ANALYSIS:
Sometimes the more outrageous an alleged offence is, the more likely you are to get name suppression.
It's a product partly of collisions between law and feverish social media, where credible and fake information both move as fast as the Delta variant in a super-spreader jamboree.
And it's not an easy problem to solve, says Dr Fran Tyler.
"It's the public outrage that causes the public not to be told," the Massey University tutor and former court reporter says.
That's because real or anticipated media or social media backlash can compel judges to take steps to protect the identity of people charged with appalling offences.
A couple who allegedly breached lockdown by fleeing Auckland for a Wānaka holiday home have inspired immense public indignation.
Screeds of commentary about the alleged jaunt were shared online. The couple have still not appeared in court but were granted interim name suppression at an extraordinary hearing last night.
It seems the more lurid, topical or tone-deaf an alleged offence is, the more likely a defence lawyer will argue a client could suffer from vilification once the client's identity is published.
Tyler has been studying name suppression issues for years. She says the current dilemma now stems largely from a Young Labour scandal and because lawmakers can't keep up with the changing nature of social media.
The Young Labour defendant is known as "X" in legal records. Previously, he was known for putting his hands down people's pants during an idiotic drunken evening at a 2018 political youth camp.
Initially charged with indecent assault, he was later discharged without conviction on two common assault charges which he'd admitted - but the name suppression issue was unresolved.
The case snaked its way through courts, with one judge noting the huge attention the case attracted on social and mainstream media, even overseas media.
"He will likely become a target, not only for legitimate criticism, but for unfair
vitriol and vilification as a sexual offender," Justice Christian Whata of the High Court said.
But the judge said ongoing legitimate public interest in the proceedings must prevail, and name suppression should not continue.
Dissatisfied, Mr X went to the Court of Appeal, which cited the wider political context of the case, and dedicated much discussion to social media.
The appeal court said mainstream media coverage, governed by formal guidelines, was crucial to open justice.
But in a decision released a year ago, the Court of Appeal said there was no reasonable expectation reporting on social media would be fair or accurate.
"And there is no realistic way of controlling its content or its spread, particularly in a high profile and politically controversial case."
The appeal court permanently X'd the defendant's name. Tyler says that judgment set a precedent.
She says the courts effectively found if Mr X was named: "He's actually going to have to cut himself off from social media, and that's an important part of our lives in this day and age."
It's not just sordid, politically charged or Covid cases stirring fears about uncontrollable social media backlash.
Last week and again today, a 19-year-old accused of threatening to kill non-Muslims was granted interim name suppression after his lawyer argued the teenager could face threats and harassment.
The Herald argued any such threats were speculative, and not shown to have been made. But that was partly because the defendant's name was just not widely known yet, the counter-argument went.
The teenager appeared in court at a time of high community tensions, just one week after a terrorist launched a stabbing frenzy in a New Lynn supermarket.
In any case, a defence counsel needs to only lodge an arguable case for interim name suppression. It's harder to acquire permanent suppression.
By law, numerous grounds can be used to argue for suppression, but in the criminal courts discussion often pivots on fair trial rights, personal safety reasons, or extreme hardship.
The last one is what chews up so much court time now, as defence lawyers outline real or potential difficulties clients might face from public vitriol, including that frequently spewing unchecked on social media.
"When the current legislation was written, social media was largely a non-thing. It was still in its infancy," Tyler says.
Now, laggard lawmakers struggle to keep up with the impact social media can have on defendants and trials.
Tyler says the allegedly illegal Wānaka expedition has unsurprisingly provoked much displeasure, as so many New Zealanders make lockdown sacrifices to beat the pandemic.
"Understandably, five million minus two of them are probably a little bit upset."
But often, the more fury emerging online before someone appears in court, the more likely the public will be deprived of knowing who the alleged offenders are.
"It's a circular argument," Tyler said.
It wasn't intended, but that's how it is, leaving us back where we started. Kind of like an Auckland-Wānaka round trip.
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