Diplomat: NZ asked to drop all charges
By Rebecca Quilliam, Isaac Davison
9:35 PM Tuesday Jul 1, 2014
The Malaysian Government asked New Zealand to drop all charges against a diplomat accused of sexual assault, newly released documents show.
Government released correspondence this evening confirmed that New Zealand asked Malaysia to waive diplomatic immunity for Muhammed Rizalman Bin Ismail, a junior military official at the Malaysian High Commission in Wellington.
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| Muhammed Rizalman Bin Ismail |
Ismail left New Zealand on May 22 after being charged with sexually assaulting a young woman in Brooklyn, Wellington.
The Ministry of Foreign Affairs wrote to the High Commission: "The New Zealand police believes it is in the public interest to prosecute these offenses due to the serious nature of the offending."
MFAT asked Malaysian authorities to waive the personal immunity granted to diplomats under the Vienna Convention.
In response, the Malaysian High Commission said it would not waive immunity and had "decided that [Ismail] should be repatriated to Malaysia as soon as possible".
It also asked MFAT and New Zealand police to "kindly consider sealing all documentations pertaining to the above mentioned matter and [withdraw] all charges against Mr Muhammed Rizalman Bin Ismail".
The High Commission said it would ensure Ismail did not return to New Zealand in the future.
The documents conflict with comments made this afternoon by Malaysian Foreign Minister Anifah Aman, who said Malaysia was willing to drop immunity but decided to invoke it after an offer by New Zealand officials.
Officials 'acted in good faith'
Foreign Affairs Minister Murray McCully said tonight he had spoken with his Malaysian counterpart to clarify any misunderstanding around the diplomatic standoff and issued a press statement to say the Malaysian authorities acted in good faith.
Mr McCully said the miscommunication seemed to have occurred during "informal communications over what is a complex case, in a manner that would have been ambiguous to the Malaysian Government".
Any evidence gathered by the New Zealand police would be placed before the military Board of Inquiry, said Mr McCully.
"The Minister made it clear that he would not allow the actions of one individual to tarnish the reputations of all Malaysian diplomats," said Mr McCully.
"It is clear to me from my conversation with Minister Anifah that his Government's decision to decline New Zealand's request for immunity to be lifted was driven by his Chief of Defence's desire to put in place a robust judicial process to deal with this matter and his officials' belief that this would be an outcome acceptable to New Zealand."
'Stern action' to be taken
Malaysian Foreign Minister Anifah Aman told reporters in Malaysia this afternoon that a defense ministry panel will investigate the junior official and "stern action will be taken" if he is found guilty.
VideoHe said the accused will be sent back to New Zealand "if it is absolutely necessary."
Asked to elaborate, Anifah said he will be extradited if New Zealand requests it or if New Zealand thinks the Malaysian investigation is not being conducted properly.
Ismail returned to Malaysia on May 22.
Mr Anifah said it was never Malaysia's "intention to treat the matter lightly."
He said Ismail was sent for medical check-up after his return.
"His physical state is satisfactory. However, he is now under psychiatric evaluation to assess his mental and emotional condition."
The defence ministry had established a board of inquiry to investigate the case and had given an assurance that "it will not compromise or conceal any facts on the case being fully aware that Malaysia's good name is at stake," Mr Anifah was quoted as saying.
The Malaysian Government took the issue seriously.
"The Malaysian Government acknowledges that the incident is a serious matter and we do not have any intention to sweep the matter under the carpet," Mr Anifah said, according to AP.
Fight to name diplomat successful
An urgent hearing to overturn the suppression ruling was held in the High Court at Wellington today, where the name suppression was overturned.
Media organisations, including the New Zealand Herald, challenged the decision to grant name suppression.
Foreign Affairs Minister Murray McCully earlier said the Solicitor-General had advised the Government abide by the suppression ruling while it was in place.
"I can't see any good public policy reason why you'd want to protect someone from publicity given there won't be a trial."
