Kay Danes - international author & humanitarian

Legal Summary of the Danes Case
(What really went on?)

Kerry and Kay Danes are an Australian husband and wife who were unlawfully arrested on 23 December 2000 by authorities in the Lao People's Democratic Republic ("the Lao PDR"). The Danes were arbitrarily detained in a detention centre in Vientiane, Laos for six months without any formal charges being laid against them until formal charges were laid on 13 June 2001.

Australian Lawyer representing the Danes - TED TZOVARAS: "It was necessary - it was critical - for me to work behind the scenes. We had no idea what the allegations were. We had to build our defence on the basis of what we anticipated the charges might be. But it had nothing to do with the legalities, because the legal system in Laos is not developed. You do not fight it as a legal battle. It is a persuasion exercise and it is... and you have to persuade the government officials, not the judges."

On 28 June 2001, the Danes were taken to the Lao Municipal Court in Vientiane where they faced trial.

JONATHAN THWAITES, Australian Ambassador : "While all of these legal manoeuvrings were going on, the embassy was employed day after day speaking to a whole range of Lao authorities, up to the most senior levels in the country. It's certainly not for me to make a pronouncement on this subject, but in the opinion of anybody that really knew what was going on, the Danes had no case to answer. "

The Danes were convicted of Embezzlement, Destruction of evidence and Violation of Lao tax regulations. They were sentenced to 7 years imprisonment, and ordered to pay compensation and a fine totalling approximately US$530,750.

TED TZOVARAS: The only words we had by way of charges, with no further particulars, were "embezzlement, tax evasion, destruction of evidence. The trial lasted five hours. A trial such as that in Australia would take at least four weeks. The judgment was delivered within 25 minutes after the court went to recess. It was already typed. Under the Lao legal system no-one has ever been acquitted once charged.

Despite repeated requests, no particulars of these charges or convictions have ever been provided to the Danes, their Lawyers, or the Australian Government. Similarly, at no time have the Prosecution or any other Lao authority provided the Danes, their Lawyers, or the Australian Government, with copies of any statement or document which were apparently relied upon by the Prosecution at the Court hearing. The preparation of a defence for the Danes was made even more difficult because of a refusal by the Lao authorities to allow the Danes lawyers to interview Kerry and Kay Danes and obtain their detailed instructions. In preparing for the laying of charges against them, the Danes lawyers were left with no alternative but to rely on rumours and otherwise guess the nature of the likely allegations that the Lao authorities would make against them.

JONATHAN THWAITES: It's very difficult for the Lao authorities to accept that there's anything much wrong with a situation where people may take the rap for something that they didn't do. As they said to us on a number of occasions, if the Danes had been released, where does that leave us? How can we get the compensation for all the damage that has been done to the Lao people over the years by Gem Mining Lao? Don't be too fussed about the connection between the Danes and Gem Mining Lao. The Danes are all we've got left.

How to lodge a Legal Defence when you don't know what the charges will be!

In compiling the detailed brief, the Danes Lawyers had to search for, collect and compile evidence, including depositions from every available witness, and comprehensive supporting documents, to refute the allegations which ultimately comprised the formal charges whilst completely in the dark as to their nature. Despite of these difficulties, the depositions and supporting documents for the Defence which were ultimately compiled overwhelmingly established the innocence of Kerry and Kay Danes of the charges made against them.

Copies of these depositions and supporting documents in the English and Lao languages were provided to the Prosecution and other relevant Lao officials and lodged by the Danes Lawyers with the Vientiane Municipal People's Court prior to the hearing. Although a 315 page book of evidence, conspicuously stood on the bench before the Presiding Judge of the Vientiane People's Court on the day of the hearing on 28 June 2001, at no time did the Court time refer to, or even open, the bound volume containing the evidence. Whenever any reference was made to the defence papers at the hearing by the Lao lawyer appointed by the Danes to appear for the Danes, the President of the Court rejected it and cautioned the Lao lawyer against mentioning the matter further.

