LEGAL CONSIDERATIONS
The Arrest and Detainment of Kerry and Kay Danes was by legal definition:
Wrongful and Arbitrary Detention
Introduction
Arbitrary detention exposes a victim to human rights violations where they are deprived of the means to defend themselves from extrajudicial execution, enforced disappearances, torture and other cruel, inhuman or degrading treatment etc. A more detailed discussion on 'arbitrary detention' is found on page 7 of Dr Danes' submission to the Senate. (Download)
Some of the key legislation and international agreements aimed at combating arbitrary detention, to ensure an individual’s rights are protected, include:
International Covenant on Civil and Political Rights (ICCPR) adopted by the United Nations General Assembly in 1966. The ICCPR is a cornerstone in the fight against arbitrary detention. Article 9 of the ICCPR explicitly states that everyone has the right to liberty and security of person. It prohibits arbitrary arrest or detention and mandates that no one shall be deprived of their liberty except on such grounds and in accordance with such procedures as are established by law.
Universal Declaration of Human Rights (UDHR), although not legally binding, the UDHR serves as a foundational document inspiring many national laws and international treaties. Article 9 of the UDHR states that no one shall be subjected to arbitrary arrest, detention, or exile. This declaration sets a global standard that influences legislation worldwide.
The official position of the United States Government: the Levinson Act, deals with the issue of arbitrary detention for US Citizens. In making assessments, the Department of State looks at the totality of the circumstances and considers factors including, but not limited to, the fairness of the judicial process, the veracity of the charges, and motivation or other circumstances surrounding or related to the arrest or the detention. The Levinson Act establishes a baseline criterion to determine whether there is, or is not, credible information that a US Citizen is unlawfully or wrongfully detained (refer to page 10 of the Submission).
LEGAL CONSIDERATIONS OF THE DANES CASE
Several aspects of the Danes case were indeed extraordinary and align with concerns about due process in Laos raised by various human rights groups:
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Lack of Arrest Warrants and Due Process: The absence of arrest warrants and the long detention periods before formal charges were laid are significant deviations from standard legal procedures. Laos has a law that allows for warrantless arrests in urgent cases, but this is sometimes used with excessive latitude, and the process of informing detainees and families can be delayed, particularly in rural areas.
In the Danes case, they were denied the presumption of innocence. Until proven guilty, every individual is presumed innocent. This fundamental principle is a cornerstone of justice systems worldwide. Arbitrary detention without clear charges not only undermines this principle but also casts significant doubt on the fairness and integrity of the legal process. At no stage leading up to the actual court hearing were the Danes (or their lawyers) notified of any charges, or charged with a criminal offense, which raised serious concerns to the Australian government about the legitimacy of their detention. The lack of formal charges and the indefinite nature of the Danes detention suggest a serious violation of their basic legal rights (even by Lao PDR standards).
Article 49 on Documentation of Arrest — the Lao Law on Criminal Procedure (1990) states that “Regardless of the case, arrests must be documented as evidence.” At no time, during or after, the detainment of either of the Danes, were arrest warrants issued. Article 47 on Arrests — the Lao Law on Criminal Procedure (1990) state that: The arrest of any individual must be accompanied by an order in writing from the public Prosecutor or the court. Refer to https://www.icj.org/se-asia-security-law/criminal-procedure-law-articles-26-32-42-46-to-48-and-50-1990/)
Aside from international treaties and conventions specifying the prohibition of torture and Ill-treatment, the Lao PDR law also prohibits the practice. Specifically, Article 47 on Arrests — the Lao Law on Criminal Procedure (1990) states that ‘Beatings and torture of the arrested are prohibited.’
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Closed-Court Proceedings and Language Barrier: Closed-court proceedings and the inability to understand the language used are serious impediments to a fair trial. This is especially concerning when lawyers are reportedly restricted in their ability to challenge evidence or present a defence. The Right to a Fair Trial is a universally recognised guarantee in the Universal Declaration of Human Rights—the cornerstone of the international human rights system. Adopted in 1948 by world governments, including Lao PDR, this right is legally binding as part of customary international law. Customary international law serves as a primary source of international legal obligations binding on all states, independent of their treaty obligations. These rules derive from generally accepted practices recognised as law. In the Danes cases pre-trial processes were violated (refer to page 25 of the submission). The Australian Embassy were not informed of the pending closed-court proceedings. As stated, the Danes themselves were not informed. The preparation of a legal defence was denied and relied only on rumoured allegations circulating at the time.