Ismail, in his 30s, left the country after being charged by Wellington police with burglary and assault with intent to rape.
He had followed a 21-year-old woman to her Brooklyn home on May 9 when the alleged assault occurred.
MFAT called in Malaysia's Head of Mission last night to tell them that New Zealand expected Ismail to face the consequences of his actions.
Prime Minister John Key said the country had reassured MFAT that they were taking the issue very seriously.
"We made it quite clear that we were under no illusion about how seriously New Zealand took the issue, and we expect the person to be held to account," he said.
Lawyer for the media organisations, Robert Stewart, told the court the appeal related to a decision by Judge Bruce Davidson to grant name suppression.
His notes had not been released into reasons why he granted name suppression, which left media "flying blind" because they would not know which aspects of the decision to appeal, he said.
The Malaysian Government was issuing a statement at 4pm today (NZT), where at least the country, and possibly the man's name would be released.
Media here would then be in a situation where the rest of the world would have the details, but if they shared those details, they would be in the "extremely invidious position" of breaching court orders, Mr Stewart said.
Ismail was not represented at court, but Barbara Hunt acted as the court's amicus in the matter.
Police lawyer Grant Burston said the Crown's position was they did not oppose the appeal.
There did not seem to be an evidentiary reason for the judge to order name suppression as it would not identify the victim or prejudice any future trial because the man had invoked diplomatic immunity.
Justice Collins had the file in front of him, but there were some hand-written notes of Judge Davidson's he was unable to read.
Ms Hunt was the man's lawyer on the day of his first appearance and applied for the initial name suppression.
That was because he had not yet told his family, but he was represented by his employer.
Also because of the seriousness of the charge and health issues that needed to be explored, she said.
In later court dates the man had not been represented, she said.
"His interests do need to be considered."
- additional reporting NZ Herald
- APNZ
UPDATE:
UPDATE:
Communication breakdown blamed for misunderstanding between NZ and Malaysia
Malaysia High Commission in Wellington (via Website)
UPDATED 9:42pm: Informal communications are being blamed for contradictory positions between New Zealand and Malaysia over the Muhammad Ismail case.
Earlier today the Malaysian Foreign Minister said they'd had offered to waive diplomatic immunity after their diplomat was arrested on serious criminal charges in Wellington in May.
Our government then released papers saying Malaysia had refused to waive immunity and requested documents relating to the case be sealed.
Foreign Minister Murray McCully says he's been provided with further correspondence and it's now clear officials engaged in informal communications in a manner that would have been ambiguous to the Malaysian Government.
Diplomatic row blows up
The alleged sexual assault and burglary committed by a Malaysian diplomat is blowing up into a significant diplomatic row.
NewstalkZB Political Editor Barry Soper says Malaysia's Foreign Minister's been quoted as saying that New Zealand offered Muhammad Ismail diplomatic immunity, allowing him to flee the country, but our Government says otherwise.
Official papers have just been released showing Foreign Affairs asked Malaysia to waive the immunity so that Ismail could be prosecuted in this country for what they said were serious offences.
But a paper from the Malaysia High Commission refused to waive the immunity and said he should be repatriated to Kuala Lumpur as soon as possible.
The Malaysian High Commission also requested the charges be withdrawn and all documents pertaining to the case be sealed.
Malaysian Foreign Minister comments
Malaysia's Foreign Minister says the country offered to waive immunity for a diplomat accused of a sexual assault in Wellington.
But he says New Zealand offered to allow Muhammad Ismail to return home.
Political reporter Laura McQuillian told Rachel Smalley that the Foreign Minister in Malaysia says the country was willing to waive diplomatic immunity but decided to take up New Zealand's offer to invoke the immunity and bring him back home.
She says that's at odds with what we've heard from the Government here, and a lot of questions are going to be asked about exactly what went on.
Malaysian Foreign Minister Anifah Aman says stern action will be taken, if a defence panel deems that Ismail is guilty of the accusations.
