Kay Danes

The Danes Case

Securicor Manager, Kerry Danes, is abducted on 23rd December 2000 in Laos and taken to an undisclosed location in the capital (Vientiane). He is subjected to brutal interrogations by Lao Secret police, who try forcing him to sign false statements against Gem Mining Laos, in order for them to illegally seize the US$2 Billion dollar foreign investment.

The Australian Embassy, unable to locate Kerry Danes, attempt to evacuate Kay Danes and the couple's two children at the Lao-Thai border but their are intercepted by Lao Secret Police. Kay Danes is taken away to a secret prison on the outskirts of the city.

Over the next ten months, the Danes are forced to endure arbitrary detention, torture and mock executions, housed in one of the world’s most secretive communist prisons, home to scores of political prisoners and forgotten freedom fighters of the US backed secret war.


Corruption and State sanctioned torture sets the backdrop
to this very powerful, real life drama of one couple’s survival
against a regime out of control.



“We are doing everything we can to bring them home”
Former Australian Prime Minister John Howard


“Danes imprisonment disgraceful”- 
Former Foreign Minister Alexander Downer






The Danes Case escalates into an international diplomatic incident, threatening a 50 year bilateral relationship between Australia and the Lao PDR.  


Intense diplomatic pressure from the Australian Government and International Community forces the entire Lao Government into a position where they must find a face-saving solution or risk losing billions of dollars in foreign aid.

The Australian Government tells the Danes that the only way out for them is to be tried in a criminal court and then released through a negotiated pardon.

Kerry and Kay Danes resist interrogation, mock executions and torture up until 28 June 2001, when they are finally taken to a closed court to face trial.


No-one has ever been acquitted once charged because the Lao legal system does not allow for adversarial proceedings!


Two weeks before the actual trial, the Lao Public Prosecutor, in the presence of their lawyer, notifies the Danes (in prison) that they have been found guilty and, once the charges are decided, they will be taken to court and formally convicted .

The Australian Government reports to Canberra, a week before the trial, that the
Lao Public Prosecutor has briefed a Bangkok newspaper on the details of the judgement before it is even handed down.These concerns are treated with contempt by the Australian Government, and so the bilateral relationship becomes even more strained.

The trial is more like an interrogation as the Danes stand before a three judge panel making one last attempt to force them into signing a false statement against Gem Mining Laos.

In preparing a defence, Australian lawyer Ted Tzovaras
has little by way of charges.  "The only words we had by way of charges, with no further particulars, were embezzlement, tax evasion, destruction of evidence."

Ted Tzovaras works closely with the Australian Government to produce a 315 page 'book of evidence' to defend the Danes against false allegations. The book of evidence is translated into Lao Language and provided to the Prosecution and the Court prior to the hearing. It conspicuously stands on the bench before the Presiding Judges on the day of the hearing on 28 June 2001. At no time throughout the proceedings does the Court allow any reference to it. The President of the Court silences the Danes Lao lawyer. It is clear to everyone in the room that the Danes will be convicted. There is no doubt of it.

Australian Lawyer representing the Danes: "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."


A Five Hour Trial in a Closed Court

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 pre-typed.

 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 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.


“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of … any criminal charge against him.” Article 6, Universal Declaration of Human Rights to which Laos is a signatory to.

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. "


False Charges:

The Lao court convicted the Danes on the sole basis that Securicor staff moved State assets without first seeking permission from the Laos Government to move those assets. FALSE

  • The assets were not State owned at the time since the authorities hadn't seized control of Gem Mining Lao;
  • Securicor was contractually obliged secure the assets of Gem Mining Lao;
  • Securicor staff moved only office furniture and two computers belonging to Gem Mining Lao, at their request, and under advice from their respective lawyers to the security headquarters for storage;
  • 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.

The Lao court ruled that Securicor staff damaged the data when moving GML computers for storage. FALSE

  • The data remained intact and a back up copy was stored at Securicor's headquarters;
  • Securicor returned the computers at the request of Laos authorities upon seizure of Gem Mining Laos;
  • Laos Authorities did not arrest the Danes at time of seizure, nor did they complain the computers were secured;
  • Six months after the Danes arrest, Lao authorities claimed they used data from the same computers to convict, in absentia, the GML Directors of stealing their own assets;
  • Neither of the Danes were employees of Gem Mining Lao and had no involvement in its day to day operation.
The Lao Court ruled that it was entitled to collect revenue from Kay's Thai Consultancy. FALSE
  • Kay's consultancy was established in Thailand and operated external to Laos, outside the jurisdiction of Laos;
  • The Laos Government was not entitled to any revenue from a company outside its jurisdiction;
  • Taxes were rendered to Thailand and a full audit by KPMG chartered accountants refuted allegations of tax evasion;
  • Evidence submitted to a Thai court supported the Danes claim that taxes were paid appropriately;
    Evidence to the Laos court proved the Danes paid tax for all income they derived in Laos as employees of Securicor;
  • Lao Securicor was audited during the Danes incarceration and was found to be fully compliant with Lao law.

