A Death Sentence Reviewed Automatically Is Final: No Cassation ศาลชั้นต้นลงโทษประหารชีวิตและคู่ความไม่อุทธรณ์ เมื่อศาลอุทธรณ์พิพากษายืนในความผิดฐานฆ่าโดยไตร่ตรองไว้ก่อน คดีถึงที่สุดตาม ป.วิ.อ. มาตรา 245 วรรคสอง จำเลยฎีกาไม่ได้

SUPREME COURT DECISION No. 5248/2537
Year: 1994 (B.E. 2537)
Relevant Code Sections: Criminal, Section(s) 288, 289

SUMMARY
The defendant was convicted of premeditated murder and sentenced to death at first instance. Neither side appealed, so the record went to the Court of Appeal Region 3 for review under Criminal Procedure Code Section 245 paragraph 2. That court agreed on premeditation and modified only the provisions cited, applying Section 289(4) alone. Because the Court of Appeal had affirmed the conviction on review, the case was final and no petition to the Supreme Court lay. The defendant's petition was dismissed without consideration of its merits.

FACTS OF THE CASE
The defendant prepared an iron pipe about one foot long and a machete, concealed them, and waited until the deceased was asleep before striking and cutting his head and face repeatedly, causing death.

COURT'S HOLDING
Where the Court of First Instance imposes the death penalty and neither party appeals, the court sends the record to the Court of Appeal under Section 245 paragraph 2 of the Criminal Procedure Code. Here the Court of Appeal Region 3 agreed that the defendant had killed with premeditation and altered only the provisions applied, holding that once Section 289(4) is applied there is no need to apply Section 288 as well. That amounted to affirming the conviction for premeditated murder, so under Section 245 paragraph 2 the case became final at that point and the defendant could not petition the Supreme Court. The Supreme Court declined to consider the petition and dismissed it.

LEGAL ANALYSIS
This is a decision about finality, not about premeditation, and the difference matters to anyone advising a defendant facing a capital sentence.

Section 245 paragraph 2 sends a death sentence to the Court of Appeal automatically when nobody appeals, so that no one is executed on the strength of a single court's view. The corollary, which this case settles, is that when the Court of Appeal agrees on review, the automatic review has done its work and the matter ends there. A modification that changes only which provisions are cited, without disturbing the finding of guilt, is still an affirmation for this purpose.

What the defendant lost was therefore the ordinary right to petition the Supreme Court, and he lost it because he had not appealed in the first place. The practical lesson is that the automatic review under Section 245 is not an extra tier added to the usual appeals; where it applies without an appeal, it can be the last word.

The case says nothing about what evidence establishes premeditation. The finding of premeditation was made below and was never in issue before the Supreme Court.

PRACTICAL IMPLICATIONS
A death sentence is reviewed by the Court of Appeal even when nobody appeals. Under Section 245 paragraph 2 of the Criminal Procedure Code the trial court sends the record up automatically, and where the Court of Appeal agrees with the conviction that judgment is final with no further appeal to the Supreme Court. A defendant facing a capital charge has to make the case at first instance and on that automatic review, because there is no later opportunity.

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Note: This is an English-language summary of the Thai original judgment.
For the authoritative Thai text, please refer to the Thai version above
or visit deka.supremecourt.or.th.