• The partner of anAustralian diplomat has been told he may no longer be allowed a diversion on a common assault charge
• Police had to request the Australian Government waive diplomatic immunity for the man before they could charge him
• He has been given interim name suppression while the diversion matter is assessed

Police have signalled they may withdraw their offer of diversion for the partner of an Australian diplomat accused of an assault during a night out in Wellington.

The man appeared in the Wellington District Court this morning on one charge of common assault, having expected to make a start on his diversion this morning.

But defence lawyer Louise Sziranyi said her client had turned up this morning expecting a diversion meeting “but apparently other branches of the police have been involved in it and there’s now a question mark over it,” she told Judge Brett Crowley.

She said they “were told that there’d been other information from other parts of the police”, but it was apparently unclear why exactly the diversion offer was potentially no longer on the table.

The police prosecutor said police had originally offered diversion to the man, but “a decision has been made to review that assessment.

“I believe that the matter is no longer considered suitable. I can’t take that any further, this is the information that I’ve been told,” she said.

Judge Crowley said something had “upset the apple cart and we’re not too sure what it is”.

He remanded the man at large to reappear in January, so Sziranyi could determine what was happening with the diversion.

The diversion scheme, offered by police, provides eligible adult defendants with an alternative to a full prosecution and potential conviction.

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 the Bledisloe Cup 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.

He has interim name suppression until his next appearance. Police have not opposed this.

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.