    The Lao court ordered Kay Danes to pay US$66,847 as a fine on the charge of tax evasion for revenue her Thai consultancy generated in Thailand is a violation of International Law. A State cannot demand revenue outside their jurisdiction. (State Sponsored Extortion)

    At the end of the court hearing,
    the Lao Court ordered the return of US$98,000 to the Danes, previously frozen in their Laos bank account, and US$52,000, the payroll for Kay Danes' Thai Subcontractors that had been seized at the Friendship Bridge at the time of her initial detainment. 


The Aftermath

On 9 July 2001, a Notice of Intention to Appeal to the Lao Supreme Court is lodged by the Danes lawyer. A Statement of Reasons for the Appeal is lodged on 25 July 2001. 

30 August 2001, the Australian Government takes over diplomatic negotiations. 

07 September 2001, the People's Supreme Court dismisses the Appeal saying there is to be no challenge. No one has ever successfully had their conviction overturned in the Lao Supreme Court.
 
04 October 2001, the Danes agree to a four point deal negotiated by the Australian Government to secure their release. They agreed to:

  • withdraw application of appeal to Supreme Court (it is already informally rejected);
  • agree to 'say' they will pay compensation [Australian Government advise no one expects actual payment];
  • sign a document acknowledging the court’s decision, but importantly to the Danes, not guilt;
  • refrain from making derogatory statements about Laos in the future.

05 October 2001, the Danes are released under house arrest to the residence of the Australian Ambassador. There they remain until the details of their departure from Laos is decided.


At the time, a Presidential Pardon was unprecedented in Laos. The Australian Government argue against expulsion and e
xtradition which would result in the convictions remaining in effect. They insist on a Presidential Pardon.



Australian Foreign minister Alexander Downer sends a task force and Special Envoy to Laos to negotiate the Danes' release. It is the first time an entire government is activated in such a high-level way to get its citizens home. A Presidential Pardon in Laos is a mechansim of enabling a prisoner to be released from a conviction and any disabilities attached as a result of the conviction, where there is no legal process available that would otherwise lead to a reversal of a conviction.





"If there was any doubt whatsoever of the Danes innocence, the Australian government would have been obliged to utilise extradition proceedings" - an Australian Government official (2006).


A full Presidential Pardon is granted on 6 November 2001
with an invitation to the Danes to return to Laos at any time.

  • 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.



    At the conclusion of the Pardon ceremony Kerry and Kay Danes are released unconditionally with the freedom to return to their home in Australia at any time. Their release was the result of joint efforts of the Australian Government, their lawyers and various forms of intervention from; 
    • The Governor-General of Australia Sir William Deane;
    • The Crown Prince of Japan Naruhito;
    • The New Zealand Embassy (Bangkok);
    • The Danish Government;
    • US Civil Rights Leader Rev. Jesse Jackson;
    • New York Judge David Corretore;
    • The Lao Government in Exile (Australian, US and French Chapters);
    • The Centre for Public Policy Analysis (Mr. Phillip Smith - former US National Security Advisor);
    • Don Scott, former US Intelligence Officer; and
    • Various media personnel.
    Kerry and Kay Danes return to Australia on 9 November 2001



    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.





    Testifying at US Congressional Forum with Exiled Laotians.  Former US National Security Advisor Philip Smith with Kay Danes at US Congress.
    Testifying on behalf of political prisoners at US Congressional Forum in Virgina.



    A FEW FACTS

    False reports of gem smuggling remain in archive media reports. Not ever was it reported that 1.7 tonne of sapphires that Lao Securicor had secured were returned at the request of the Laos Government upon the seizure of Gem Mining Lao PRIOR to the Danes unlawful arrest.

    The 'missing gems' were 156 pieces of jewelry that belonged to Julie Bruns, a co-director of Gem Mining Lao. Following her departure from Laos in May 2000, she presented evidence to the New Zealand Embassy in Bangkok that clearly proved these items were not an asset of Gem Mining Lao. Therefore the Laos Government had no claim to them. Julie Bruns offered the entire collection to the NZ Ambassador, as a ransom for the Danes release. The Laos government rejected the offer, requesting instead, that the Gem Mining Directors return to Laos, and which would result in the release of the Danes. Thus confirming that the Danes were hostages.

    The cash that Kay Danes declared to authorities at the time of her detainment, was part of a consultancy fee for a consultancy service she established in Thailand. The Danes lawyer submitted evidence that supported the carriage of cash legal, under Lao law, for the purpose of transacting businesses. The cash at the border was a non-issue and was later returned to Kay Danes.

