R v X (CA299/04)

[2004] NZCA 347

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA299/04

THE QUEEN

v

X(CA299/04)

Hearing:         4 October 2004

Coram:McGrath J Hammond J William Young J

Appearances: H F Croft for Appellant

S P France for Crown Judgment:  18 October 2004

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

Introduction

[1]                 The accused (X) is a diplomat who is accused of indecently assaulting a female (Y). X’s Government waived immunity from prosecution, which meant that notwithstanding his status as a diplomat, X could be charged with a criminal offence and sent to trial in the District Court.

R V X(CA299/04) CA CA299/04 [18 October 2004]

[2]                 A question arose as to the admissibility of certain evidence which the Crown seeks to advance at that trial.

[3]                 Judge Tuohy found that the evidence is admissible at the trial. X now  appeals against that ruling, to this Court.

Background

[4]                 X lives in a Wellington home. He engaged Y, a young European woman, to live and work in his home as a nanny.

[5]                 The Crown case, based on Y’s statement, is that X entered Y’s bedroom one night. Y pretended to be asleep. X then stood beside her bed and masturbated  himself to ejaculation. Some of X’s semen fell on Y’s hair. X then left the room.

[6]                 After X had left her room, Y lay there for some minutes and then turned on the bedside light. She noted the semen in her hair. She then took some scissors and cut some of her hair off. She then placed her hair, with the semen on it, into a plastic bag. She dressed, and some time between midnight and 1.00 am she jumped out the bedroom window. She went to a nearby telephone box and called a taxi. She made contact with friends elsewhere in Wellington and stayed the night with one of them. The next day Y went back to X’s residence. She climbed into the house through a window. She did this to pick up her bags, property and the plastic bag with the hair and semen in it. At that stage she did not wish to go to the police as  she did  not think they would believe her. However, after she had spoken further with  friends, she went to a police station and made a statement concerning what had happened to her. She gave the hair, the plastic bag and a small personal pillow to the police.

The charges

[7]                 X was charged with doing an indecent act with intent  to  offend  (Crimes  Act 1961 s 126) and indecent assault (Crimes Act 1961 s 135(1)(a)).

[8]                 A number of applications were made to the District Court under s 347 and     s 344A of the Crimes Act 1961.  It suffices to say that, as matters now stand, only  the indecent assault charge remains on foot.

[9]                 Diplomatic immunity with respect to that charge has been waived by the particular Government in terms of Article 31 of the Vienna Convention (as to the Convention, see the appendix to the Diplomatic Privileges and Immunities Act 1968 (NZ)).

The point at issue

[10]             In the District Court, it was submitted on X’s behalf that the hair sample with the semen on it was inadmissible in evidence.

[11]Miss Croft relied on Article 29 of the Vienna Convention, which states:

The person of a diplomatic agent shall be inviolable. He shall not be liable  to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

[12]             Judge Tuohy found that “the person of the diplomatic agent” did not include bodily fluids which in effect have been discarded by that person, and that therefore there had not been a violation of the person of the diplomatic agent. He held the evidence to be admissible.

[13]The appeal is against that holding.

The arguments for the appellant

[14]             Miss Croft told us that she had found no case directly on point, or even near the point, in any jurisdiction. Her submissions were as follows.

[15]             Had the police taken a semen sample, or by analogy a breath or  blood sample, from the appellant at the time of the alleged offending without his consent

and prior to any request for waiver of immunity, that would have been a violation of his person, on any definition of the word “violation”.

[16]             Although it was true in this case that the semen came to the police via an intermediary, there was no less a violation, and to hold otherwise would be to subvert the aim of Article 29. There should be no distinction between a direct and an indirect taking. Whilst it could be said that the fluid in this case had been  “discarded” it nevertheless remained on the Crown case the bodily fluid of a diplomat and what had allegedly happened did not amount to a relinquishing of the protection afforded the diplomat by Article 29.

[17]             The second sentence in Article 29 (“he should not be liable to any form of arrest or detention”) adds to the meaning of the first sentence, and does not totally define it. She suggested that the first sentence needs to be given “a full meaning in particular taking into account the various changes in evidence gathering since the early 1960s when the Vienna Convention was first drafted”.

[18]             One of the main aims of the Vienna Convention is to ensure the protection of the integrity and dignity of the diplomat. The receiving and testing of a fluid alleged to have come from a diplomat with diplomatic status is “inappropriate behaviour by the  New Zealand  Government  and  should  not  be   legally  sanctioned”.   The New Zealand Government would not want such acts to befall its diplomats abroad and the inability to obtain evidentiary proof of a crime may be an injustice to the alleged victim, but it is the price agreed to be paid to ensure the smooth running of diplomatic relations between countries.

[19]             If there is a breach of the article the waiver of the immunity does not retrospectively legalise it. Miss Croft suggested that Articles 32 and 33 of  the Vienna Convention relate to the prosecution of the case involving the laying of charges, the arrest of the diplomat, and the court process cannot or should not be allowed to authorise past breaches of the Vienna Convention. To do so would send the message to enforcement officers of the receiving State that it would be permissible to breach a diplomat’s rights under the convention in anticipation of a

request for waiver of immunity being granted. This would defeat the purpose of the protection given by the various articles.

