A judge fighting for her career after being accused of disrupting a New Zealand First function in Auckland has hit back at suggestions she has not told the truth, telling special counsel, “I would not lie”.
Under cross-examination today at a Judicial Conduct Panel hearing, Judge Ema Aitken accepted party leader Winston Peters is visually very recognisable but said she seldom listens to him speak and his voice is “not one that I recognise”.
The hearing relates to events on November 22, 2024 where the judge admits calling Peters a liar after overhearing comments about tikanga being taught in law schools.
She accepts her behaviour that night was rude and out of character, but says she did not realise it was the country’s then Deputy Prime Minister when she made the comments, or that it was a political event.
The panel is investigating her conduct and will form an opinion about whether her actions justify consideration of removal from office.
Special counsel Tim Stephens, KC questioned the judge about whether she genuinely had not recognised Peters, which she says only happened when she looked over her shoulder as she was led away from the function room by two party officials.
“You know obviously who Winston Peters is?” Stephens asked. “Would you agree that he is very recognisable?”
The judge said “visually, yes”.
Stephens then asked, “Would you agree he’s got a very distinctive voice?”.
“Not one that I recognise,” the judge replied.
“I don’t listen to Mr Peters speak often. To me his voice is not distinctive. I did not recognise his voice in the snippet I heard.”
Judge Aitken recalled being led away by two women after the altercation. She said each had a hand on her shoulders.
“I was a bit surprised. It wasn’t aggressive laying on of hands and shoving down the corridor. They put their hands on my shoulders, I turned and we walked.”
Stephens questioned the judge about a letter of support written by Judge Pippa Sinclair which had a different sequence of events to that given by Judge Aitken.
Judge Aitken has said she saw a woman who she recognised but could not place, and only realised it was NZ First MP Casey Costello after she realised the speaker was Winston Peters.
However, Judge Sinclair’s letter said the opposite, that after realising it was Costello, Judge Aitken “clicked” that the speaker was Peters.
Judge Aitken said Judge Sinclair had got things “around the wrong way”.
It also emerged that Judge Aitken’s then lawyer had made six different drafts of Judge Sinclair’s letter, which was prepared as part of material going before the Judicial Conduct Commissioner (JCC). Ultimately, the letter was not included in that correspondence.
Stephens asked why it was not included, and if that was because the apparent discrepancy was “unhelpful” to Judge Aitken’s case.
“I’ve got nothing to hide here Mr Stephens,” she replied. “I did not draft those statements.
“I have never tried to hide any evidence from anyone in these proceedings.”
Judge Aitken said she had been happy for Judge Sinclair’s letter to be included in the material sent to the JCC but was advised against doing so by her then lawyer on the basis it contained direct quotes about what she had allegedly said that night which could be “relied on” by Peters if he took defamation action.
She reiterated she had always acted honestly when challenged by the special counsel.
“I would not lie in this courtroom and have not lied at any point in these proceedings.”
The judge will continue being cross-examined tomorrow morning before the first defence witnesses are called.
Earlier, the sitting judge was cross-examined by Stephens about her alcohol consumption that night, with accusations she was “disinhibited” by champagne.
Stephens asked how much she’d had to drink.
Judge Aitken said her husband, celebrity doctor David Galler, ordered a bottle of champagne and she had consumed between one and two glasses before visiting the bathroom.
In response to questions by Stephens, it emerged this had occurred during an estimated period of between 30 and 45 minutes.
“None of the people at your table were intoxicated?” Stephens asked the judge.
“No, I wasn’t intoxicated,” she replied.
“You must have been disinhibited by the champagne,” the special counsel suggested.
“You must have been affected to some extent.”
“I don’t accept I was disinhibited or affected by alcohol in the way you are suggesting,” Judge Aitken replied.
“What I mean is not intoxicated, not drunk,” Stephens continued."
“I know what disinhibited means,” the judge responded.
“I was not disinhibited that night. What I recall is being unaffected by alcohol and very tired.”
