District Court Judge Ema Aitken (centre) at the Judicial Conduct Panel on Monday.
Photo: Finn Blackwell / RNZ
A district court judge described as one of the best on the bench, has had her behaviour scrutinised by a Judicial Conduct Panel this week.
Judge Ema Aitken is before the panel accused of yelling at Winston Peters during an event at Auckland’s Northern Club in 2024, calling him a liar.
She argues she did not yell, did not recognise Peters, and did not know it was a political event.
The panel hearing, which began earlier this, heard from district court judges on Friday who were there on the night of the alleged disruption.
They had been called after Special Counsel for the Inquiry requested the panel ask them to appear and give evidence.
Judge David McNaughton was among those sat at Judge Aitken’s table during a dinner of other judges and their partners.
He told the panel no one at the table was drinking to excess that night, with the “possible exception” of lawyer Michael Reed, KC.
Reed had been captured on video trying to photograph inside the NZ First event, despite being told not to.
Judge McNaughton read from his letter prepared for the Judicial Conduct Commissioner, but noted some of the words were not his.
“It’s not phrased exactly as I originally had,” he said.
“Some of this phrasing is not mine.”
He said there had been a panic to have the letter sent to the commissioner by deadline, and he signed it on a busy working day.
“It was emailed to me, it was a working day, I was very busy, I quickly read it, and signed it, and emailed it straight back because it had to go, I think, that day or the next day.”
Judge McNaughton had high praise to give Judge Aitken before the panel.
“I think she is one of the best judges on our bench,” he said.
“Her judgements are sound, they’re well reasoned, her reserve judgements are usually immaculate, of a very high standard.”
The judge would make an excellent High Court judge, Judge McNaughton said.
“In some ways, she was too good to be a district court judge, that’s my personal view of her.”
But by her own admission the day prior, the judge said she had acted rudely.
“I cannot really explain why I responded like this, other than that I was tired, and the speaker’s statement was so palpably wrong,” Judge Aitken 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.”
Another member of the bench, Judge Pippa Sinclair told the panel she had also been at a table with Judge Aitken, while the NZ First event was taking place in another part of building.
She recalled Judge Aitken coming back to the table at one point in the night, telling her she had called out Winston Peters.
“Sometime around the main course being served, Judge Aitken came back to the table and said ‘I’ve just told Winston Peters’, and I quote ‘he’s lying,’ and I further quote, ‘how could he say that,’ in response to him discussing tikanga in the law schools,” she said.
“Judge Aitken then said she realised it was Mr Peters when she saw a person whom she recognised and then, and I quote ‘clicked,’ it was Casey Costello.”
Judge Aitken told the panel on Thursday she had been at the club 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, who she later realised was NZ First MP Casey Costello.
“I made an audible remark once I reached the bottom of the stairs where I paused briefly,” Judge Aitken said.
Judge Sinclair told the panel she had not seen any signage for the NZ First event on her way in or out of the club that night.
The panel had been told on Thursday by NZ First Party president Julian Paul there had been a roughly two-metre tall banner by the door to their event.
Judge Sinclair was pressed on details about the night.
She said it was difficult to remember, given how much time had passed.
Under cross examination from the judge’s lawyer David Jones, KC, Judge Sinclair said she could be sure about the sequence of events, but not about what exactly was said.
“Of course I can’t be exactly sure down to the minutiae of what she said, because it was over a month after the incident, and I was recalling that, and I didn’t record the incident,” Judge Sinclair said.
“I’ve done the best to recall what I remember she said.”
Jones asked Judge Sinclair to share what she thought of the judge’s work.
“She is a very sound, and fine judge,” she said.
“I have the utmost respect for her ability as a judge and work as a judge.”
Judge Sinclair was asked by panel member Justice Jillian Mallon how loud Judge Aitken had been speaking when she returned to the table.
“She spoke clearly, she wasn’t shouting or anything like that,” Judge Sinclair said.
“She just spoke very clearly and matter of factly.”
The panel next heard from Judge Sinclair’s partner Trevor Haysom, who had also been at the judge’s table that night.
He was asked by special counsel if the judge had made any indication her comments had been an error or mistake.
“It wasn’t apparent to me at the time,” Haysom said.
“She made the statement but there was no significance in it, at that stage of the dinner anyway.”
The husband of another judge present that evening, Mark Sinclair, made glowing remarks about Judge Aitken and her husband Dr David Galler.
Sinclair said he had been made aware earlier that evening an NZ First event was also being held that night, saying he was surprised the party was holding a fundraiser at the Northern Club.
He described Judge Aitken as a useful mentor for his wife, Judge Allison Sinclair, who had been appointed after Judge Aitken.
Sinclair also spoke about the judge’s work establishing the Alcohol and Other Drug Treatment Court as well as her and her husband’s time working in Samoa.
“I hope when all this is over, I wish them all the best, and that their good work is not forgotten, because of the accusations that have been made as part of this process.”
The inquiry continues next week.
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