Tovey v The the King
[2022] NZHC 3218
•1 December 2022
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 mental health, his reputation, cause him anxiety and take his mind away from his recovery from prostate cancer. However, the Judge was not satisfied these consequences were out of the ordinary. They did not meet the very high threshold for extreme hardship. Likewise, the Judge accepted publication might cause anguish to his wife and other family members but was not satisfied that would outweigh the principle of open justice. The Judge did not accept publication would cast suspicion on Mr Tovey’s wife because it will be clear she did not face charges. Any hardship she faced would not be beyond the norm. There was no evidence that Mr Tovey’s grandchildren would be endangered by publication other than what Mr Tovey says. The Judge noted those grandchildren do not bear his surname.
[10] The Judge was therefore satisfied that provided he suppressed the nature of the relationship of the complainants to Mr Tovey, their ages and the dates and location of the alleged offending, the risk of identification of the complainant was removed.
[11] The Judge was not satisfied any of the grounds under s 200(2) were met. In addition, the Judge found that the principle of open justice had to prevail.
Principles on appeal
[12] The starting point for consideration of a suppression order is the presumption of open justice.4 The business of the courts should be conducted publicly and any departure from this general rule ought only be “to the extent necessary to serve the ends of justice.”5 A suppression order may be made under s 200 of the Criminal Procedure Act 2011, which provides:
200 Court may suppress identity of defendant
(1)A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
4 Robertson v Police [2015] NZCA 7; D(CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614.
5 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [3].
(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a)cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
(b)cast suspicion on another person that may cause undue hardship to that person; or
(c)cause undue hardship to any victim of the offence; or
…
(e)endanger the safety of any person; or
(f)lead to the identification of another person whose name is suppressed by order or by law; or
…
[13] The approach to suppression involves a two-step inquiry.6 First, the Court must determine whether a threshold ground set out in s 200(2) is met. If the threshold is not met, the Court does not have jurisdiction to grant name suppression. Second, if the Court is satisfied one of the threshold grounds is met, it must determine whether to exercise its discretion and forbid publication of the defendant’s details.7 To displace the presumption of open justice, the balance must clearly favour the suppression.8
[14] An appeal court is required to undertake its own assessment of whether the threshold test is met.9 This will involve an assessment of fact and degree. While the appeal court must not defer to the lower court’s assessment, it remains incumbent on the appellant to identify error in the lower court’s decision and satisfy the appeal court it should reach a different result.10 If satisfied the threshold has been met, the appeal court’s review of the second step, which in the lower court involved the exercise of discretion, will be more limited. It must focus on whether the lower court, in
6 D(CA443/2015) v Police, above n 4, at [10].
7 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police, above n 4;
D(CA443/2015) v Police, above n 4.
8 D(CA443/2015) v Police, above n 4, at [17].
9 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
10 Austin, Nichols & Co Inc v Stichting Lodestar, above n 9,
exercising its discretion: erred in principle; failed to consider a relevant matter; considered an irrelevant matter; or was plainly wrong.11
[15] To determine the appeal the Court will confirm, vary or set aside the decision appealed against or make other appropriate orders.12
Submissions
Appellant’s submissions
[16] Mr Tupaea was acting for Mr Tovey when the appeal was filed. He had filed written submissions in support of the appeal. Mr Allan is now engaged to act for Mr Tovey. He adopted Mr Tupaea’s written submissions and advanced further oral argument.
[17] In the written submissions, it was submitted the Judge erred in rejecting defence submissions that the publication of Mr Tovey’s name would undermine the statutory suppression of the identity of the complainants, cast suspicion in the community on his wife and risk the psychological safety of his grandchildren. Counsel does not advance the appeal on the basis publication would cause extreme hardship to Mr Tovey.
[18] […]
[19] Mr Allan specifically referred me to the Wikipedia report about the town […] where Mr Tovey resides and is, I am told, well known. He describes it as a town […] where, he submits, there will be inevitable identification of the complainants in the event that Mr Tovey’s name was published.
[20] It was also submitted that there was a risk of Mr Tovey’s wife being mistakenly considered to have acquiesced to the alleged offending or have been otherwise involved to some extent. Counsel submitted that safety in the context of s 200(2)(e) extended to psychological safety and publication posed a risk to Mr Tovey’s
11 Wilson v R [2018] NZHC 1778 at [14] citing K v B [2010] NZSC 112, [2011] 2 NZLR 1 at [31]-
[33].
12 Criminal Procedure Act 2011, s 287.
grandchildren’s psychological safety through them being exposed to bullying or harassment at school. Counsel submitted the Family Violence Act 2018 interprets “safety” as including “psychological abuse”.
Respondent’s submissions
[21] Mr Alloway filed submissions on behalf of the Crown. Mr Mallett has appeared and advanced those submissions. The Crown confirmed both in the written submissions and today that the complainants are firm in their views Mr Tovey’s name should be published. It was submitted the suppression order has been made by the Judge in the District Court, as I have set out above at [10], addressed a risk of identifying the complainants. Mr Alloway, in the written submissions, distinguished the case of Stuff Ltd v R, a case that has been referred to by counsel for Mr Tovey, on the basis the […].13 Further, the complainants had requested suppression. Crown counsel submitted the complainants here […] do not support suppression and there is no evidence that […] of Mr Tovey are being harassed.
