“I did not and would not lie.”
In an extraordinary brief of evidence, District Court Judge Ema Aitken says she has always acted truthfully and would never try to “minimise” her behaviour.
She denies being affected by alcohol on the night she showed “bad manners” and made “rude” comments at a NZ First fundraising event after overhearing a snippet of a speech by the then Deputy Prime Minister.
But giving evidence today at an unprecedented Judicial Conduct Panel hearing that is considering whether she is fit to hold office, she was adamant she had no idea the speaker was Winston Peters or that it was a political event.
She said her actions on November 22, 2024 at Auckland’s exclusive Northern Club had been unfairly and inaccurately overlaid with a political context and motivation that simply didn’t exist.
She was “appalled” by some media coverage surrounding the incident and was giving evidence today to “answer the allegations that have been made against me by special counsel”.
“I did not appreciate that the circumstances were so readily being classified as political interference by a sitting judge,” Judge Aitken said from the witness box.
“I have never changed my position in this regard. I did not and would not lie and nor would I attempt to minimise my conduct.
“I reacted spontaneously. If I had known that the speaker was Winston Peters or that it was a political function, I would not have made any statement at all.”
The judge of 19 years said she and her husband, celebrity doctor David Galler, ordered a bottle of champagne after arriving at the club about 7pm for a judges’ dinner.
But she had only consumed two glasses by the time she visited the bathroom before passing the Winter Garden room on her way back to the judges’ event.
As she descended the stairs, she heard a speaker in the room say words to the effect of: “They are now teaching in law schools that tikanga Māori laws override our Westminster system.”
She said the comment was false and divisive “misinformation”, and she reacted on the hoof.
She caught the eye of a woman she recognised inside the room but could not place, and mouthed the words, “That’s not true”.
She later learned that woman was NZ First minister Casey Costello.
The judge then made an “audible remark” to the effect of, “What he is saying is incorrect’, or, ”That’s a lie".
“I do not believe I was shouting or yelling,” Judge Aitken told the panel. “I am not a person who shouts or yells, even in the most taxing times, which are plentiful, in the court setting.”
She said she had been tired and drained after a long day of sentencings in the Auckland District Court, which included a particularly distressing case involving a young man who she had to send to prison for drugs and firearms offences.
It involved a lengthy oral decision. Many of the man’s supporters were in tears.
Being a judge was a privilege, she said, and a rewarding career. But it came with great pressures and a huge workload which could be difficult to manage.
She admitted her comments that night were “reactively rude”, saying she was “not normally rude in any setting”.
She had also made a comment about there being a “room full of judges” next door who would be very interested in what had been expressed by the speaker.
Judge Aitken said it was only as she was being escorted away from the room that she looked over her shoulder and realised that speaker was the Deputy Prime Minister.
She returned to her own function and took a seat at her table, admitting: “Oops, oh God. I’ve just called Winston Peters a liar.”
The judge said she warned her husband not to get involved and had no idea he would later disrupt the NZ First function, allegedly calling Costello “despicable” and accusing her of “killing hundreds of people”, in apparent reference to the party’s tobacco policies.
Judge Aitken said she only got wind of Galler’s alleged behaviour days later when she received a call from another judge.
“I was very disappointed in his conduct because he was attending a judges’ dinner.”
She said she was then contacted by Chief District Court Judge Heemi Taumaunu a week after the incident. He later informed her it had been a NZ First event.
She said Judge Taumaunu told her he had discussed the matter with Chief Justice Helen Winkelmann.
“It was clear that they were concerned my conduct could impact the judiciary’s relationship with the executive, and particularly with NZ First.”
She said Judge Taumaunu told her, “We have only just got things on an even keel with NZ First after being on the back foot, and your conduct could set us back.”
She was informed the matter was being considered by the Judicial Conduct Commissioner, and she was urged to write letters of apology to the Northern Club and NZ First.
The judge said she felt “pressured” to write the letters but was prepared to offer a genuine apology for her behaviour, which she described as “completely out of character”.
However, she said the letters she drafted were later altered by a media representative for Judge Taumaunu.
Where Judge Aitken had put her explanation for what happened high in the letter, this was “moved to the bottom” in the final version.
The “suggested edits” were to make the apology “unqualified”, she was told.
The final version “differed from my original draft”.
The judge said she now wished she had pushed back.
“On reflection, I should have been insistent on the content of my apology letter.”
She said a letter of apology from her husband to the Northern Club received similar edits.
Judge Aitken defended “venting” comments she made in another letter to Judge Taumaunu in which she wrote, “There is a time and place to get involved and this is one of them”, and “I can no longer stay silent” in the face of divisiveness “coming from politicians”.
She told the panel she was articulating her feelings, but reiterated she did not appreciate the political context at the time of the November 2024 incident.
She also expressed disappointment at the contents of a letter of apology sent by Judge Taumaunu to the NZ First Party president, in which he “unreservedly apologised” on behalf of the entire district court.
Judge Aitken felt this was unfair on other judges, given the incident was of her making alone.