The Crown submissions

[20]             Mr France said that the purpose of the evidence is solely to corroborate the complainant’s story, to the extent that it shows semen was in the strands of hair she gave to police.

[21]             The Crown accepted that extraction of bodily fluids can conceptually come within the concept of inviolability of the person.  This creates an inability to subject a diplomatic agent to a breath test or other medical examination (see Denza Diplomatic Law (Oxford 2 ed 1998) at 218).

[22]             That said, Mr France submitted that “the circumstances presently before us do not engage the principle underlying Article 29. [There is] no breach in that the receiving State has not detained or arrested the appellant to obtain the sample, nor indeed obtained the sample through any of its agents.” He suggested that the circumstances described by the complainant must be seen as being akin to a waiver or abandonment of the semen. Whatever the correct label might be, if the semen  does belong to the appellant, “he must be taken to have waived the inviolability of his person in relation to it”.

Prior authority

[23]Counsel drew our attention to three decisions.

[24]             In Public Prosecutor v Orhan Olmez (1987) 87 Malaysia (High Court and Supreme Court) Reports 212 both the High Court and the Supreme Court had occasion to consider Article 29 of the Vienna Convention (in the context of extradition proceedings).

[25]The Supreme Court said:

It is said that diplomatic envoys are sacrosanct and the principle of their inviolability is generally recognized. There is, however, one exception. If a diplomatic envoy commits an act of violence which disturbs the internal order of the receiving State in such a manner as makes it necessary to put him under restraint for the purpose of preventing recurrence of similar acts, or if the diplomatic envoy conspires against the receiving State and the conspiracy can be made harmless only by putting him under restraint, he may be arrested for the time being, although he must in due time be safely sent home [referring to Oppenheim Vol. 1 Sixth Ed. s 387, 388] (at 221).

[26]And further:

Franciszek Przetacznik’s Protection of Officials of Foreign States According to International Law at page 9 discusses the definition of personal inviolability of officials of foreign States:

It should be observed that the definition of the personal inviolability of officials of foreign States contained in the Vienna Conventions and the Convention on Special Missions calls for clarification especially with respect to its details. The formulation that such an official is not liable to “any form of arrest or detention” might be construed as limiting the interdiction of the application of legal constraint only to “arrest and detention,” while there exist still other measures of constraint which should not be applied with respect to foreign officials. Therefore, this principle should be formulated in a general way, so as to cover all measures of constraint. Moreover, the formulation that the receiving State “shall take” all appropriate steps seems too weak.

The sum total of the meaning of the personal inviolability of officials of foreign States may be stated as follows: on the one hand, it means a guarantee of non-application of measures of legal constraint with respect to their persons, and on the other hand, it also imposes on the receiving State the special duty not only to refrain by its organs from any acts infringing upon their personal inviolability, but also to take all appropriate steps to protect them and prevent any attack on their persons, freedom and dignity  (at 221).

[27]             The second authority to which we were  referred was Third Ave.  Associates  v Permanent Mission of Zaire 988 F 2d 295 (1993) (certiorari denied on appeal to the United States Supreme Court (114 S Ct 74)). This case was concerned with an attempt to recover unpaid rent and possession with respect to a diplomatic mission. The United States District Court granted the landlords summary judgment, and directed the physical removal of the mission from its leased premises, by United States Marshals. The Second Circuit Court of Appeals reversed that decision, and in so doing had occasion to pass on the meaning of the word “inviolable” in Article 22 of the Vienna Convention (which makes the premises of a mission “inviolable”).

[28]             The Court of Appeals said that the inviolability of a mission is to be recognised, without exception (referring to Higgins, Abuse of Diplomatic Privileges at 642). It observed that modern international law has supported diplomatic immunity under a theory of “functional necessity”. The Court then said:

The risk in creating an exception to mission inviolability in this country is of course that American missions abroad would be exposed to incursions that are legal under a foreign state’s law (at 201).

[29]             The Court of Appeals further recognised that “there are negative policy implications from the ruling it proposed”. It noted that in recent years, there has  been concern with an array of abuses of diplomatic privilege, with diplomats and their families committing a wide range of petty and more serious offences in some jurisdictions. It noted that reforming the Vienna Convention might well be a valid objective. However, the Court suggested that “Federal courts are an inappropriate forum to accomplish the amendment of a multilateral treaty to which the United States is a party”.

[30]             The third authority to which we were referred was Shearson Lehman Brothers Inc v Maclaine, Watson & Co Ltd (No.2) [1988] 1 WLR 16 (HL). The facts of the case are far from clear, and indeed the House of Lords took the exceptional course of deciding some abstract points of law on some assumptions as to some of the facts.

