Kerry and Kay Danes

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Kerry and Kay Danes are an Australian husband and wife who were arrested on 23 December 2000 by authorities in the Lao People's Democratic Republic ("the Lao PDR"). They remained in jail in Vientiane for six months without any formal charges being laid against them. Formal charges were laid against the couple on 13 June 2001. Two weeks later, on 28 June 2001, the Danes were convicted by the Vientiane Municipal People's Court of Embezzlement,Destruction of evidence and Violation of Lao tax regulations. Kerry and Kay Danes were sentenced to 7 years imprisonment, and ordered to pay compensation and a fine totalling approximately US$530,750. 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. Throughout their ordeal Kerry and Kay Danes maintained that they were innocent of any criminality and of all findings made against them. They have continued to maintain this position since their release under a Presidential Pardon granted 6 November 2001, and return to Australia on 9 November 2001.

Contents 1 The Trial 2 The Evidence 3 The Australian Government's position 4 The Charges defined 4.1 Embezzlement of state assets. [Sentenced 4 years] 4.2 Destruction of evidence 4.3 Violation of Lao tax regulations 4.4 False media statements [Gem Smuggling] 4.5 Statements by Australian Government Diplomats 5 The Presidential Pardon 6 Company profiles 6.1 Jardine Securicor 6.2 Joint Venture Partnership [Laos] 7 Biographies 7.1 Kerry Danes 7.2 Kay Danes 8 See also 9 References

[edit] The Trial

Despite repeated requests, no particulars of the 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.

[edit] The Evidence

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 bound volume containing these depositions and supporting documents, 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.

There were a number of un-judicious aspects of the hearing, including:

• 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;
• Despite requests by the Lao lawyer and the Danes themselves, 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. For example, 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 typewritten document.

In a case of this complexity, it was impossible for the three Judges within 25 minutes to have:

• deliberated over the evidence and the legal issues;
• agreed upon a joint verdict of guilty for each of the charges;
• formulated and agreed upon the reasoning behind their findings; and
• 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.

From what the Danes Lawyers have stated, it is manifestly clear that these convictions would never have been entered against the Danes in any properly constituted or functioning Court of Law. The Ambassador for Australia, Mr 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 of embezzlement, destruction of evidence and violation of Lao tax laws made by the Vientiane Municipal People's Court 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.

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. 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 and authorities 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.

[edit] The Australian Government's position

Throughout their incarceration, the Australian Government and the Danes, with legal assistance, worked very closely together, sharing all information relating to the Danes' case, consulting and agreeing in advance (whenever possible) in respect of all actions and other measures taken either by the Australian Government or by the Danes Lawyers with the aim of achieving the release of the Danes. The Australian Government's continuous support, intense involvement and close collaboration with the Danes and their lawyers provides testimony to the belief held by the Australian Government that the Danes had been unjustly arrested, detained and convicted, that the Danes are innocent of all allegations and findings of criminality made against them by the Lao authorities and Courts and that, now they have been pardoned, these convictions should not stand in the way of their resuming a normal life in Australia, as if these events had never occurred.

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 are innocent of the criminal offences of which the Lao Courts have convicted them. For the reasons set out above, the Danes lawyers submit that the convictions of embezzlement, destruction of evidence and violation of Lao tax regulations be disregarded and deemed never to have been made against them in all respects and for all purposes.

[edit] The Charges defined

Two years following the Danes return to Australia, the Australian government provided the couple and their lawyers access to over 1000+ documents under Freedom of Information. These documents included a copy of the Lao court transcript which defined the charges. No particulars of the charges or convictions were provided, similarly, no copies of any statement or document which were apparently relied upon by the Prosecution at the Court hearing to convict the Danes were ever provided to the Danes, their Lawyers or the Australian Government.

[edit] Embezzlement of state assets. [Sentenced 4 years]

The Lao court convicted the Danes on the sole basis that it 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.

[edit] Destruction of evidence

The Laos Government ordered that in moving the two computers for storage that the data had been destroyed.

• The data remained in tact 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.

[edit] Violation of Lao tax regulations

The Laos Government 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.

[edit] 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.

[edit] Statements by Australian Government Diplomats

“	Kerry Danes is obsessed by his honour, his reputation, the honour of Australia, the honour of his regiment. He's a member of the SAS, and that carries with it a code of pride and honour in which the most important aspect is that he be ready for anything. That means that he keeps himself at peak fitness in the most adverse circumstances, that he endures pain, that he is not allowed to show undue emotion, that he is constantly on the outlook for adjustments that might be needed to enable him to survive, and that he doesn't admit defeat on anything. His attitude, during this ordeal was that he could take it, and if, if he couldn't, well, he bloody well would take it. But what was not fair, what was really gnawing away at him, was watching his wife undergo these ordeals too. Kay, on her hand, wouldn't hear of being separated from Kerry for fear of what might then be done to him. 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.	”
—Australian Ambassador H.E. Jonathan Thwaites

“	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

[edit] The 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.

