District Court Judge Ema Aitken denies some of the claims. Photo / RNZ, Dan Cook
A panel considering the future of a judge caught up in a high-profile “fracas” involving Winston Peters will visit the exclusive Northern Club tomorrow as part of its inquiries.
But the panel rebuffed the judge’s desire to accompany them on the tour, saying she should visit the swanky Auckland venue “on her own” given she is the subject of their investigation.
District Court Judge Ema Aitken is “fighting for her judicial career”, her lawyer David Jones KC told an unprecedented Judicial Conduct Panel hearing today.
Jones criticised what he claimed had been a lack of proper disclosure from special counsel Tim Stephens KC, who Jones said was effectively acting as a prosecutor.
“And Judge Aitken feels like a defendant.”
Jones said he wanted access to every document that recorded what five people who would be called to give evidence had said about the night in question - even those which Stephens claimed were subject to “litigation privilege”.
The material “must be disclosed” in the interests of natural justice and fair trial rights “for someone who is fighting for their judicial career”, Jones said.
“I will never give up my application ... for full disclosure. I’ll settle for any communication that records what a witness has said.”
The judicial conduct hearing is set down for two weeks. It will help determine whether Aitken should be removed from office due to her alleged conduct at an event in November 2024.
Judge Aitken is accused of disrupting a NZ First function at the Northern Club.
The incident allegedly involved the judge yelling at the NZ First leader and accusing him of lying, while her husband, celebrity doctor David Galler, allegedly cornered party MP Casey Costello and berated her.
The judge has denied shouting, saying she didn’t recognise Peters’ voice when she responded to remarks about “tikanga” and didn’t realise it was a political event.
She has publicly apologised for her behaviour, which she accepted was rude and inappropriate.
Lead panel member, retired Court of Appeal Judge Brendan Brown KC, said the three-person panel would visit the Northern Club tomorrow afternoon to familiarise themselves with the layout of the building, which would be the subject of witness evidence.
The panel would be accompanied by legal counsel. Media were not permitted to attend.
“I’m sure the judge would like to attend as well,” Jones said of his client.
“I don’t think that’s appropriate,” Brown replied.
“It’s for us to use our eyes to see. The judge must be familiar with the venue but if she wants to go and familiarise herself again I’d rather she did that on her own.”
Jones replied that Judge Aitken had only attended the club “a handful of times” over the years.
“I don’t think it’s a good idea for us to be accompanied by someone who is the subject of the inquiry,” Brown reiterated.
The Judicial Conduct Panel hearing commenced this morning.
In his opening submissions, Stephens said this was the first time in New Zealand a judicial panel process had got as far as a substantive hearing.
The process was of constitutional importance, he said. It would help determine whether the judge was fit to hold office or whether she should be removed.
The process would also help protect the “integrity and impartiality” of the justice system while maintaining public confidence.
At the completion of the hearing, the panel will prepare a report on the facts of the case and provide an opinion as to whether consideration of the judge’s removal is justified by the acting Attorney-General, Paul Goldsmith.
The acting Attorney would then have the ultimate decision on whether to remove the judge.
Stephens told the hearing judges could be removed from office due to misbehaviour or ability.
“Removal of a judge involves exceptional measures and ... a high threshold.
“The appointment of a panel is obviously a very serious matter for the judge concerned, but the process doesn’t automatically lead to their removal.”
The panel overseeing the inquiry is led by Brown, and includes sitting Court of Appeal Judge Justice Jillian Mallon and former Governor-General Sir Jerry Mateparae.
There were two functions at the Northern Club on November 22, 2024.
One was for judges to mark Judge Aitken’s resignation of her warrant and the retirement of two District Court judges. The other was a NZ First fundraiser.
NZ First’s account – which was included in a report prepared by the Northern Club – is that as the NZ First leader spoke, Judge Aitken tried to enter the room and shouted; “He’s lying! How can you let him say that?”.
It is contended that the judge continued to shout and make a scene, saying there was a roomful of judges next door who would be interested in these comments.
But Judge Aitken has a different recollection.
In a letter to the Judicial Commissioner, provided to NZME, the judge gave her account of what happened that night, saying while she was returning from the toilet, she took a wrong turn and inadvertently walked past the NZ First function.
While passing the room, she heard a snippet of a speech from a male speaker saying something along the lines of; “They’re now teaching in law school that tikanga Māori law overrides the Westminster system”.
She said she was surprised and taken aback as she wasn’t expecting to hear the word tikanga at what she assumed was a social function.
“The statement was incorrect to me and mischaracterised the important role of tikanga for lawyers and judges in the District Court processes,” she said in her statement.
As she walked past, she said, she mouthed to a woman seated at a table near the door, who looked familiar; “that’s not true”. She said that would have been inaudible. She later recognised the woman as NZ First MP Casey Costello.
She said she made a comment disagreeing with the speaker, reportedly, “He’s lying, how can you let him say that?”.
The judge said no one at the table with Costello, which she estimated included at least six others, turned and responded to her comment.
She denied shouting and said she was speaking in a normal voice.
The judge said she was quickly approached by a man and a woman, who walked her back down to her function, which was in the room next door.
Judge Aitken said as she was being guided back she commented there was a room full of judges who might have a different view to what the speaker was saying.
She said that was only to illustrate that there was a group of informed members of the community who might hold a differing view from the one expressed by the speaker.
She said it was only at this point that she looked back and realised the speaker was Peters and the woman she’d seen sitting at the table was Costello.
“I didn’t know who the speaker was, but I did believe the speaker’s comments went a step too far,” she said.
She also denied entering the room, saying she made the comment in the foyer as she walked past.
“It did not occur to me at the time that my comments or actions might have crossed the line between the Executive and the Judiciary. The situation was entirely unexpected and perplexing, but at the same time I did not see it as anything more than that.”
Media reports of the night have suggested Judge Aitken’s comments and the actions of her partner, intensive care specialist Galler, and a senior lawyer, Michael Reed, KC, were part of a “rolling fracas”.
Galler is alleged to have yelled at Peters and cornered Costello about the repealing of the smoke-free legislation. Galler has since apologised for his actions.
Meanwhile, Reed is accused of filming on his phone, which was against the rules.
Judge Aitken has said the event didn’t reach the magnitude as described by NZ First.
Lane Nichols is Auckland desk editor for the New Zealand Herald with more than 20 years’ experience in the industry.
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