During the closed-court proceedings, the Danes stood before three judges and were not allowed to ask questions at any point. The prosecutor sought to coerce Kerry Danes into making false statements, in direct violation of the principles enshrined in international and Lao National laws. It is noted on the court record that the Lao Prosecutor presented a photocopied document as evidence, without revealing the location of the original. Kerry Danes’ signature had been photocopied from another unrelated document, making it appear as if Kerry Danes had signed the document. This forgery was permitted as evidence, which is a grave breach of legal standards. Moreover, the poor acoustics in the courtroom rendered the proceedings inaudible and incoherent. This made it impossible for the Danes, the Australian Ambassador, or the Danes’ Australian lawyer to follow the proceedings.
Article 57 of the Lao People’s Democratic Republic Constitution (1990) stands as a crucial legal safeguard ensuring that criminal cases are handled with a high degree of fairness and objectivity. According to this article, criminal cases must be dismissed when there is insufficient evidence to prove that the accused is the offender. Further, Article 57: Basis for Dismissal of a Case Criminal cases shall be dismissed: When there is no sufficient evidence to show that the accused is the offender. These principles underscore the importance of robust and compelling evidence in the administration of justice. Evidence must include proof of the defendant’s guilt as well as of their innocence, and it should be evaluated based on a comprehensive and objective consideration of the case. If the evidence casts doubts on the guilt of the accused, such person must be released from charges. At no point was any evidence produced that established the Danes’ guilt to the proffered charges.
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The wrongfulness of the Verdict: The verdict in the Lao PDR court was delivered after five hours on 28 June 2001. To put this into perspective, a similar case in an Australian court would have easily required approximately 20 hearing days to ensure a fair and comprehensive evaluation. The judgment was read from a pre-typed five-page document. This raised immediate concerns. Both the Australian lawyer and the Australian Ambassador voiced their doubts to the media, highlighting that, given the complexity of the case, it was highly improbable that the three presiding judges could have:
• deliberated on the evidence and legal issues,
• reached a unanimous guilty verdict for each charge,
• formulated the reasoning behind their findings,
• produced a written, typed, checked, corrected and finalised judgment all within just 25 minutes (see ABC The Australian Story: On Their Honour).
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Diplomatic Intervention and Presidential Pardon: The eventual release and presidential pardon of the Danes, following the intervention of the Australian government, including the Prime Minister and Foreign Minister, underscores the diplomatic importance and unusual nature of their case.
It's important to remember that these events took place in the context of Laos' judicial system, which has been criticized by highly credible human rights organisations and governments for deficiencies in areas like judicial independence, due process, and protections against arbitrary arrest and detention.
1. Embezzlement of state assets.
The Lao court fundamentally erred in its determination that Lao Securicor staff had moved State Owned assets (office furniture + two computers) without permission from the Laos Government.
The assets of Gem Mining Lao were unequivocally private property, not state-owned. At the time of the alleged offense, the Laos authorities had neither seized control of Gem Mining Lao nor asserted any legal claim to its assets.
Lao Securicor, acting in its capacity as a licensed security provider, had explicit contractual obligations to Gem Mining Lao that created a legal duty to protect their client's assets. Following formal written instructions from Gem Mining Lao and upon explicit legal counsel from Jardine Securicor's attorneys, Lao Securicor staff lawfully transferred the office furniture and two computers to secure storage facilities, maintaining complete documentation of all items.
All items were subsequently surrendered to Laos authorities upon the unlawful seizure of Gem Mining Lao six months later, with inventory records demonstrating that every item was accounted for and returned in its original condition.
Most tellingly, the Lao PDR authorities did not arrest the Danes at the time of transfer, document any alleged impropriety, or raise any concerns about the securing of these assets during the six-month period they remained in storage. This failure to contemporaneously act against an allegedly ongoing criminal act fundamentally undermines the prosecution's position and suggests the charges were retroactively fabricated. Neither did the Gem Mining Directors raise any complaint of theft other than by the Lao Government.
2. Destruction of Evidence
The claim that the Laos court correctly determined that data was destroyed when Lao Securicor staff moved computers is factually and legally unsound for several reasons:
First, the conviction of the Danes was later expunged, which legally nullifies the court's initial finding and renders it inadmissible as evidence in subsequent proceedings. This expungement creates a presumption that the original conviction was improper or based on insufficient evidence.
Second, substantial evidence demonstrates data preservation rather than destruction. Multiple backup copies were maintained at both Lao Securicor Headquarters and at an independent third-party (French computer tech company), establishing a clear chain of custody and preservation protocol that directly contradicts allegations of evidence tampering.
Third, the computers containing the original data were returned intact to Laos authorities during the Gem Mining Lao seizure, further demonstrating no attempt to conceal or destroy information. The subsequent use of this very data by Laos authorities to pursue convictions against GML Directors constitutes judicial estoppel - they cannot simultaneously claim the evidence was destroyed while using that same evidence in legal proceedings.
