Tovey v The the King - [2022] NZHC 3218

NOTE: PUBLICATION OF SPECIFIED IDERNTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL

PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-135

[2022] NZHC 3218

BETWEEN
ANDREW MURRAY TOVEY

Appellant

AND

THE KING

Respondent

Hearing: 1 December 2022

Appearances:

P N Allan for Appellant

S J Mallett for Respondent

Judgment:

1 December 2022

ORAL JUDGMENT OF EATON J

Redacted for Publication

Introduction

[1] Andrew Tovey is charged with sexual violation by unlawful sexual connection1 and indecent assault on a child.2 On 18 August 2022, Judge Harvey declined to continue an interim order for suppression of Mr Tovey’s name.3 Mr Tovey appeals that decision. He says suppression of his name may identify the complainants, would cast suspicion on his wife and endanger the safety of his grandchildren.

1      Crimes Act 1961, ss 128(1)(b) and 128B; maximum penalty 20 years’ imprisonment.
2      Crimes Act, s 132(3); maximum penalty 10 years’ imprisonment.
3      R v Tovey [2022] NZDC 157444.

TOVEY v R [2022] NZHC 3218 [1 December 2022]

Background

[2] Mr Tovey is presumed innocent of the charges. The relevant background is the allegations recorded in the Police summary of facts.

[3]Mr Tovey and his wife were […].

[4] The first complainant […]. He is alleged to have pulled down her pyjamas and inserted his finger into her vagina despite her protests on numerous occasions. This caused her vagina to hurt. When she said he was hurting her, he would say he was not. The last time Mr Tovey is alleged to have digitally penetrated the complainant, he grabbed her hand from under the blanket and placed it over his jeans on his genitals. He is alleged to have said “[n]ext time you’re going to touch this”. […].

[5] The second complainant […]. The first time he […] pulled down her pyjamas and touched her vagina with a flat open hand that he moved in a circular motion. She was upset the next day and cried at school. In […] noticed an entry in her diary about Mr Tovey touching her private parts. She had written “[Mr Tovey] touch my private parts and it was disgusting, I really hate him”.

[6] When spoken to by the Police the complainants also described receiving physical abuse from Mr Tovey […].

[7] Mr Tovey denied ever touching or physically assaulting the complainants. He denied being involved in the second complainant’s […].

[8] Mr Tovey advanced his application for continued name suppression in the District Court on the basis publication of his name would cause him extreme hardship, cast suspicion on his wife that may cause her undue hardship and impact her career, endanger the safety of his grandchildren and may identify the complainants. He filed an affidavit in support of his application.

District Court decision

[9] Judge Harvey considered each of the grounds raised in Mr Tovey’s affidavit. The Judge accepted Mr Tovey was genuinely concerned that publication would damage his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 3218
Decision Date: 1 December 2022

CaseChat Overview and Summary

In the case of Tovey v The King, the appellant, Andrew Tovey, sought to appeal against the decision of Judge Harvey, who declined to continue an interim order for suppression of Mr Tovey's name in relation to charges of sexual violation and indecent assault on a child. The court was required to decide whether the suppression of Mr Tovey's name was justified under the grounds specified in section 200(2) of the Criminal Procedure Act 2011.

The court began by outlining the principle of open justice, which presumes that the business of the courts should be conducted publicly. A suppression order may only be made if one of the threshold grounds under section 200(2) is met, and the balance must clearly favour suppression. The court then examined each of the grounds advanced by Mr Tovey. Firstly, the court found that the suppression order made by the Judge in the District Court, which prohibited publication of the location of the offending, the age of the complainants and their relationship to Mr Tovey, addressed the risk of identification of the complainants. Secondly, the court found that there was no link between Mr Tovey and his wife that would give rise to any relevant risk of suspicion, and the Judge had appropriately observed that she does not face charges. Lastly, the court found that the risk of endangerment to Mr Tovey's grandchildren was speculative and insufficient to displace the presumption of open justice.

In conclusion, the court found that Mr Tovey had not demonstrated any error in the Judge's decision or that any threshold ground under section 200(2) was satisfied. The appeal was therefore dismissed.

The final orders of the court were to dismiss the appeal against the decision of Judge Harvey.

Orders