A judge who initially refused to engage with special counsel in a Judicial Conduct Panel considering the future of another district judge has given evidence, saying no one was drinking excessively on the night of a Northern Club judges’ dinner, “with the possible exception of Mr [Michael] Reed, KC”.
Judge David McNaughton was called as a witness this morning on the fifth day of the unprecedented panel hearing into the actions of his colleague and good friend, Judge Ema Aitken.
The hearing earlier heard that Judge McNaughton had been reluctant to provide information to special counsel Tim Stephens, KC, but agreed to give evidence after a request from the three presiding panel members this week.
Entering the witness box today, he was asked about a January 2025 letter he wrote in support of Judge Aitken after media coverage erupted about a series of disruptions to a NZ First fundraising event at the Northern Club on November 22, 2024.
He told the hearing he was asked to prepare the statement by Judge Aitken in preparation for a complaint about her actions that night to the Judicial Conduct Commissioner.
Stephens greeted Judge McNaughton, then asked him to read his letter aloud.
Reciting the letter, the judge said he attended the end-of-year Christmas dinner for Auckland judges in a function room at the exclusive club.
Judge McNaughton recalled seeing people at another function room next door but said he did not know it was a NZ First event, or notice any political banners.
“No one at our table was drinking excessively, with the possible exception of Mr Reed, KC,” the letter stated.
The letter recounted Judge Aiken returning to the judges’ function room after she visited the bathroom.
“She had heard Winston Peters saying tikanga is taking over the laws of New Zealand,” the letter stated.
Judge McNaughton said Judge Aitken appeared calm. About 15 minutes later, her husband, celebrity doctor David Galler, left the table. It later emerged he had had an interaction with NZ First minister Casey Costello, the hearing has heard.
About 10pm, Judge McNaughton recalled seeing Reed at the judges’ table after the KC had been involved in “an interaction with Northern Club staff”, the letter said.
“Things had clearly not gone well.”
Video of that interaction was earlier played to the hearing. It showed Reed entering the NZ First function and being asked to leave by the party’s secretary Holly Howard and a club staffer.
Reed began taking photographs of attendees, and said: “Don’t touch me or you will be sued for a lot of money.”
He continued: ”Will you tell Winston from me please that I’m upset about being a New Zealand First supporter. I’m on the mailing list."
He was seen dropping his phone before being escorted from the room.
Stephens asked Judge McNaughton if there was anything in his letter he wished to change.
McNaughton said the final letter was “not phrased exactly as I originally had”, explaining that Judge Aitken’s then lawyer Deborah Manning had made some edits to the statement he initially provided.
For example, the first sentence said, “As I am a district court judge”.
“Well I’m pretty sure I didn’t say that,” the judge told the hearing.
“I wouldn’t need to explain that. I didn’t put that in.”
He said the letter’s last paragraph - referencing Reed’s interaction - had also been changed.
“I don’t think I referred to ‘Northern Club staff’ because I knew Mr Reed had had an interaction with people who were attending the New Zealand First function, so that’s not right.”
Stephens asked the judge if he would keep the words, “clearly not gone well” in the letter, in reference to Reed.
“Yes,” the judge replied. “He was upset.”
Stephens referred to another extract in Judge McNaughton’s letter, in which the judge recalled Judge Aitken returning from the bathroom and saying she was “surprised” that Peters had expressed his tikanga views and that there was a “room full of judges” who could assure Peters he was wrong.
McNaughton said there were judges in the room who disagreed with Peters’ statement, which was “clearly wrong”.
“We all said something along the same lines.”
He recalled being sent the final draft of his letter by Manning. He read it quickly as he was at work and very busy, before signing it and sending it back.
In hindsight he wished he’d given more consideration to the final draft.
“I should have read it more carefully and slowly and I regret that I didn’t, but I was in a hurry.”
David Jones KC asked Judge McNaughton for his thoughts about Judge Aitken’s integrity.
He replied that she was “highly principled” and held in high regard by her judicial colleagues and members of the bar.
“She is a courageous woman. I think she is one of the best judges on our bench.”
In some ways she was “too good” for a district court judge.
Judge McNaughton was then asked about the notion of comity and what it meant in practical terms for a sitting judge.
“We respect the independence of the various branches of government. We don’t expect politicians to criticise our judgments and in turn we do not criticise politicians or express views about political matters in a public setting.”
He did not believe judges were prevented from expressing personal views about political matters in private settings, however.
Lead panel member, retired Court of Appeal Judge Brendan Brown KC, thanked Judge McNaughton for his attendance, saying he appreciated that giving evidence was uncommon for a sitting judge.
“Not a comfortable place for a judge to be,” Judge McNaughton joked before leaving the witness box.
The hearing continues next week.
Lane Nichols is Auckland desk editor for the New Zealand Herald with more than 20 years’ experience in the industry.