The hearing was not conducted on the basis that the Danes were innocent until proved guilty. It was conducted as an interrogation of the Danes by the 3 Judges and, to a lesser extent, by the Prosecutor. Un-judicious aspects of the hearing, included:

The Danes were given no prior notice of the charges against them;
The Danes were given no opportunity to prepare a case in answer to such charges;
They were not allowed to present any case in defence at the trial;
They were not allowed to ask questions of any Prosecution witness or challenge the tender of any document by the Prosecution;
The hearing took only 5 hours to conclude, a period clearly inadequate to consider the charges or the evidence. A case of this nature conducted in an Australian Court, would have taken the best part of 20 hearing days;
No independent interpreter was provided;
The Lao defence lawyer was compelled by the Court to act as the Court's interpreter as well as the Danes' lawyer, making it impossible for him to properly represent them. The poor acoustics at the Court made the proceedings inaudible or incoherent and, consequently, impossible for the Danes, the Ambassador or the Danes' Lawyer to follow the conduct of the hearing;
The Danes were required to stand throughout, and were constantly presented by the judges and prosecutor with previously formulated confessional statements in a most intimidatory manner, with a demand that they agree that these statements were true. When they tried to explain that they were baseless or false, or otherwise to provide their own explanation, they were told to remain quiet;
The Court repeatedly refused to refer to or take into account various parts of the depositions and documents, contained in the bound volume prepared by the Danes lawyers;
The Court relied on documents which would be inadmissible under the rules of a properly conducted judicial system. The Prosecution was allowed to file in court a photocopy of a document without explanation of the whereabouts of the original. Further, it was obvious that a signature of Kerry Danes had been photocopied from another, unrelated, document onto this document, to make it look like Kerry Danes had signed this document. Such forgery was allowed into evidence despite the protests of the Danes Lao lawyer; and

At the conclusion of the trial, the Court retired to consider its decision. It returned after less than 25 minutes. Its judgement was then read out in Court. It consisted of a 5-page pre-typewritten document.

In a case of this complexity, it was impossible for the three Judges within 25 minutes to have:
(i) deliberated over the evidence and the legal issues;
(ii) agreed upon a joint verdict of guilty for each of the charges;
(iii) formulated and agreed upon the reasoning behind their findings; and
(iv) for the Judgement to be written, typed, checked, corrected and put in final form.

> The only conclusion is that the conduct and conclusion of the hearing had been predetermined.

The judgement could only have been typewritten well in advance of the hearing and, indeed, prior to 13 June 2001 when the formal charges against the Danes were issued. It could not have been based upon the evidence given at trial, let alone the detailed brief prepared by the Danes lawyers. It is manifestly clear that these convictions would never have been entered against the Danes in any properly constituted or functioning Court of Law.

> So what were the charges?

Embezzlement of state assets. The Lao court convicted the Danes to four years imprisonment on the sole basis that it falsely alleged that the staff of Lao Securicor moved State assets without first seeking permission from the Laos Government to move the assets;
The assets were not State owned at the time;
The Laos authorities hadn't yet seized control of Gem Mining Lao;
Lao Securicor was contractually obliged to Gem Mining Lao;
Lao Securicor moved the office furniture and two computers belonging to Gem Mining Lao at their request and under advice from their respective lawyers;
The items were safely stored at Lao Securicor's security headquarters;
Six months later, all items were given to Laos authorities upon seizure of Gem Mining Laos;
The Laos Authorities did not arrest the Danes at the time of seizure, nor did they make any complaint at the way in which the assets were secured.

Destruction of evidence. The Laos Government falsely ordered that when Lao Securicor staff moved the two computers for storage that the data had been destroyed.
The data remained intact and a back up copy was stored at Lao Securicor;
Lao Securicor returned the computers at the request of Laos authorities upon seizure of Gem Mining Laos;
The Laos Authorities did not arrest the Danes at the time of seizure, nor did they make any complaint at the way in which the computers were secured.
The Lao authorities used the same data from the computers as evidence to convict the GML Directors, claiming the data was evidence that GML were stealing their own assets;
Neither of the Danes were employees of Gem Mining Lao and had no involvement in its day to day operation.

