District Court Judge Ema Aitken at the Judicial Conduct Panel on Monday.
Photo: Finn Blackwell / RNZ
A district court judge has told a judicial conduct panel she was her normal self and not affected by alcohol, as she fights an accusation she disrupted a New Zealand First event.
Judge Ema Aitken is before the panel accused of yelling at Winston Peters during an event at Auckland’s Northern Club in November 2024, saying he was lying. She argues she did not yell, did not recognise Peters, and did not know it was a political event.
The panel continued to hear from Aitken on Monday, resuming her evidence from last week.
She told the panel about a statement released in the wake of the alleged disruption. It had been drafted as a response from Chief District Court Judge Heemi Taumaunu, who had emailed the judge for her input.
She was called by Taumaunu while drafting her response, and told him – and media advisors listening in – that she wanted the statement to include that she did not know who the speaker was or that it was a political event, when she made her remarks.
“The verbal response to me in that call was along the lines of, ‘No, we don’t want to put that in the statement, it’s just buying a fight with New Zealand First,'” Aitken said.
“It was explained that the point of the statement from the chief district court judge was to try and shut the whole thing down in the press.”
Aitken said by 18 December 2024, she had not sought or received legal advice.
“I genuinely did not appreciate the seriousness of the situation, in that it was being advanced as inappropriate conduct by a sitting district court judge which was intentionally and politically motivated,” she said.
Her lawyer, David Jones KC, had asked Aitken about a letter from the attorney-general to the chief justice, claiming she had called out Peters by name during the alleged disruption. That was something Aitken denied.
“I never referred to him by name,” she said. “I didn’t know who he was when I made my comments.”
The panel heard late last week from other district court judges who had been sitting at Aitken’s table during a function at the Northern Club that night. The NZ First event was happening in a separate part of the club.
Judges and others from the table had been called at the request of special counsel, but Jones asked Aitken if she had any issue with them coming to give evidence.
“If I had asked them to come along and give evidence, I have no doubt at all that they would have come,” she said. “But I also appreciated that this was likely to be a very public hearing, and I did not want to put my colleagues in the position of having to give evidence.”
Aitken said she did not want to drag her colleagues into what she called “my problem”.
“This was my conduct and not theirs.”
Then Attorney-General Judith Collins.
Photo: RNZ / Samuel Rillstone
The panel was played a news clip of then Attorney-General Judith Collins reacting to the disruption.
Collins had said she was “appalled” by her behaviour, but Aitken said the attorney-general had the wrong information.
“I was shocked,” Aitken said. “The information the attorney is basing her comments on is incorrect. Disturbingly, this had been the tenor of media reports and commentary based on incorrect information.”
Aitken was cross-examined by special counsel Tim Stephens KC later on Monday morning.
He began by asking Aitken about the background of her legal career, her time working as a lawyer, and ultimately her appointment as a district court judge.
Stephens KC asked about her relationship with te ao Māori in the courts. Aitken said she kept her obligations as a judge in mind by acknowledging the crest of the New Zealand coat of arms that hung inside the courts.
“Our responsibility as Treaty partners, whether we’re pākeha or Māori, as judges is to give effect to the coat of arms, which has Māori and pākeha equally depicted in a balanced way in that coat of arms,” she said.
“So I always glance at it when I enter the court, and I do that to remind myself that I must judge without fear or favour, affection or ill will, whoever’s before the court.”
The Northern Club.
Photo: RNZ / Marika Khabazi
Stephens KC questioned the judge on what she had had to drink that night at the Northern Club. She recalled she had between one and two glasses of champagne.
It was suggested by Stephens KC she may have been “disinhibited” by the alcohol.
“You must have been affected to some extent?” he asked.
Aitken rejected that suggestion.
“I was not affected in any way that I felt or discerned at the time,” she said. “I was my normal, tired self.”
Stephens KC asked Aitken if she recalled saying Peters’ comments were lies or misinformation.
“I’ve never been able to remember the precise words that I used – I’ve maintained that from the outset because I don’t, but they would have been to that effect.”
She disputed calling the comments disgusting, saying she “did not use those words”.
“That’s just not a phrase that I would use, ‘this is disgusting’, in that context. I may have said ‘this is appalling’ – that would be the sort of phrase I might have used – but I did not use that expression.”
‘I would not lie in this court room’
In the afternoon, Stephens KC asked about what happened after the Judge made her remarks.
Judge Aitken said she looked back as she was led away from the event and through a doorway, which was when she first saw Winston Peters.
“My honest explanation has always been at whatever point I was on that return back, when I turned back I could see that it was Winston Peters, and that is the only time I saw him, that was the only time I recognised who it was.”
Tim Stephens KC asked if the Judge thought Peters was a very recognisable figure.
“Visually yes,” she said.
Judge Aitken said, however, his voice was not recognisable to her.
“I don’t listen to Mr Peters speaking very often, if at all.
“I cannot think of a single incident, perhaps the odd comment on the radio.”
The focus turned to a comment the Judge claimed to make upon arriving back at her table.
Her evidence was, upon returning, that she said something to the effect of ‘oh god, I’ve just called Winston Peters a lair’.
But Tim Stephens KC questioned why none of her other dinner guests mentioned her making that comment in their evidence.
“Each of them were asked whether you had used those words, and they did not remember you doing that,” he said.
“And each of them were asked whether you had indicated, in some way, that you had made a mistake of some sort, and none of them remember that.”
The Judge maintained she had made those comments.
“I had not recognised the voice, I did not know it was Mr Peters when I made that statement, I realised at the end, and that’s what I was exclaiming to my friends and colleagues at the table,” she said.
Tim Stephens KC moved on to a letter prepared by one of the Judges who had given evidence last week, Judge Pippa Sinclair.
In her evidence, she said the Judge realised it was Winston Peters speaking after she had recognised Casey Costello at the event.
But Judge Aitken said it was the other way around.
“She’s got it around the wrong way, that is not the order in which it happened, she’s mistaken about that,” the Judge said.
“I clicked that it was Casey Costello, once I turned back and realised that it was Winston Peters.”
Stephens KC asked if it was the case that Judge Aitken had actually heard the comments, saw and recognised Minister Costello, and then clicked that the speaker was Peters.
Judge Aitken said she “most certainly” did not accept the KC’s suggestion.
“I would not lie in this court room, and I have not lied at any point in these proceedings from the outset, from the very first conversation I had with the Chief District Court Judge.”
The hearing will continue on Tuesday.
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