Mabey denied applications from multiple media organisations, including the NZ Herald, to take photos of the man.
Mabey, who was initially unaware of why there was media interest in the case, argued no photos could be used if the case was diverted and while he saw no reason why photos could not be taken if it was progressed and suppression was not continued, Mabey said he didn’t see the need to “put the cart before the horse”.
“Today we’ll keep the cameras in our pockets.”
On October 31, police charged the man with assault after an incident between three people on Dixon St in Wellington about 3.30am on September 29 - just hours after the All Blacks played the Wallabies in the Bledisloe Cup in the capital city.
The man 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.
Adam Pearse is a political reporter in the NZ Herald Press Gallery team, based at Parliament. He has worked for NZME since 2018, covering sport and health for the Northern Advocate in Whangārei before moving to the NZ Herald in Auckland, covering Covid-19 and crime.
