Judge's decision to permanently suppress serial offender's identity overturned after Herald challenge

The <i>Herald</i> successfully challenged Judge David McNaughton's suppression decision. Photo / 1 News

A judge's decision to permanently suppress the name of a man who helped a crash victim before robbing her has been quashed following a challenge by the Herald.

Judge David McNaughton, who sits at the Manukau District Court, suppressed the man's name in August because of concerns his alcohol and drug rehabilitation at Odyssey House could be severely compromised if he was identified.

However, last week the Herald challenged the decision in the High Court.

Justice Timothy Brewer later released his decision and ruled in favour of the newspaper.

The offender, who did not produce any evidence of attending the rehab clinic, can still not be named after his lawyer, Devon Kemp, indicated he will seek to challenge Justice Brewer's decision in the Court of Appeal.

The man first helped but then robbed Shevaughn Johnstone just moments after she was involved in a serious crash in Papakura last year.

Johnstone was unable to be identified in the crumpled car by paramedics because her wallet was stolen.

"In my view, Judge McNaughton erred in both assessments," Justice Brewer's decision reads.

"First, and without expressing a view on whether the threshold was crossed, the hardship identified by the judge might only occur if [the offender] actually attended the Odyssey House programme.

"Further, the risk of hardship identified by the judge was a contingent and temporary one. It was contingent on [the offender] actually attending the Odyssey House programme ... the judge failed to take into account the contingent and temporary nature of the risk he identified in exercising his discretion to grant permanent suppression of [the offender's] name."

Justice Timothy Brewer ruled in favour of the <i>Herald</i>. Photo / Andrew Warner

Justice Brewer said Judge McNaughton should have extended interim name suppression for the period of time the offender was in rehab to curb his concerns.

The High Court judge also found more faults in Judge McNaughton's decision by "failing to take account of two other relevant factors".

Judge McNaughton failed to inquire about Johnstone's views, Justice Brewer said. Johnstone later conveyed she was vehemently opposed to permanent name suppression.

"She was entitled to have her views taken into account by the judge, and he had an obligation to at least inquire as to what they were," Justice Brewer said.

When told of the High Court decision, Johnstone said she was thrilled.

She said she was appalled the offender was given name suppression and wanted him named for the good of the community.

"This isn't just for me - this is for everyone else out there," she said.

"The best thing that can happen is for him to be named so everyone knows what he did and they can be aware of who he is."

Judge McNaughton also erred by suppressing the offender's name relating to other charges he faced of lesser public interest, Justice Brewer said.

"There was no need to suppress his name in relation to those charges."

When making his decision, Judge McNaughton also said publicity may force the offender's mother to quit her well-known position, while her organisation could fold under financial pressures.

The mother's organisation has also hosted Odyssey House, the court heard during the Herald's appeal.

The man robbed Shevaughn Johnstone after she was seriously injured in a car crash. Photo / Supplied

While Justice Brewer said if the organisation was to fold it would constitute extreme hardship he added: "I think it is speculative to simply predict catastrophe.

"[The mother] has no need to resign her position," he said.

The offender has been incurring criminal convictions since 2005, which Justice Brewer said had not compromised his mother's position or her organisation.

"I acknowledge that [the mother] is now likely to gain more publicity than before but that will not come as a bombshell given his criminal history."

The offender was released from custody on July 19 with time already served for his 12 months' imprisonment sentence.

He was also convicted of driving while disqualified, drink driving, breaching community work, failing to answer bail, and providing false details at the same time, and the sentence also covered those convictions.

The <i>Herald</i> successfully challenged Judge David McNaughton's suppression decision. Photo / 1 News

Judge McNaughton has been a member of the Odyssey House board of trustees since September 2013, according to the Charities Services register.

Justice Brewer said at the appeal he would consider if Judge McNaughton erred by drawing on his personal experience with the clinic.

When referencing his "direct experience" with defendants undertaking substance abuse programmes in his decision, Judge McNaughton said a resident at the clinic quit his treatment and went on an armed crime spree "as a direct result" of a Weekend Herald story.

The front-page article detailed how fraudsters Rose Te Raumahi Hira and Adam Matthew Deed posed as hospital staff and school visitors to steal credit cards from medical staff and teachers, before spending more than $50,000 on jewellery and other items.

In addition to Judge McNaughton, Odyssey House has had only one other sitting judge on its board of trustees, Judge Philippa Cunningham. She left the role in 2012, the Charities Services register shows.

Justice Anne Hinton was a board member but relinquished her role in 2015 shortly after being sworn in as a High Court judge.

Austin Forbes QC, a member of the New Zealand Law Society's rule of law committee, spoke to the Herald about the implications of judges sitting on boards and independent bodies.

He said counsel would normally be advised by the presiding judge of their outside interests before a hearing and ask for any objections.

"If the judge's association with any other body or organisation could be material to the case before him the judge ought to declare it," Forbes said.

"If it's the actual party then the judge would declare it and usually would recuse himself or herself."

Judge Richard McIlraith was initially due to hear the offender's case but earlier recused himself because of a conflict of interest.

Forbes said the issue should be decided on a case-by-case basis, with what may be relevant to the judge to declare.

However, if a judge sat on the board of a medical clinic, they may feel there is no problem because they are not involved in the day-to-day care of patients and may view it to be the best place for a defendant, Forbes said.

He added it was not common for current judges to sit on other organisational bodies, with judges often relinquishing their roles before being appointed to the judicial bench.

After the Herald published its story about Judge McNaughton's decision, New Zealand Bar Association president Clive Elliott QC criticised the paper for what he called a "vindictive" and "personal" attack on a judge.

Weekend Herald and Herald on Sunday editor Stuart Dye and New Zealand Herald editor Murray Kirkness said the story was a fair, balanced and accurate report of the judge's decision in open court proceedings.