“Oh dear.”
That’s how one of New Zealand’s top legal officials reacted to news a District Court judge had allegedly interrupted NZ First leader Winston Peters’ speech during an end-of-year bash at Auckland’s exclusive Northern Club.
Solicitor General Una Jagose messaged Secretary for Justice Andrew Kibblewhite on December 11, weeks after the speech, asking him if he’d heard about the brouhaha.
“Also have you heard about the fracas at the northern club between DCJs [District Court Judges] and NZ First Christmas parties?” Jagose wrote.
“Oh dear. No [wide-eyed emoji] ... did comity not prevail?” Kibblewhite replied.
“I’ll catch you up,” Jagose said. “Perhaps tomorrow or Friday? CJ [Chief Justice] and CDCJ [Chief District Court Judge] trying to manage it. But DPM [Deputy Prime Minister Winston Peters] very upset.”
“As soon as you can please [gritted-teeth emoji],” Kibblewhite said.
The text messages were released to the Herald last night under the Official Information Act.
The “fracas”, which took place in November, allegedly involved the District Court Judge Ema Aitken yelling at Peters while her husband, celebrity doctor David Galler, allegedly cornered party MP Casey Costello and berated her.
Attorney-General Judith Collins recommended the Judicial Conduct Commissioner inquire into Aitken’s conduct. Aitken has challenged that decision in a judicial review that went to the High Court last month. She is awaiting the outcome of that review.
There were two functions at the Northern Club on November 22.
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, which has been 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.
“Had I believed that further steps were necessary, I would have taken them; however, I did not perceive this to be the case at this time,” she said in her statement.
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. Meanwhile, Reed is accused of filming on his phone, which was against the rules. Galler has since apologised for his actions.
But the judge’s statement makes clear her interactions were completely separate from those of her partner and Reed.
She said it was some time later that her partner had left the room and he didn’t mention his interaction with Peters or Costello until a few days later, when contacted by a colleague.
She also said she had “no idea” what went on regarding Reed, other than what had been reported in the media.
Judge Aitken said the event didn’t reach the magnitude as described by NZ First.
Judge Aitken has publicly apologised for her behaviour, which she accepted was rude and inappropriate.
But her lawyer, Paul Rishworth, KC, said last month that apology was referring to the judge’s own actions and words, not the NZ First allegations, which she was unaware of at the time.
It wasn’t acceptance of the NZ First account or media reports, he said. He said NZ First’s account didn’t include any allegations of political assertion, or if it did, it wasn’t explained. When any political aspect was removed, the only thing left was a rude intrusion into a dinner.
When the allegations came to light in December, Chief District Court Judge Heemi Taumaunu apologised on behalf of the court and said he had spoken to Judge Aitken about the incident.
“[Judge Aitken] accepts that her behaviour on this occasion was inappropriate and rude and has subsequently apologised to New Zealand First and to the Northern Club,” Judge Taumaunu said in a statement provided to the Herald.
“Although I have not received any complaints, I have taken the proactive and unusual step of apologising unreservedly to New Zealand First on behalf of the District Court of New Zealand.
“I have also made it clear to Judge Aitken that this was a regrettable, unfortunate, and unacceptable series of events which she accepts.”
Former Act president's lawyer claims sentence was too harsh, calls for home detention.