A sitting judge accused of misbehaving at a NZ First fundraising event has been cross-examined by a special counsel about her alcohol consumption that night, with accusations she was “disinhibited” by champagne.
District Court Judge Ema Aitken is giving evidence on the sixth day of a Judicial Conduct Panel hearing that is considering the future of her career.
It relates to an incident on November 22, 2024 at the exclusive Northern Club in which the judge has admitted calling then Deputy Prime Minister Winston Peters a “liar”.
This morning, the judge was quizzed by special counsel Tim Stephens, KC, about 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 being 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 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 Winston 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 New Zealand 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 a 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 New Zealand 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.