Neil Sands
The High Court has dismissed District Court judge Ema Aitken’s application for judicial review of a recommendation to appoint a panel to investigate allegations that she disrupted a function at Auckland’s Northern Club last year involving Deputy Prime Minister Winston Peters.
Justice Andru Isac rejected all the grounds put forward by Aitken’s legal team, which argued that Judicial Conduct Commissioner (JCC) Alan Ritchie erred in recommending an independent panel should probe events at the exclusive club last November.
“The application for judicial review is dismissed,” Isac said in a 43-page judgment released on Wednesday, which followed a two-day hearing in Wellington last month.
The court heard allegations that Aitken, who was attending a dinner at the club, interrupted a New Zealand First function where Peters was the keynote speaker and loudly accused him of lying.
According to complaints made to the JCC, she made a scene while attempting to enter the function and made remarks perceived as “threatening and aggressive” while being escorted back to her table.
Aitken, who issued an apology in the wake of the incident, has rejected that characterisation of her behaviour.
Her legal team has acknowledged her behaviour was “rude” but denied she knowingly disrupted a political event.
In a letter to the JCC, Aitken denied raising her voice and said at the time she viewed the episode as “momentary and accidental”.
Andru’s task was not to determine whether the JCC’s recommendation should stand, nor to decide the facts of the case.
A judicial panel is recommended only if the commissioner thinks the complaint is serious enough to warrant consideration of the judge’s removal.
Aitken’s legal team, led by barrister Paul Rishworth KC, said Ritchie’s recommendation contained four errors.
Rishworth argued Ritchie did not set out the legal standard against which he measured the judge’s alleged conduct; he did not provide sufficient reasons for his decision; he made the decision based on a preliminary inquiry that was insufficient; and he did not identify the conduct that was in scope for the panel’s investigation.
Isac rejected this reasoning, saying, “Although the reasons for the commissioner’s decision are briefly stated, I am unable to accept the judge’s criticisms of their sufficiency.”
Ritchie’s recommendation to appoint a panel goes to the Attorney-General to decide if it should proceed.
Attorney-General Judith Collins KC, who has publicly labelled Aitken’s actions “clearly a political statement” and “entirely inappropriate”, has stepped aside as minister responsible for appointing a panel to avoid any perception of bias.
Instead, Justice Minister Paul Goldsmith will take on the role of acting Attorney-General and decide on what steps to take.
If a panel is appointed, it will have three members, two of whom will be serving or retired judicial officers, or a senior legal practitioner. A retired judge or a serving judge must be its chair.
A spokesman for Goldsmith said no decision had yet been made on whether to appoint a panel.
Read the decision here
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