    The Lao court violated numerous Articles of Law on Criminal Procedures. The court proceedings against the Danes were in violation of Articles 6, 8, 13, 17, 18, 20, 21, 28, 32, 33, 34, 35, 38, 43, 45, 46, 54, 57, 62, 73, 78, 79, 80, 86, 87, 117, 118, of the Lao PDR Law on Criminal Procedures. 

    In detaining Kay and Kerry Danes, the Lao authorities violated Article 65 Remand Law on Criminal Procedure that clearly states 'Persons remanded shall be detained separately from prisoners and shall be in appropriate conditions because such persons are regarded as innocent.

    The Lao court violated Article 171 of the Lao Penal Law states that any person using physical violence and torture, or other measures inconsistent with the law, against suspects or prisoners during arrest, trial or serving of sentence shall be punished by 3 months to 3 years of imprisonment or re-education without deprivation of liberty.

    The Lao authorities violated the UN Declaration of Human Rights and the International Convenant of Civil and Political Rights to which it became a signatory on 7 December 2000, prior to the Danes unlawful arrest.

    From 2002, those Lao officials who were responsible for the Danes unlawful detainment, have since been demoted from office or 'relocated' to an unknown location in Laos.

    The Laos authorities have never been held accountable for the gross miscarriage of justice against the Danes and thousands of others who have stood trial in Laos in violation of numerous international and national laws.
    Further reading here.


    WITNESS TESTIMONY OF THE DANES INNOCENCE
    14:23 mins into the video startling new evidence proves Danes innocence against claims of stolen sapphires




    Centre for Public Policy Analysis - Click here
    Standing Ground - click here
  •  
  • Proof of Miscarriage of Justice, Violations of Lao Law and International Law

    No prior notice of arrest via a warrant, no
    prior notice of the
    charges;

  • Denied access to a lawyer at arrest;

    Violations of
    Articles 6, 8, 13, 17, 18, 20, 21, 28, 32, 33, 34, 35, 38, 43, 45, 46, 54, 57, 62, 73, 78, 79, 80, 86, 87, 117, 118, of the Lao PDR Law on Criminal Procedures. 

    Danes not allowed to present witnesses or cross-examine witnesses or
    gain a copy of any documents submitted by the Prosecution to the court;

  • The Court relied on documents which would be inadmissible under the Lao Law. The Prosecution was allowed to file forged documents as evidence - biased editing of evidence;

    The Court repeatedly refused to refer to, or take into account various parts of the depositions and documents, contained in the bound volume 'book of evidence' prepared by the Danes lawyers;

    No independent interpreter in court. The proceedings were conducted in Lao Language. 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  false confessional statements in a most confrontational manner, with a demand that they agree that these statements are true. When the Danes attempted to refute the statements as false, they were silenced;

    Fabrication of evidence and perjury of police officers;

    The verdict given at the court was pre-typed in advance;

    The Prosecutor briefed a Bangkok newspaper of the verdict outcome two weeks prior to the court proceedings;

    The Court disregarded the articles of the UN Declaration of Human Rights, to which it became a signatory on the 7 December 2000, just two weeks prior to the Danes unlawful detainment.

    The Danes were subjected to arbitrary arrest, unlawful detainment, torture and mock executions. They were confined separately, in a cramped, overcrowded 3 x 3 meter cell, and fed a bowl of pig fat water soup and sticky rice (one bowl per room) - Amnesty International has documented evidence as to the treatment of prisoners and conditions. 

    In detaining Kay and Kerry Danes, the Lao authorities violated Article 65 Remand Law on Criminal Procedure that clearly states 'Persons remanded shall be detained separately from prisoners and shall be in appropriate conditions because such persons are regarded as innocent.

    The Lao court violated Article 171 of the Lao Penal Law states that any person using physical violence and torture, or other measures inconsistent with the law, against suspects or prisoners during arrest, trial or serving of sentence shall be punished by 3 months to 3 years of imprisonment or re-education without deprivation of liberty.

    Kerry Danes was confined to his cell for 5 months - 24 hrs a day and denied medical care.  

    Kay Danes was confined to her cell for 3 months - 24 hrs a day.

    The Danes were not allowed any contact with each other.

    Kay Danes was permitted a five minute phone call to her children after three months.

    The Danes were not allowed visitors at any time throughout their detainment.

    Letters from the Danes children were eventually allowed after several months.

    Foreign media was banned from entering Laos.


    For more information about the Lao Prison and Conditions: Click here


  • 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.



  •  
  • SECURITY AUDIT REPORT RELEASED TO LAOS GOVERNMENT BEFORE DANES ARREST, EXPOSING DESTRUCTION OF GEM MINING LAO ASSETS BY LAOS GOVERNMENT OFFICIALS: Click Here

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