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The man appeared in the Wellington District Court where he was discharged without conviction.
The partner of an Australian diplomat has escaped conviction for a charge of assault on a night out in Wellington.
Police had to request the Australian Government waive diplomatic immunity for the man before they could charge him.
The man threw punches at a group of teenagers and spat in a woman’s face, the summary of facts said.
The partner of an Australian diplomat who tried to get immunity for an assault in Wellington has avoided a conviction for spitting in a woman’s face as police were driving past.
The man was able to escape a criminal record for the drunken incident and was granted permanent name suppression to protect his wife’s career.
The offending included him throwing punches at a group of teenagers – including the victim – while yelling “what are you gonna do” until one of them hit him in the nose, it can now be reported.
In the video, viewed by the Herald, a man can be heard yelling, “You f***ing stupid fa****t! I’ve got diplomatic immunity! You f***!” while three police officers restrain him against a wall.
According to the summary of facts, he was on Dixon St in the city centre about 3.30am on September 29 when he approached a group of three strangers and asked what they were up to.
“The defendant became aggressive and started to yell when the group told him to go away,” the summary said.
He continued acting aggressively, throwing punches at the group and yelling, “What are you gonna do?” In response, one of the members of the group hit him in the nose, at which point he leaned back and deliberately spat in the woman’s face.
The husband of an Australian diplomat has been discharged without conviction for an assault in Wellington, for which he tried to claim diplomatic immunity. Photo / Melissa Nightingale
Police happened to be driving past at the time and witnessed the incident, so stopped and arrested the man.
In explanation to police, he said he was drunk and didn’t like being told to keep walking. He said he was bleeding and frustrated and “I wasn’t sure if I was going to get badly hurt”.
The man was charged at the end of October, a month after the assault.
In court today, Judge Paul Mabey said the man’s actions while being arrested gave rise to “intense media interest”.
“I couldn’t put it any better than the young man who punched him and the young lady who was spat on, when asked ... ‘What do you think about what happened’,” Judge Mabey said.
“The young man said, ‘I’ve not suffered any side effects since this altercation, I think it was just a drunk guy out on a Saturday night who drank too much’.”
The woman also said she thought it was just a drunken moment in town and it had not affected her since.
Defence lawyer Louise Sziranyi said her client was a man who had been struggling to settle into Wellington and had approached the group in an attempt to “befriend” them.
“It’s very minor offending,” Sziranyi said.
Judge Mabey agreed the offending was “low-level” and emphasised the man was “not here today to be sentenced for abusing the police, for rashly claiming diplomatic immunity”.
He described the victims as a group of teenagers who “didn’t want anything to do with him”.
Sziranyi applied for a discharge without conviction and permanent name suppression for the man, arguing his mental health was poor and that his wife’s career would likely suffer if he was named and convicted. She suggested his wife might not be considered for other diplomatic posts in the future.
Judge Mabey said there was a lack of expert evidence to support the claim that the man’s mental health would cause extreme hardship.
The judge said none of the arguments Sziranyi advanced around the effects a conviction would have on her client were enough to discharge him without conviction, but the effects on his wife must also be considered.
The wife’s affidavit claimed she had been advised her husband might have to go back to Australia if convicted, and this could cause a break-up of their family. She also said she was told a note of a code of conduct breach would be placed on her file and this would be considered when she applied for other postings.
She said reputation was central to her role as a diplomat.
Judge Mabey said any assessment of a conviction to the man would inevitably be tied to his behaviour during the arrest.
“Look at the stupid things he said, look how drunk he was, look what he said to the police. That will be the focus. Anyone who suggests otherwise is ignoring the reality of the situation, and that impacts not on him, but on her,” the judge said.
“Looking at both of their interests together, the likely consequences, of which there are a substantial risk, are entirely disproportionate to the gravity of the offending.
“I consider there is a real and substantial risk that this conviction will have an impact on his wife’s position.”
The judge granted the discharge without conviction and permanent name suppression, saying he felt the man’s wife would suffer extreme hardship otherwise.
The Herald opposed name suppression.
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,” the 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.
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.