Fourth, the Danes lacked both motive and opportunity to engage in evidence destruction as they were not employees of Gem Mining Lao nor involved in its operations, establishing a clear separation that precludes them from having the necessary intent required for spoliation of evidence.
Finally, the sworn deposition of Mr. Harold Christensen, who had direct oversight of GML's financial management during the relevant period, contradicts these allegations and would be admissible as expert testimony regarding the preservation of financial records in accordance with standard corporate governance practices.
3. Violation of Lao Taxation Regulations
The claim regarding "Violation of Lao tax regulations" is legally flawed and unsupported by applicable international tax principles for the following reasons:
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The Lao court exceeded its jurisdictional authority by attempting to assert tax claims over a foreign entity operating exclusively in Thailand, contrary to established principles of international tax law and sovereignty.
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Ms. Danes fully complied with all tax obligations in Laos by properly paying income tax on earnings from employment with Lao Securicor Company Limited, as evidenced by complete financial records and in accordance with Lao PDR Law.
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The Thai company constituted a separate legal entity operating exclusively under Thai jurisdiction and Thai tax authority, making any Lao tax claims improper extraterritorial taxation in violation of international legal norms.
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The comprehensive independent audit by KPMG chartered accountants definitively established tax compliance and directly refuted all allegations of tax impropriety.
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The April 28, 1994 decree from the Governor of the Bank of the Lao PDR explicitly permitted unrestricted cross-border currency movement without government approval, rendering any currency movement allegations legally baseless.
This matter represents an improper attempt to extend taxation beyond territorial limits, contradicting both Lao PDR's own banking regulations and fundamental principles of international tax jurisdiction.
The Laos Government's rejection of the Danes' Supreme Court Appeal constitutes an egregious procedural violation and a flagrant contravention of established legal principles. A meticulous examination of the chronology reveals an unequivocal pattern of judicial obstruction:
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On 9 July 2001: Notice of Intention to Appeal was duly filed in strict compliance with all relevant statutory requirements and procedural mandates.
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On 25 July 2001: A comprehensive and legally substantiated Statement of Reasons was formally submitted, articulating multiple compelling grounds for appeal predicated on substantive questions of law.
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On 7 September 2001: The Appeal was summarily dismissed without requisite judicial consideration, evidentiary hearing, or reasoned judgment—constituting a profound derogation of fundamental due process guarantees and violating core principles of judicial independence.
Of concern is that diplomatic communication between the Australian Government and Laotian officials in Santiago, Chile, despite being well-intended, led to the denial of appeal rights. This represents not merely a procedural irregularity but a substantive violation of international legal norms, binding treaty obligations, and explicit constitutional guarantees in Laotian law regarding judicial fairness and procedural transparency. Nevertheless, the Australian government's negotiation of a "four-point deal" stemmed from their understanding of Laos's political realities as a communist state with limited judicial independence. This intervention aimed to secure the Danes' release.
Australian Foreign Minister Alexander Downer continued to engage the Lao PDR Foreign Minister to broker a diplomatic solution for the Danes’ release.
“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 briefing 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
The Australian Government engaged two diplomatic, Special Envoys (John McCarthy and Mr Ian Kemish) to lead the diplomatic engagement in Laos.
The President of the Lao P.D.R. granted a pardon to the Danes on 6 November 2001. The ceremony was attended by the Australian Ambassador, Mr. Ted Tzovaras (Australian lawyer), and senior officials of the Laos Government.
Despite Dr Kay Danes' distinguished background—holding a diplomatic passport, passing the most stringent government security vetting protocols, and dedicating her life to humanitarian causes—her journey continues to face unexpected obstacles. As an internationally recognised human rights advocate honoured with the Medal of the Order of Australia and numerous prestigious awards, one might expect her path to be smoothed by these accomplishments.
Yet remarkably, neither her previous, extensive security clearances (Top Secret Positive Vetting) nor the rare distinction of having been granted a presidential pardon shields her from the challenges she encounters when travelling internationally. Her story serves as a powerful reminder that even for those who have reached the pinnacle of service and recognition, the complexities of global mobility remain a persistent reality.
FBI Criminal Justice Check (2025)
In July 2025, Dr. Danes underwent an FBI background check, and the results showed that there is no record of any prior arrests in the FBI database for Dr. Danes. In other words, according to FBI records, Dr. Danes has no criminal history that resulted in an arrest at the federal level (Download).
AFP Criminal Justice Check (2025)
In April 2024, Dr. Danes underwent an AFP background check, and the results showed that there are no disclosable court records. (Download).