[edit] Company profiles

[edit] Jardine Securicor

Jardine Securicor was one of the Asia regions' longest-established security companies that commenced operations in 1963. Since then the business has expanded into eight other territories and is one of the most familiar and respected names in security. Securicor Hong Kong is part of the Securicor Asia group, which is wholly owned by Securicor plc, a leading cash management, security and justice Services Company based in the United Kingdom. Operating globally in some 50 countries and with over 60 years' experience, employing more over 100,000 people. It is part of the corporate giant "Jardine Matheson Group" with over 70,000 employees in twenty territories, mainly in the Asia Pacific region. The underwriters of the group are Lloyds of London. Jardine Securicor operates some of the largest coin and banknote processing centers in the Asia Pacific Region, and operates one of the largest secure transport fleets in Asia. Services over 2,000 Automated Teller Machines (ATMs) in five countries.

[edit] Joint Venture Partnership [Laos]

In 1998, Jardine Securicor entered a joint venture partnership with the Lao Ministry of Interior. The Ministry of Interior is the main instrument of state control and guardianship over the criminal justice system. Ministry of Interior police monitor both Laotians and foreign nationals who live in Laos, and there is a system of informants in workplace committees and in residential areas. Together Jardine Securicor and the Lao Ministry of Interior formed a subsidiary company called 'Lao Securicor Company Limited' to which Jardine Securicor held 70% and the Lao Ministry of Interior held 30% shares. Lao Securicor experienced a number of problems within only weeks of commencing operations in October 1998. It's first Managing Director left Laos suddenly after only three weeks in the job. His replacement submitted his resignation in the following three months claiming, in a letter dated 28 October 1998 that he is terminating the lease on the house rented "due to difficulties with the Lao Government".

On 4 January 1999, Kerry Danes was recruited by Hong Kong-based Jardine Securicor and appointed Managing Director of Lao Securicor Company Limited.

[edit] Biographies

[edit] Kerry Danes

Kerry Arthur Danes was born on the 21st of October 1958 and raised in Longreach, Queensland, Australia. He enlisted in the Australian Army in August 1976 as an infantry soldier. Since 1981 he has served as an Australian Special Forces solider, predominately as a member of the elite Special Air Service Regiment - SASR. Throughout his thirty year career he represented the Australian Army in a broad range of activities including, several major boxing events, the King's Cup Boxing Championship in Thailand, the Australian Boxing Championship, Australian Golden Gloves, the Olympic boxing trials. Kerry Danes is still a serving member of the Australian Defence Force. Towards the end of 1998, Kerry Danes was considering a transitional move from military service to the civilian private security sector. He applied for, and was granted, approval by the ADF to work overseas whilst on Long Service Leave for Hong Kong-based Jardine Securicor.

[edit] Kay Danes

Kay Francis Danes [nee Stewart] was born on the 20th of October 1967 and raised in Brisbane, Queensland, Australia. She began her career in Hairdressing at the age of 17 which she continued up until the early 1990's when she made a career change to business administration which led to further studies in security administration. She became co-Manager in a family run security business.

Throughout the year of 1999, Kay Danes operated as a security consultant and sub-contractor for Kroll Associates (Asia) Limited^[1]. She established an International bodyguard company in Thailand and provided Close Protection Services for Corporations and Expatriates.

In about mid-March 2000, Kay Danes provided Close Protection Services for Ferrier Hodgson^[2] in Thailand and its subsidiary company, Effective Planners Limited (EPL). EPL were preparing to take up an assignment as Planner representing 148 creditors of the Thai Petrochemical Industry Public Company Limited (TPI)^[3][4], owing approximately US$3.4 billion. Because of the controversy surrounding TPI, the hostility demonstrated toward Ferrier Hodgson by TPI's Chief Executive Officer Prachai Leophairatana, and the murder of Michael Wansley^[5] who had undertaken a similar debt-restructuring role for a sugar company in Bangkok, the directors of Ferrier Hodgson were concerned about safety. It was in these circumstances that led to the engagement of Kay Danes' consultancy services. Kay Danes engaged Thai SWAT police in their off duty hours as subcontractors to provide close protection services.

[edit] See also

• List of Australians in international prisons

[edit] References

1. ^ http://www.kroll.com
2. ^ http://www.fh.com.au
3. ^ http://www.asiaweek.com/asiaweek/magazine/enterprise/0,8782,106820,00.html
4. ^ http://www.tpipolene.com/corporate-boardoftpipl_eng.html
5. ^ http://www.atimes.com/se-asia/AF11Ae03.html

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