L. v The Crown

• Jurisdiction: New Zealand
• Judgment Date: 12 September 1977
• Date: 12 September 1977
• Court: Supreme Court

New Zealand, Supreme Court, Auckland.

(McMullin J.)

L.

and

The Crown

DIPLOMATIC AND CONSULAR INTERCOURSE AND PRIVILEGES

Diplomatic and consular intercourse and privileges Consuls Position and functions of consuls Indecent assault by consular officer in consulate-general Whether an act performed in exercise of consular functions Functional immunity Vienna Convention on Consular Relations, 1963 The law of New Zealand

Diplomatic and consular intercourse and privileges Consuls Privileges and immunities of consuls Indictment of consular officer on criminal charge of indecent assault Whether immune from jurisdiction Functional immunity Whether act performed in exercise of consular functions Vienna Convention on Consular Relations, 1963 The law of New Zealand

Summary: The facts:L. was the Vice-Consul of a Pacific Island country at the Consulate-General in Auckland. It was alleged that when a national of that country had called at the offices of the Consulate-General, L. indecently-assaulted her. He was therefore charged with an offence of indecent assault. He applied to the Court for an order seeking his discharge on the ground that he was not amenable to the local jurisdiction since he enjoyed consular immunity from jurisdiction. He contended that what he was alleged to have done was an act performed by him in the exercise of his consular functions within the meaning of Article 43(1) of the Vienna Convention on Consular Relations.

Held:The application was dismissed and the plaintiff was ordered to stand trial. The immunity of a consular officer from prosecution was not a personal immunity but was rather an immunity for the benefit of the sending State. It was an immunity which was limited to acts which properly occurred in the course of the exercise of consular duties. An indecent assault was unconnected with the duties to be performed by a consular officer. L. was therefore subject to the jurisdiction of the New Zealand courts.

The following is the text of the judgment of the Court:

L. is a Vice-Consul at the Consulate-General at Auckland of a Pacific Island country. It is alleged that on 18 April 1977, when the complainant, a national of that country, called at the offices of the Consulate-General in Auckland to renew her passport, L. indecently assaulted her. An indictment charging him with that offence, contrary to section 135(a) of the Crimes Act 1961, has been presented by the Crown.

Application is now made on behalf of L. for an order that he be not...