Violation of Lao tax regulations.The Laos Government incorrectly ruled that it was entitled to collect revenue from Kay Danes' International Bodyguard Company.
The company was established in Thailand and operated external to Laos, thereby it was entirely outside the jurisdiction of Laos;
The Laos Government was not entitled to any revenue from the company;
Taxes were rendered to Thailand and a full audit by KPMG chartered accountants refuted allegations of tax evasion;
Evidence submitted to the court proved that income tax was paid by the Danes to the Lao Tax Revenue Department over two years, for all income the Danes derived in Laos as employees of Lao Securicor Company Limited.

The Ambassador for Australia, Jonathan Thwaites and his staff attended throughout the trial and observed the hearing and all of the aspects the Lawyers for the Danes have referred to above. As a result of the report made by the Ambassador, the Australian Government shares the Lawyer's strong belief that the convictions against Kerry and Kay Danes should not be regarded by any Australian institution or Government or its agency as valid, and that no adverse inference should be drawn against either Kerry or Kay Danes arising out of these convictions.

> Notice to Appeal Rejected

On 9 July 2001, a Notice of Intention to Appeal was lodged on the Danes' behalf. A Statement of Reasons for the Appeal was lodged on 25 July 2001. On 7 September 2001 the People's Supreme Court dismissed the Appeal saying they had no grounds to challenge the Lao Court.

JONATHAN THWAITES: If Kerry with all his SAS training, with all his discipline and dedication, patriotism, is ever going to break, it's not going to be for physical reasons. It's going to be because he doesn't feel he can restore his good name, and that he has somehow been judged by his own people to be guilty of something that he absolutely didn't do.

> False media statements [Gem Smuggling]

The Danes were falsely labeled gem smugglers by the media because at the onset of the case, in order to detain the Danes, the Laos authorities declared that gem stones [sapphires] were missing. However, these were not the 1.7 tonne of sapphires that Lao Securicor had secured and returned at the request of the Laos Government upon seizure of Gem Mining Lao.

The 'missing gems' were 156 pieces of jewelry that belonged to Julie Bruns, a co-director of Gem Mining Lao. Evidence proved that these items were not an asset of Gem Mining Lao and therefore the Laos Government had no claim to them. Julie Bruns did, however, offer the jewelry to the NZ Ambassador in Bangkok to secure the Danes release. The Laos government rejected the offer, requesting instead, that the Gem Mining Directors return to secure the Danes release.

At one point it was reported that Kay Danes had 160Kg of sapphires in her underwear as she was attempting to cross the Lao-thai border, undetected, with her two children. The allegation was put to the media by the Laos secret police in order to create a smoke-screen.

TED TZOVARAS: They (Lao Police) were searching for stolen sapphires. She didn't have any, of course. Instead, they found $US52,000 cash on her. She was running a security business in Thailand, and that cash was for the purpose of paying wages and other expenses in the business. It was that cash more than anything else that created an impression, a false impression in Australia, that they were guilty of some sort of wrongful doing.

What people must realise is that it is perfectly legal and it is quite common for businesspeople to travel across the border with large amounts of cash for the purposes of transacting their businesses.

In the end, the cash at the border was a non-issue.

> Unprecedented Presidential Pardon

A Presidential Pardon in Laos is a mechanism of enabling a prisoner to be released from a conviction and any disabilities that attach as a result of the conviction, where there is no legal process available that would otherwise lead to a reversal of a conviction. At the time of the Danes case, a Presidential Pardon was unprecedented in Laos but an exception was made in their case. Kerry and Kay Danes were not expelled or extradited or transferred under any Prisoner Transfer Agreement which would, in those circumstances, mean that the convictions would remain in effect. They were granted a full Presidential Pardon and invited to return to Laos at any time.

As stated by an Australian Government official in 2006, "if there was any doubt whatsoever of the Danes innocence, the Australian government would have been obliged to utilise extradition proceedings."