Anifah Aman says the man will be extradited if the New Zealand government requests it, or raises concerns about the Malaysian investigation.
Timeline of events:
May 9: Muhammad Ismail is arrested at night following an alleged sexual assault on a 21-year-old woman in Wellington.
May 10: Ismail appears in court, charged with assault with intent to rape and burglary. He is granted interim name suppression.
May 15: Ismail re-appears in court, where his bail conditions are removed. Police advise the court:"issues of whether defendant has diplomatic immunity being looked into".
May 22: Ismail leaves New Zealand.
May 30: Case is heard again, and Ismail's interim suppression is continued.
June 29: Story hits headlines.
June 30: Foreign Affairs Minister Murray McCully asks MFAT boss John Allen to summon the head of the Malaysian High Commission for an update on her government's promise to investigate the incident.
July 1: Justice David Collins lifts name suppression, following a successful appeal by media during an urgent hearing in the High Court at Wellington.
Name suppression lifted
The foreign diplomat accused of sexually assaulting a Wellington woman before fleeing New Zealand can now be named.
He is Muhammad Ismail, who was working at the Malaysian High Commission in Brooklyn - the same suburb where he was arrested on May 9th.
Ismail was charged with burglary and assault with intent to rape a 21-year-old woman, but invoked his diplomatic immunity and was allowed to leave the country.
In the High Court at Wellington today, Justice David Collins granted a media appeal to lift his name suppression - in part, because of Malaysian media reports about the incident, and the Malaysian government's plans to make a public statement.
The lawyer representing media in court today says it's a victory for free speech.
Robert Stewart says it's a sensible decision with the judge recognising the grounds on which the original suppression order was made, no longer apply.
"And he's also recognised that it appears the country of origin of this person is going to make a statement about the matter when that occurs, if that identifies him, the New Zealand media would be in a very difficult position."
Mr Stewart, the lawyer representing media, told the court there was no basis for Ismail's suppression to continue, under legal guidelines.
The court heard that police did not oppose its continuation the last time the case was heard, before Judge Bruce Davidson in Wellington District Court on May 30, because the case was still in an early stage, and Ismail had not had the opportunity to inform his family of the charges against him.
Mr Stewart said Malaysian media were reporting confirmation that Ismail was from their country, and it made no sense that New Zealand media were still gagged.
He said "chatter has commenced” online.
“It’s being discussed on social media, the country of origin has certainly been mentioned by one or two online commentators,” Mr Stewart warned.
He said New Zealand media were being “extremely restrained and responsible” in making an application to have the name suppression lifted.
Crown lawyer Grant Burston, representing police, told the court the Crown did not oppose the appeal, and there was no evidential basis for suppression to continue.
He said lifting name suppression for Ismail would not cause hardship to his alleged victim, or prejudice a fair trial, given he had claimed immunity and was no longer in the country.
Lawyer Barbara Hunt was called in today as a court-appointed amacus on behalf of Ismail, after representing him at his first appearance in court last month.
It's not clear whether he had representation at his subsequent court appearances.
Ms Hunt told the court she sought the interim name suppression because of the serious nature of the charges against Ismail, and because he had not had an opportunity to inform his family.
McCully wants more information before discussing extradition
Foreign Minister Murray McCully is waiting for more information before offering any views as to whether a Malaysian diplomat facing serious criminal charges could be brought back to New Zealand.
Malaysian media have reported the Malaysian Government is open to sending Ismail back if a fair trial can be assured and that his life wouldn't be threatened.
Mr McCully says he's seen the reports, but not the comments themselves and won't say if such assurances could be made.
"I'd rather not deal with that hypothetical question - there's suggestion we're going to see something formal from the government this afternoon.
"I'd rather we saw that and could reflect on the actual words used and not media reports."
Court hearing underway
A court hearing is about to get underway, on name suppression for a foreign diplomat, accused of a Wellington sexual assault.
Media are seeking to overturn the suppression on his identity, and the high commission he worked for.