[22] Mr Alloway, in the written submissions, contended that the suppression of details of the alleged offending designed to protect the complainants would also protect Mr Tovey’s wife. The suppression order meant the public would not know the wife’s relationship to the complainants […]. Moreover, he submitted any reasonable person reading about the charges would not consider his wife to be implicated and the media could and should make that clear.
[23] As to the asserted risk of danger to Mr Tovey’s grandchildren, counsel referred to Inland Revenue Department v Kamal, where Williams J commented that unequivocal evidence will generally be required to avoid fabrication and abuse of s 200(2)(e).14 Mr Alloway submitted there was no evidence of the grandchildren in this case facing any risk. He submitted, if a speculative risk of extended family members being bullied because of their connection to a person facing sexual charges provided grounds for suppression, then near every applicant facing a sexual charge would be entitled to suppression. He submitted something more is required.
13 Stuff Ltd v R [2021] NZCA 86, (2021) 29 CRNZ 658.
14 Inland Revenue Department v Kamal [2013] NZHC 3474.
[24] Turning to the discretion, Crown counsel submitted the asserted risks here were speculative in nature and insufficient to displace the presumption of open justice. That the appeal does invite speculation as to consequences was reinforced by Mr Mallett in his oral submissions.
Analysis
[25] For Mr Tovey to succeed, he must satisfy this Court a threshold ground under s 200(2) is met to provide jurisdiction for a grant of name suppression. I will consider the three grounds advanced in turn.
Undermine statutory suppression relating to the complainants—s 200(2)(f)
[26] For this ground to be met there must be a real and appreciable risk or possibility publication of Mr Tovey’s name will lead to identification of a complainant.15 I do not accept the submission advanced for Mr Tovey that […] that is comparable to the defendant and the complainants in Stuff Ltd v R.16 That case, in my view, is readily distinguishable for the reasons advanced by the Crown.
[27] In his affidavit, Mr Tovey said there was a risk of the complainants being identified because […]. On its own, that is a valid point to be made and one which the Court needs to be alert to in considering the application for suppression. However, the suppression order made by the Judge, which prohibits publication of the location of the offending, the age of the complainants and their relationship to Mr Tovey, in my view, plainly addresses that risk. It follows I am not satisfied there is a real and appreciable risk of identification of the complainants.
[28] Even if I were satisfied that threshold was met, the complainants strongly oppose suppression of Mr Tovey’s name, providing grounds to refuse suppression in the exercise of discretion.17
15 W(CA639/16) v R [2017] NZCA 580 at [18].
16 Stuff Ltd v R, above n 13.
17 See R v Hendriks [2018] NZCA 447.
Cast suspicion on Mr Tovey’s wife—s 200(2)(b)
[29] The suppression order made by the Judge in the District Court also addresses a risk publication would cast suspicion on Mr Tovey’s wife. […], I do not consider there to be any link to his wife that would give rise to any relevant risk. In any event, I agree with the Crown that no reasonable person reading the charges would consider Mr Tovey’s wife to be implicated. The Judge appropriately observed it will be clear that she does not face charges. In my view, this threshold has not been met.
Endanger safety of Mr Tovey’s grandchildren—s 200(2)(e)
[30] For this ground to be satisfied, and in accordance with the authority to which I have referred, there must be an evidential basis for a belief the safety of a person is likely to be endangered.18 Strong evidence will be required to avoid fabrication and abuse of s 200(e).19 On appeal the ground is advanced solely on the basis of an assertion by Mr Tovey in his affidavit that his grandchildren will be subject to ridicule and bullying. Although the grandchildren do not share his surname, Mr Tovey deposes that he and his daughter (the mother of the grandchildren) are well known in the community. Again, I am conscious of the submission advanced by Mr Allan as to the […] size of the township […] and Mr Tovey’s historical connection with that township.
[31] While there is authority suggesting that physical or psychological harm will be sufficient to meet a ground advanced under s 200(2)(e),20 in my view, endangerment of safety must be something more than an asserted risk of bullying by peers. If the speculative risk of extended family members being bullied because of their connection to someone facing sexual charges provided grounds for suppression, then near every applicant facing a sexual charge would be able to satisfy this threshold ground. I am conscious that from within the family there will be heart-felt concerns that there will be consequences flowing from the publication of Mr Tovey’s name.
[32] However, as with the other grounds advanced, I am not satisfied the evidence supports this ground of appeal. In my view, it falls well short of satisfying the
18 Bitossi v R [2014] NZCA 595 at [8].
19 Inland Revenue Department v Kamal, above n 14.
20 R v Shailer [2015] NZHC 2607 at [18].
threshold. Again, even if the threshold ground had been met, the level of speculative harm asserted would fall short of displacing the presumption of open justice.
Conclusion
[33] It follows that, having considered the three grounds of appeal advanced, I am not satisfied Mr Tovey has demonstrated that any error in the Judge’s decision or that a threshold ground under s 200(2) is satisfied.
Result
[34]The appeal is dismissed.
...................................................
Eaton J
Solicitors:
Raymond Donnelly & Co, Christchurch
Copy to:
Phillip Allan, Barrister, Christchurch
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