Despite diversion initially being offered, defence lawyer Louise Sziranyi confirmed today the offer had been withdrawn. She earlier indicated the offer was being withdrawn after “other branches of police” became involved.
The diversion scheme, offered by police, provides eligible adult defendants with an alternative to a full prosecution and potential conviction.
At his last appearance in December, Sziranyi asked for interim name suppression to continue, telling the judge it normally ran “in tandem” with diversions.
The Herald opposed suppression in subsequent written submissions, arguing the threshold for name suppression was whether the defendant would suffer extreme hardship, and whether or not he received a diversion was irrelevant to the suppression process.
The argument over suppression has been put off until his next appearance so his legal team can file further submissions if desired.
Sziranyi asked Judge Nicola Wills not to enter a conviction today, as she will be applying for a discharge without conviction for her client. This will be argued in early April.
The man was charged at the end of October, a month after the alleged assault between three people on Dixon St. The incident happened in the early hours of the morning, just hours after the All Blacks played the Wallabies in a Bledisloe Cup test in the capital city.
He was taken into custody but was later released after claiming he was covered by diplomatic immunity.
In order to charge the man, police required the Australian Government to waive immunity. This was confirmed by New Zealand’s Ministry of Foreign Affairs and Trade on October 9.
What is diplomatic immunity and how can it be waived?
“Immunity” can be granted to diplomats and their families under international law – the Vienna Convention on Diplomatic Relations 1961.
It’s a long-standing principle designed to ensure diplomats and foreign representatives can perform their duties with freedom, independence and security, as the Ministry of Foreign Affairs and Trade (MFAT) explains.
Former British High Commissioner Vicki Treadell told the Herald previously this was particularly useful in countries with poor human rights.
Diplomatic immunity means a person cannot be arrested or detained, prosecuted or subpoenaed as a witness. They can, however, be issued a traffic infringement notice.
MFAT documents set out how the New Zealand Government expects the sending state – the country the diplomat is representing – to waive the immunity of a foreign representative or accredited family member where a serious crime is alleged to allow for legal proceedings against the individual.
The definition of a “serious crime” here is one with a penalty of imprisonment of 12 months or more.
“Serious crimes therefore include offences against persons such as murder, manslaughter, sexual offences, and common assault; certain driving offences such as dangerous driving causing injury; and certain property offences including theft of more than $500,” MFAT documentation says.
An individual who is immune from local jurisdiction cannot waive their own immunity.
Immunity belongs to the sending state, not to the individual, and must be waived by the sending state, MFAT says.
In 2020, then Prime Minister Dame Jacinda Ardern said she had spoken with South Korea’s President over disappointment that diplomatic immunity was not waived during the police investigations facing a South Korean diplomat.
In late August, the South Korean diplomat was given a suspended jail sentence after he was convicted of sexually assaulting a New Zealand staffer at a Wellington embassy.
In 2018, a landlord was left fuming at MFAT which protected a foreign diplomat who owed $20,000 in rent and damage to the property.
The Tenancy Tribunal had ruled in favour of the Wellington landlord – but MFAT intervened, saying the proceeding should never have taken place because the person had diplomatic immunity.
Melissa Nightingale is a Wellington-based reporter who covers crime, justice, and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 10 years.
