Ema Aitken and Winston Peters were involved in a fracas at Auckland's Northern Club in Auckland in December. Photos/ Mark Mitchell, supplied
Ema Aitken and Winston Peters were involved in a fracas at Auckland's Northern Club in Auckland in December. Photos/ Mark Mitchell, supplied
A district court judge has been under scrutiny since disputed reports surfaced following a row at the Northern Club last December.
The Judicial Conduct Commissioner recommended that a panel look into the incident involving Judge Ema Aitken.
Judge Aitken sought, and has now failed, to obtain a High Court review of that recommendation.
A judge has failed to block a recommendation that a panel investigate her conduct after she got into a fracas involving NZ First leader Winston Peters.
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 district court judge continued to shout and make a scene, saying there was a roomful of judges next door who would be interested in Peters’ comments.
Judge Aitken’s version of events says she mouthed an inaudible comment after hearing a snippet of a speech about the teaching of tikanga at law school.
Judge Aitken said that she did not recognise the Deputy Prime Minister’s voice as he was addressing party faithful. And she didn’t know it was a political function, despite a banner at the door.
The judge said her actions had been the subject of “inaccurate reporting” and she did not accept the version of events in a report prepared for the club.
However, complaints were made about her actions to the Judicial Conduct Commissioner.
The commissioner recommended to the Attorney-General that a Judicial Conduct Panel be appointed to look into the incident.
A Judicial Conduct Panel investigates allegations of misconduct against judges, potentially leading to their removal from office.
Judge Aitken filed proceedings in the High Court seeking a judicial review of the commissioner’s decision.
The decision of High Court Justice Andru Isac was released on Wednesday, dismissing Judge Aitken’s application.
The High Court had been asked to look into Judge Aitken’s assertion that there were four errors in the commissioner’s decision.
One was that the commissioner failed to state the legal standard against which her conduct would be measured.
She said that the commissioner had failed to provide sufficient reasons for his decision, and it was not based on a sufficient enquiry into what had happened.
She also said that the commissioner had failed to identify precisely what conduct was in scope for a panel to consider.
Justice Isac found that none of the supposed errors were made out.
The High Court decision related only to reviewing the commissioner’s decision.
It does not automatically follow that a panel will now be appointed, which is a matter for the Acting Attorney-General, Paul Goldsmith, to decide.
In a letter to the Judicial Commissioner, the judge earlier 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 Ema Aitken and her partner, Dr David Galler. Photo / Supplied
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 Dr David 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 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.
Ric Stevens spent many years working for the former New Zealand Press Association news agency, including as a political reporter at Parliament, before holding senior positions at various daily newspapers. He joined NZME’s Open Justice team in 2022 and is based in Hawke’s Bay.