Stephens then asked the judge about her time on the bench overseeing drink-driving cases, and whether she knew the recommended number of standard drinks for women.
“You’d have to remind me,” the judge said, adding that she wasn’t driving that night.
She and Galler had taken an Uber.
Stephens explained the recommended amount was two standard drinks over two hours.
Today’s exchange follows video shown to the panel last week of Michael Reed, KC, involved in an interaction with NZ First secretary Holly Howard and a Northern Club staff member in which he warned them not to touch him, “or you will be sued for a lot of money”.
In his evidence on Friday, Judge David McNaughton, who was dining with Judge Aitken that night in another Northern Club function room, read a letter of support he had penned for Judge Aitken in which he wrote, “No one at our table was drinking excessively, with the possible exception of Mr Reed, KC”.
Moving on from the alcohol issue, Stephens then asked the judge about the three minutes she had spent in the bathroom immediately before the NZ First function incident occurred.
“I went to the bathroom, I used the toilet. I would have put some lipstick on,” the judge said.
As she left the bathroom and descended the stairs, she said she noticed a woman she recognised staring intensely at her from inside the function room.
After hearing a speaker commenting about tikanga being taught in law schools, the judge said she smiled at the woman and mouthed the words, “That’s not true”.
She later learned that the woman was NZ First minister Casey Costello and that the speaker had been Peters.
Stephens asked the judge if she had done anything to cause Costello to look in her direction.
The judge replied she had done “nothing”.
“I don’t know why she was staring at me.”
“You didn’t call out loudly or yell at the top of the stairs,” Stephens asked.
The judge said she had not.
The judge was also asked about evidence she gave about suffering a fall in Samoa and how it meant she was now very cautious on stairs.
Stephens said the evidence wasn’t “superfluous”.
“The reason why it’s in your evidence is to provide one factor about why you didn’t see the NZ First sign,” he suggested.
“It’s my evidence because that’s what happened,” she replied.
Earlier, Judge Aitken described the lead-up to a press statement that was issued about the incident by her boss, Chief District Court Judge Heemi Taumaunu.
She told the hearing she was contacted on December 17, 2024, asking for her views on a statement Taumaunu wanted to release after a media storm had erupted.
Judge Aitken said she wanted the statement to include her position that when she made the comments about Peters’ tikanga speech, she did not know he was the speaker.
She said she also wanted the statement to specify that she hadn’t known it was an NZ First event.
She said she received a call from Judge Taumaunu and two media representatives – one from Judge Taumaunu’s office and the other from that of the Chief Justice.
“I was told there was an urgent need to get a statement to the press.”
She said she repeatedly asked for the statement to include her explanations for her behaviour that night.
“No, we don’t want to put that in the statement,” Judge Aitken recalled being told during the phone call.
“It’s just buying a fight with NZ First.”
She said she was told the purpose of the statement was to “shut down” the matter in the press.
“The suggestion was that I had somehow waded into the political fray.”
She said she was also told her conduct could potentially “muddy the waters” in terms of the relationship between the bench and NZ First.
She was disappointed her requested amendments to the statement were not included before it was published.
She said the matter had quickly “escalated”.
This included “intentional political motivation being illegitimately implied to my conduct”.
The hearing was shown a television news article in which Attorney-General Judith Collins said she was disappointed by the conduct that had been reported.
“I was really appalled by that behaviour,” Collins told reporters. “It is not what I expect from members of the judiciary.”
She added they were “clearly inebriated or they were just arrogant and offensive”.
Asked today about those comments, Judge Aitken said she had been “shocked”.
“The information the Attorney was basing her comments on was incorrect.”
She said she also began to hear “rumours” that Peters was considering taking defamation proceedings against her, at which point she was advised to seek legal representation, which she did.
She admitted being somewhat naïve about the incident’s fallout, saying she did not initially appreciate the seriousness of the situation.
The hearing continues.
Lane Nichols is Auckland desk editor for the New Zealand Herald with more than 20 years’ experience in the industry.