[31]             For present purposes, the essential facts are that the International Tin Council (ITC) (an international organisation) had objected to the use of certain documents emanating from it. The allegation was that certain documents of the ITC had inappropriately been released by a member of the ITC staff, or one of the member States, or by some other means. The ITC had diplomatic immunities under the International Tin Council (Immunities and Privileges) Order 1972 (UK). Article 24 of the Convention was sought to be relied upon. It provided “the archives and documents of the mission shall be inviolable at any time and wherever they may be”.

[32]             The House of Lords held that once a document had been communicated by the ITC to a member, or a member’s representative, the protection afforded to it by

the 1972 Order ceased to apply. Further, the protection conferred by Article 24 and the 1972 Order was not confined to executive or judicial action by the host state. Lord Bridge said:

The underlying purpose of the inviolability conferred is to protect the privacy of diplomatic communications. If that privacy is violated by a citizen, it would be wholly inimical to the underlying purpose that the judicial authorities of the host state should countenance the violation by permitting the violator, or any one who receives the document from the violator, to make use of the document in judicial proceedings (at 27).

[33]             This decision has been strongly criticised by a distinguished international lawyer, Dr F A Mann, in (1988) 104 LQR 178. In Dr Mann’s view:

The important point is to appreciate what the ratio decidendi [of Shearson] did not turn on. In the first place it did not in any way turn on the meaning  of  “archives”  or  of  “inviolability,”  so  that  certain   observations   by Lord Bridge on the latter point are probably obiter. Moreover the provisions of the Vienna Convention have nothing to do with confidentiality (p.27). Lord Bridge thought that their purpose was to protect the “privacy” of documents (p.27). This is a difficult conception. Its effect in the present context cannot readily be assessed. Next, without advancing any reason, Lord Bridge also rejected the submission that inviolability meant freedom from “executive or judicial action by the host State” (p.27). It is believed, however, that that submission should have been accepted.  Neither  in  Article 24 nor elsewhere in the Vienna Convention can inviolability, it is suggested, have any other meaning than freedom from executive or from judicial violation, interference or constraint. Although there is no decision anywhere which construes the term for the purposes of the Convention, there is rich material in academic writings, which supports this literal interpretation based on the Oxford English Dictionary and other sources   (at 179-180 (emphasis added)).

Discussion

[34]             In our view, the start and end point of the issue before us lies in the proper construction of the word “inviolable”, in Article 29 of the Convention (and the other Articles in which it appears).

[35]             Historically, diplomatic privileges comprehended droit de chapelle (the entitlement of the diplomatic corps to practice their own religion); droit de quartier (immunity from being subject to the local police); droit d’hotel (a particular kind of extra-territoriality which exempted missions from taxation); and immunity from the jurisdiction of local courts, unless this jurisdiction was waived.

[36]             The modern expression of these concerns is to be found in the Vienna Convention on Diplomatic Relations (1961).

[37]             Both the literal meaning of the term “inviolable” - and for that matter its  spirit - cannot in our view appropriately be seen as bearing a meaning other than suggested by Dr Mann. And that meaning is consistent with the important objectives of the Convention.

[38]             If this construction is correct, there is here no breach of Article 29. The receiving State has done nothing to detain or arrest or somehow constrain Mr X, to obtain the sample. Nor was the sample in any way procured through any of its agents. Had Y spoken to the police and at their suggestion returned to the mission to recover the sample bag, it might well have been that she was acting as an unofficial procurer on behalf of the prosecuting authorities. On her statement she returned to the residence to collect her own personal property including the plastic bag and its contents. Y was living in the house and had the leave and licence of X to come and go. Admittedly, she came and went through a window, but that does not seem to matter. Certainly counsel for the appellant was not able to say why it should matter. She still had a licence to enter the property and all Y did was to pick up her own belongings. On the face of it, nothing she did could be regarded as in violation of  any domestic legal rights vested in X. Nor is this a case in which Y had to scrape up a sample off a carpet, or anything of that kind which might have breached the private residence immunity under Article 30. She simply recovered her own hair, with the sample on it, and later gave it to the police when she came in contact with them.

[39]             The concept of ownership of semen and genetic material can be very complex, depending on the context in which it is raised. If it were necessary to do  so, in the circumstances of this particular case, we would have held that the semen as such was “abandoned” or “discarded” by X. In those circumstances we do not see how any subsequent actions by the police or the Courts with regard to the hair and semen can be said to have been in breach of Article 29. X’s “person” has not been interfered with. No doubt his current situation as a defendant in an unpleasant criminal prosecution in a sense involves “an attack on his … freedom or dignity” but this has been the subject of an express waiver. That waiver must extend to all steps

which are necessarily incidental to the prosecution and thus to the leading of evidence which he, understandably, regards as embarrassing.

Conclusion

[40]             In  the  result,  the  appeal is dismissed.    The ruling of the Judge that the evidence is admissible at Mr X’s trial is upheld.

Solicitors:

Helen Croft, Wellington for Appellant Crown Law Office, Wellington