It did not and thereby, supports the claim that the conviction was 'quashed'. Of most significant importance is that the Danes continued refusal to enter a plea of guilty, in the face of extreme pressure, torture, mock-executions, brutal interrogations, potential indefinite internment and the likelihood of death is only one of the many reasons why the Australian government supported them so decisively.

Kerry and Kay Danes remained incarcerated until 8 October 2001 when, following continuous representations, lobbying and negotiations made or engaged into by the Australian Government and their Australian lawyer, the Lao Government agreed to release Kerry and Kay Danes into the care of the Australian Ambassador to Laos on condition that they remain at the Ambassador's residence in Vientiane until a determination was made by the President of the Lao P.D.R. in respect of their application for a pardon.

JONATHAN THWAITES: They were living in this residence - the Australian official residence - and they were, in fact, as time went on, here for 31 days. That was a very intense period too. I don't think Kay would mind my saying that she was quite traumatised by the experience, and I think it will probably take her a long time to recover and get over the trauma of ten and a half months incarceration. I grew very fond of the Danes. I admire their compassion, I admire their humanity and I admire their discipline. Yes - I have to say that I finished up regarding them as real friends.

The President of the Lao P.D.R. granted a pardon to both Kerry and Kay Danes on 6 November 2001, which was attended by the Australian Ambassador, his staff and their Australian Lawyer and by a number of senior officials of the Laos Government. At the conclusion of the ceremony Kerry and Kay Danes were released unconditionally with the freedom to return to their home in Australia at any time. They were declared free in all respects and welcome to visit Laos at any time in the future.

Kerry and Kay Danes' release was the result of the joint efforts of the Australian Government and their lawyer in various forms of representations made to the Lao Government including;,
Letters from the Australian Ambassador in Laos, the Australian Foreign Affairs Minister Alexander Downer, the Australian Prime Minister John Howard and the Governor-General of Australia Sir William Deane;
Written legal and other submissions prepared by their lawyers. Formal and informal meetings held by the Australian Ambassador, the Australian Foreign Affairs Minister, a special Australian Envoy, other senior Australian officials and their lawyer;
Meetings with various senior Lao Government officials, including Ministers; and
Various informal and confidential lobbying activities most of which were undertaken by their Lawyer and persons engaged by their lawyer for such purpose.

The Australian Government has maintained to the Government of the Lao PDR, and still remains convinced, that this evidence overwhelmingly establishes that Kerry and Kay Danes had no case to answer.

> Statements by Australian Government Diplomats

Prior to the Danes Return to Australia:

"I am deeply disappointed and I have spoken to the families of both Kerry and Kay myself. The Australian Government is dissatisfied with the process which resulted in the conviction and sentencing of Kerry and Kay. I have had a personal briefin g from the Ambassador [Thwaites] and have asked him to explore avenues for further action and to report back to me. We will pursue all avenues to enable Kerry and Kay to come home." - Australian Foreign Minister Alexander Downer Following the Danes return to Australia:

"Kay and Kerry Danes were completely innocent." Said Foreign Minister Downer to an audience in the Cleveland electorate.

Kay Danes thanks Foreign Minister Alexander Downer (right) for bringing them home. She is pictured with her children (background) and Federal MP Andrew Laming (left).

> Other Danes Legal Links

Australian Minister for Foreign Affairs, Alexander Downer - Kay and Kerry Danes: Meeting with LAO Deputy Prime Minister
Questions Without Notice [Australian Government]
Australian Minister for Foreign Affairs, Alexander Downer Laos - Special Envoy
Envoy for Kay and Kerry Danes - Australian relations at critical point
Australian Minister for Foreign Affairs, Alexander Downer - Kerry and Kay Danes pardoned in Laos

Australian Story is televised on Mondays at 8.00 pm, and repeated on Saturdays at 12.30 pm, on ABC-TV.

The Danes Story was released: "On Their Honour" - click here

Standing Ground - click here