The man's government has already confirmed the diplomat's nationality to that country's media, but New Zealand media remain bound by the suppression order.
His home country's government says the diplomat could be sent back to New Zealand to face justice, if he's guaranteed a fair trial.
The Foreign Minister of the country of the diplomat facing sex and burglary allegations is expected to hold a news conference later today.
Even if the diplomat's country goes public, Prime Minister John Key says they wouldn't be able to talk about it because his name is suppressed in this country.
"As crazy as it sounds the current advice is we are not free to talk about it - but, sounds crazy."
A diplomat accused of a Wellington sexual assault, may be sent back to New Zealand to face justice.
The man's identity and his country are suppressed - but media in his home country report that their foreign minister has confirmed the diplomat's nationality.
He's also told local media the man will be returned to New Zealand if he's guaranteed a fair trial, and won't be endangered.
Our government's lent its backing to attempts by Kiwi media to overturn the current suppression order.
The 30-year-old man has fled the country after his High Commission invoked diplomatic immunity.
Prime Minister John Key's not ruling out further steps if the issue isn't dealt with satisfactorily but he wouldn't say what they'd be.
Meanwhile, the Government would like to see the suppression order lifted that's preventing identification of a foreign diplomat facing sexual assault with intent to rape and burglary charges.
Foreign Minister Murray McCully says he expects action to be taken again the man in his own country.
"The relevant country has put in place a procedure to hold this person to account.
"We welcome that, but we obviously also watch how that process plays out because we want to ensure that there is some sense of justice."
Labour goes on the attack
Labour is accusing the Government of reacting slowly to an alleged sexual assault with intent to rape and burglary by a foreign diplomat.
The alleged offences took place in May and David Cunliffe says the Government's been tardy.
"It does seem that the government's acts here have been reactive to the media agenda rather than being proactive in the interests of the New Zealand public."
Media try to overturn suppression
News media organisations are today in court trying to overturn a suppression order on a diplomat who's fled the country after being charged with sexual assault with intent to rape and burglary.
The 30 year old man's country invoked diplomatic immunity for him.
The man's boss, a High Commissioner, has been spoken to by Foreign Affairs and has been told they expect him to answer to the charges.
Foreign Minister Murray McCully can't see why the suppression order was agreed to.
"I can't see any public policy reason why the suppression order should remain.
"That's normally done to protect a fair trial and there won't be a trial."
Possible press conference
We can't say where he's from - but that's not stopping the home country of the diplomat accused of a sex attack from going public.
A Wellington court order prevents New Zealand media saying which embassy the man belonged to before he was recalled under diplomatic immunity.
But the Foreign Minister of that country is said to be holding a press conference on the matter, possibly today.
There's hope the diplomat will face justice in his home country.
He's under investigation there after the country refused to waive his diplomatic immunity to New Zealand authorities.
The man and the country's identity is suppressed, but the Prime Minister's described it as a close relation.
Otago University professor of international relations, Robert Patman, says that suggests John Key is hopeful for justice.
"The fact that he said close relation suggests it's a country that shares some of the values that New Zealand has, presumably a commitment to democracy."
He says most diplomats are incredibly professional in the way they carry themselves.
"He clearly acted in a way that which is wholly inappropriate for a diplomat and I think that sort of behaviour is quite rare."
Mr Key says he's following the investigation closely, and will keep options open should he not be satisfied by it.
Mr Patman says there's really only one option for the Prime Minister.
"He may once again restate the case for diplomatic immunity being waived."
There's no guarantee the foreign diplomat scandal would have been made public, had media not found out about it.
The Prime Minister says he can't absolutely confirm the matter would have been publicised if it hadn't been picked up by the papers.
Nor can he say what his office's intentions were.
"Don't know actually. It never tested or discussed in my office."
Mr Key's not saying what will be done if a diplomat, who's avoided criminal charges here, isn't held to account in his home country.
"I really don't want to speculate on that today because I don't think that's helpful to the process. We've received the assurance that they'll be held to account so we'll see where it goes."
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