, public attorney and social officers, in truth according to the experiences he really gone through. At the time of the Defendant’s arrest, the damaged person looked at Mr. Tracy’s photo and confirmed that the man and Mr. John is the same person.
However, later during the hearing process, when the Prosecutor asked the damaged person to look at the Defendant’s photo as per Exhibit Jor.5, but the damaged person testified that the man in the photo was Mr. “Ian” or the person called by the damaged person as Mr. Marijuana (Kancha) was the Defendant. Even though his later testified that Mr. John and Mr. Ian are different person and the damaged person did not perform oral sex for the Defendant and he had to testify in the beginning according the Tourist Police’s advice, or else he would be sent to the Juvenile Protection Center for 10 years, which deemed as unreasonable testimonies given to deviate the facts. The damaged person’s testimony during the investigation stages was truer to the facts than during the Court’s hearing. Even though the damaged person had claimed that the foreigner’s name “John” was not his actual name, but this is a normal since majority of child sexual offenders often concealed their actual names and surnames to prevent lawsuits. The fact is when the house of incident, that the damaged person had testified and confirmed to the Investigation Official, was visited by the Police Officers with Warrant of Arrest and Search Warrant, it was found out that the Defendant was the only one foreign man living in the house, therefore, it can be truly believed that Mr. John who abused the damaged person on the date of incident and at the house of incident, was Mr. Tracey Ian Charles - the Defendant. It is deemed that the evidences presented by the Prosecutor were linking more reasonably to the facts, thus the weight thereof is sufficient to believe without doubt that on the date and at the place of incident as sued, the Defendant had asked the damaged person to perform oral sex for the Defendant, which was a sexual abuse against the damaged person, hence the Defendant’s act was an offence against law as charged.
Regarding the Defendant’s evidence that on the date of incident he was teaching English at Pattaya Operate Foundation from 17:00 until 18:00 hours, and from 18:10 hours, the Defendant took his rented motorbike to return to the shop where it was rented according to the copy of Motorbike Lease Contract as per Exhibit No. Lor.1. Later, the Defendant went to Outback Bear Bar and sat there until about 22:00 hours and then traveled to stay at Thap Thongkham Hotel in Ayanyaprathet District, Sra Kaeo Province, according to the copy of documents issued by Aranyaprathet Border Checkpoint as per Exhibit Lor.2. However, the Defendant has no witness or evidences to clearly and accurately identify that on the date of incident, the Defendant was teaching English at the said foundation and his Motorbike Lease Contract was only for 4 days commencing from 31 March 2008 and valid until 4 April 2008, that was about 1 month before the date of incident while the evidence of motorbike return showed that it was returned and accepted on 28 May 2008, which was after the date of incident, not on the incident date as claimed by the Defendant. Furthermore, Miss Chanida Chompattana had testified as the Defendant’s witness that on the incident date, about 18:00 hours, the Defendant was sitting in her bar, where the witness was working and supervising the bar. The Defendant was sitting there until 24:00 hours. Before leaving the bar, the Defendant said he was going to renew his Visa at Aranyaprathet, but the Defendant brought no suitcase and carried no extra clothes for changes while staying at the said hotel. This is contradicted against reasons because if the Defendant was leaving for the said hotel in Sra Kaeo Province, a long distance away, the Defendant should not come to sit at the bar from 18:00 until 24:00 hours and then traveled after midnight, this also contracted against proper reasons.
The witness and evidences presented by the Defendant lack sufficient weight to disprove the Prosecutor’s evidences.
Therefore, the Court of Appeals, Region 2 does not agree with the judgment of the Court of First Instant and the Prosecutor’s appeals sound reasonable.
The Court hereby revises the judgment and issues an Order that the Defendant is guilty pursuant to Criminal Code Section 277 first paragraph, Section 283bis, second paragraph, one offense against several provisions of law pursuant to Criminal Code, Section 277, first paragraph, the Section with the severest punishment under the Criminal Code Section 90, and now sentences him to a term of 4 years.
Mr. Wichian Boranwat -Signature-
Mr. Rakkiat Watthanaphong -Signature- (Court Seal Affixed)
Mr. Thanakhom Limphakdi -Signature
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| Ian Charles Tracey - Court of Appeal decision (Thai) |
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| Ian Charles Tracey - Court of Appeal decision (Thai) |
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