Judge Ema Aitken is before a Judicial Conduct Panel accused of disrupting the event at Auckland’s Northern Club.
Photo: RNZ Composite
A judge accused of disrupting an NZ First event must have known who she was yelling at, a party member says.
Judge Ema Aitken is before a Judicial Conduct Panel accused of disrupting the event at Auckland’s Northern Club, yelling at party leader Winston Peters, calling him a liar, and saying comments he made were disgusting.
The judge argues she did not shout, did not recognise Peters’ voice when she responded to remarks she overheard, and did not know it was a political event.
Appearing on Thursday morning, NZ First MP Casey Costello gave evidence about the night.
She was not appearing as a government Minister, Jonathan Orpin-Dowell, who is assisting Special Counsel for the hearing, said.
Costello recalled being at her table when she heard someone yelling. She assumed they were yelling at her.
“Whatever she was saying, it was loud enough for me to hear and take notice of her,” she said.
“If it had only been in a normal speaking tone, I would not have heard the comments at that distance or taken any notice.”
NZ First MP Casey Costello.
Photo: RNZ / Samuel Rillstone
Costello said the judge must have known who she was yelling at.
“From my observation of the events, the judge must have known that it was Winston Peters who was speaking,” she said.
“Mr Peters has, I believe, a distinctive voice, and had been speaking for some time when the judge began yelling.”
She said the judge would have also been able to see Peters through the doorway when she first came down the stairs.
Costello described another incident from the evening where she encountered who she later learnt was Judge Aitken’s husband, Dr David Galler.
Costello said Galler had confronted her, blocking her way and calling her despicable.
“He said ‘you are despicable, I hope you’re ashamed of yourself, you disgust me’,” she said.
Costello could tell the man was drunk by smell and described the altercation as particularly hostile.
“I asked the man why he had that opinion of me, he replied ‘you are responsible for killing hundreds of people, you should be proud’,” she said.
Galler went on to make other comments about Costello paying dues to the tabacco industry, and said she had no medical knowledge.
Costello had faced scrutiny earlier that year for rolling back smokefree laws and giving health officials a document that claimed “nicotine is as harmful as caffeine” and argued Labour’s smokefree generation policy was “nanny state nonsense”.
She said she had made a note in her diary about the evening’s disruptions but particularly about what had happened with Dr Galler.
“As a politician, whenever I have a public interaction with someone who is difficult, I tend to take a note of the interaction at the time, so I have a record of reference should it be needed.”
Judge Aitken’s lawyer David Jones KC cross-examined Costello, questioning whether the judge had in fact directed comments to her.
Judges called as witnesses
Thursday morning began with lead panellist Brendan Brown KC issuing a minute requesting other judges give evidence before the panel.
It comes after Special Counsel for the Inquiry requested the panel ask other District Court judges to give evidence.
KC requested District Court judges David McNaughton and Pippa Sinclair to appear and give evidence.
Those called had been among the people sitting at Judge Aitken’s table at a function of District Court judges that had brought her to the Northern Club that night.
Special Counsel Tim Stephens KC had told the panel earlier in the week some of the Judges and their partners who sat at Judge Aitken’s table may have relevant evidence to give.
Brown KC also indicated he would also call Judge Sinclair’s partner to give evidence, as well as the partner of another judge present.
What happened in the judge’s own words
The details of what happened on that night had been canvassed by witness evidence since Wednesday.
But on Thursday afternoon, the panel heard accused judge’s own account of what happened.
Judge Aitken told the panel she was at the Northern Club for a function of District Court Judges after a challenging day at court when she overheard comments about Tikanga Māori law overriding the Westminster system being taught in law schools.
She mouthed words to someone looking at her from inside the room where the event was taking place.
It was only later she realised that woman was Costello.
“I made an audible remark once I reached the bottom of the stairs where I paused briefly,” she said.
“I can’t remember the precise words that I used but they were to the effect of ‘this is misinformation,’ or ‘what he’s saying is incorrect,’ or ‘that’s a lie,’.”
Judge Aitken said she had always told the truth about what happened.
“I have been completely truthful and open in all conversations about this incident, and I have not, and I would not lie, nor would I provide any written material containing lies.”
The judge acknowledged her comments were out of character and rude.
“I cannot really explain why I responded like this, other than that I was tired, and the speaker’s statement was so palpably wrong,” she said.
“It was reactionary, and rude of me which is not consistent with my character or reputation, I am not normally rude or intrusive in any setting.”
She said at no stage in the evening was she intoxicated or affected by alcohol.
Judge Aitken told the panel if she had known details of the event prior to what happened, things would have been different.
“If I had any knowledge or inkling Winston Peters was the speaker, that the woman looking at me was minister Costello, or that it was a political event, I would not have said anything,” she said.
The judge went on to talk about chief District Court Judge Heemi Taumaunu alerting her the situation could escalate to the Judicial Conduct Commissioner.
“I clearly remember saying ‘bring it on.’ I knew I had not done or said anything to breach comity, and I believed such an investigation would reach the same conclusion.”
Comity is the principle that requires the separate branches of government to act with mutual restraint and respect toward each other.
Judge Aitken spoke about the apology she wrote to the Northern Club and NZ First.
“I was initially reluctant to apologise for a situation which now seemed to be classifying my behaviour as political when I knew it wasn’t,” she said.
“I also held concerns that because I was a judge, I was somehow being held responsible for the conduct of others that night, namely David [Galler] and Michael Reed KC.”
Reed KC had been filmed on the night trying to photograph inside of the NZ First event, despite being told not to.
“I did not want the judiciary to be negatively impacted by my conduct in anyway, or make the lives of the Chief Justice or the Chief District Court Judge difficult,” Judge Aitken said.
“I definitely felt under pressure to apologise, but I was prepared to do so because I had been rude.”
The judge said she decided to apologise on the basis it would make clear she was unaware of the speaker and Costello, or that it was a political event when she made her remarks.
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