The judge will continue giving evidence tomorrow morning, before two other judges who were at her table that night are expected to appear as witnesses.
Earlier a Cabinet minister described a “particularly hostile” encounter with a celebrity doctor at a NZ First event in Auckland, claiming the man called her “despicable”, accused her of “killing hundreds of people” and that he smelled of alcohol and appeared “intoxicated”.
NZ First MP Casey Costello said she documented the exchange in her diary the next morning “because I was concerned by the aggressive nature of the confrontation” with a man she later learned was Dr David Galler, Judge Aitken’s partner.
Costello gave evidence this morning about her recollection of a “series of disruptions” at an NZ First fundraising event on November 22, 2024.
She said she was seated near the door of the Winter Garden room during a speech by then Deputy Prime Minister Winston Peters when she noticed a “blonde, fair-haired woman” returning from the bathrooms through the adjacent foyer.
The woman approached the door and began yelling, “This is lies, you don’t know what you are talking about, this is disgusting”, Costello claimed.
“I did not recognise her at the time but subsequently learned she was Judge Aitken.”
The judge continued, “How can you be listening to this?”, Costello said.
“She was staring into the room and said, ‘This is lies’.”
Costello said she believed Peters had been speaking about the Treaty of Waitangi at the time, but under cross-examination accepted he might actually have been discussing the teaching of tikanga Māori in law schools.
Party secretary Holly Howard began shepherding the judge away from the door as she continued “talking loudly”.
Costello said she understood the judge had subsequently claimed she did not realise it was a political event or that the speaker was the Deputy Prime Minister.
“From my observation of events, the judge must have known it was Mr Peters who was speaking.
“The judge would also have been able to see Mr Peters ... given she said Mr Peters’ comments were lies.”
Costello then said a Pākehā man in his 60s or 70s appeared at the door after dessert.
“I could smell alcohol on him and concluded that he was intoxicated.
“He said, ‘You are despicable, I hope you are ashamed of yourself’.”
Costello said she asked Galler why he thought that and he allegedly replied: “You are responsible for killing hundreds of people. You should be proud.“
He also claimed the minister was “paid dues” by tobacco companies, Costello told the hearing.
She said that as a politician, she was used to robust encounters with people who held opposing views, but “this encounter was particularly hostile”.
She said the reason for her diary note was “principally because of the encounter with Dr Galler”, rather than that with the judge.
Yesterday, the panel hearing was played a video of a King’s Counsel being asked to leave the New Zealand First event, with Howard claiming the respected lawyer was “entitled”, “unstable” and she feared for her safety.
“I asked him to leave,” the party’s secretary said about the alleged incident.
She claimed Michael Reed, KC, refused to leave, took photos of those gathered, and threatened to sue her and a staff member if they touched him.
The panel is investigating the actions of Judge Aitken, who is accused of gate-crashing the function and making an “intemperate, rude” outburst in response to a speech by the party’s leader, Winston Peters.
Reed was with Aitken on the evening in question at a separate function in another room in the Northern Club.
Howard claimed to the panel that when she asked Reed to leave the NZ First function: “He refused to do so and became hostile”.
Asked during cross-examination, in a question that appeared to be tongue-in-cheek, if she thought Reed “was weaponed-up somehow”, Howard replied: “It’s possible. Political violence happens around the world we are in and we have to be careful.”
“I did not know this man from a bar of soap. He could have a significant mental health problem,” she told the panel.
When Reed entered the room, he began taking photographs, Howard said.
“Don’t touch me or you will be sued for a lot of money,” Reed is heard telling a Northern Club staff member in the video played to the panel.
”Will you tell Winston from me please that I’m upset about being a New Zealand First supporter. I’m on the mailing list," Reed continued.
He is seen dropping his phone before being escorted from the room.
“Can you be quiet,” Reed tells the staff member.
“I’m not disturbing anyone.
“I didn’t say a word. Not a word. I just stood there.
“I was just interested in seeing what was happening,” Reed said in the video.
Howard told the panel she was close enough to Reed that their shoes were touching as she attempted to direct him from the room.
“He had advanced on me to enter a private function. I had Cabinet ministers [in the room] and a man who was acting unstable,” Howard claimed.
“It was conduct I would not have expected to see inside a venue like the Northern Club. This is not Denny’s.”
Aitken’s lawyer, David Jones, KC, accused Howard of inaccuracies and inconsistencies between a written account she gave of the incident to the Northern Club days after the event, and her formal brief of evidence.
Jones claimed some of Howard’s evidence was “rubbish” and “a fiction”.
“Ms Howard, you are just creating a different version, aren’t you?” he asked.
Howard admitted there were “errors” in her earlier account but maintained she was telling the truth.
Jones then asked whether Howard wanted to “increase focus” on the judge so NZ First could “leverage” the incident.
“We get no leverage from this,” she replied.
Lane Nichols is Auckland desk editor for the New Zealand Herald with more than 20 years’ experience in the industry.