Let's try to dissect the many facets and fallacies involved with not knowing the names originally and what might happen to the keyboard warriors who have felt inclined to flout name suppression rules by expressing their rage on social media.
In the original decision, Judge Davidson said it mightn't be in his jurisdiction to grant interim name suppression as the Criminal Procedure Act clearly said he can only do so when a person was charged with an offence or making a first appearance in court.
However, he said the District Court could have the power to do so under its incidental and implied powers. Relevant factors would be the imminence of charges; any delay in first appearance, namely Auckland being in alert level 4; and the judge's sense of any adverse media, particularly social media reaction.
In this case, police first said the couple would be issued with a summons to appear in court, then they were "now considering charges under the Covid-19 Public Health Response Act 2020". What we now know is that "police are considering our enforcement options available to us and a decision on any charges has not been made at this stage".
It's still unclear whether the couple will in fact be charged, but Judge Davidson's decision to preserve the existing position and allow the couple to get their affairs in order and to apply properly to the High Court seemed logical, and not entirely uncommon, Canterbury University law Professor Ursula Cheer says.
The same situation occurred in 2019, when Stuff attempted to print a story relating to the identification of a teacher and alleged reports of sexual misconduct. A police investigation was under way, but no charges had been laid, Cheer says. It comes down to whether there might be a serious risk to the right to a fair trial, she says.
The theory goes that if a person's name is in print, it would be easy for a jury member to Google an accused's name and get details around any prior offending, or take a view of a person before they get to present their case in court. If you're found not guilty too, then there's the fact that mud sticks.
Under the Criminal Procedure Act 2011, name suppression can be granted if publication of a person's name might cause extreme hardship to a person charged or to any victim of the offence, create a real risk of prejudice to a fair trial, or endanger the safety of any person, for example.
"Here, possible harm to the people involved is a real risk. A lot of the information on social media has been vicious, I imagine, and some people might take it upon themselves to dispense vigilante justice on these people," Cheer says.
Permanent name suppression is another thing entirely, and rarely given, Cheer says. Official information figures from September 2014 showed 880 people were granted permanent name suppression in 2009, of whom 218 were convicted. The figure has been dropping steadily each year, reaching 354 granted in 2012, including 222 convicted offenders.
Contrary to popular belief, celebrity status wouldn't be considered a reasonable justification for name suppression of itself or that a person is more likely to suffer extreme hardship, Cheer says.
"The list of factors that need to be established to secure name suppression in section 200 explicitly tries to provide an equal playing field for all people, famous or not."
And that extends to wealthy people in this instance, where to suggest a person could buy a suppression order or convince a judge to do so because of their status in society is appalling and outrageous, she says.
"[That the wealthy could have an easier time to get name suppression] is so simplistic and silly. It's such a worn-out narrative. What should be looked at is whether the person had proper grounds to get it, and if those were weak, they should be challenged."
The fundamental principles of having the right to a fair trial and open justice presents a dichotomy that is for some cases, irreconcilable.
In any event, there's often more to the story and breaching suppression orders by blabbering about the circumstance on social media in the name of freedom of speech may mean you too can have your day in court and be smacked with a fine of up to $25,000.
- Sasha Borissenko is a freelance journalist who has reported extensively on the law industry.
