Neil Sands
Embattled District Court Judge Ema Aitken wants to summons her boss – Chief District Court Judge Heemi Taumaunu – to appear as a witness at a disciplinary hearing that will determine her future on the bench, official documents reveal.
Aitken’s bid – believed to be unprecedented – to bring Taumaunu before the Judicial Conduct Panel is contained in a minute the panel published this week outlining procedural matters ahead the hearing, scheduled for two weeks in February.
The minute says Aitken’s counsel have indicated they will apply for direction from the panel on issuing summons to witnesses and sets a January 23 deadline for filing.
“That request applies to both the summons to the Ministry of Justice employee referred to in the memorandum of 12 December and to the summons to the Chief District Court Judge referred to in the memorandum on 18 December,” it says.
Aitken’s willingness to put the chief judge in the witness box shows her determination to clear her name.
The Judicial Conduct Panel hearing in February will examine her conduct at the Northern Club in November 2024, when she allegedly disrupted a function involving New Zealand First leader Winston Peters.
Aitken has admitted making comments that were “rude, uncalled for, and inappropriate”, but strongly denies claims that she gate-crashed the event and loudly heckled Peters before being escorted away.
‘Regrettable, unfortunate and unacceptable’
According to the Justice Ministry website, the panel has the same powers as a commission of inquiry, meaning it can compel witnesses to give evidence.
Whether it can do that to Taumaunu is another question. A constitutional expert told LawNews that a judge would normally have immunity from summons over an issue that relates to carrying out his or her judicial duties, but this may not apply to the chief judge’s administrative duties as head of bench.
The expert likened the situation to the Waitangi Tribunal’s attempt to summons the Minister for Children Karen Chhour in 2024.
The Court of Appeal backed the tribunal, but the matter was eventually rendered moot when the legislation at the heart of the dispute was introduced to Parliament, taking it beyond the tribunal’s jurisdiction and meaning Chhour was never forced to appear.
The chief judge’s office declined to respond to when asked if he would accept or oppose a summons from the panel.
Chief District Court Judge Heemi Taumaunu
After the Northern Club incident became public in December 2024, Taumaunu issued a media statement saying he had taken “the proactive and unusual step” of apologising to NZ First on the court’s behalf.
“I have also made it clear to Judge Aitken that this was a regrettable, unfortunate and unacceptable series of events which she accepts,” the statement said, adding that Aitken had made her own apology to NZ First and the Northern Club.
However, in submissions made when Aitken unsuccessfully challenged the panel’s establishment in the High Court last year, she noted that her apology was made before she was aware of all the allegations that were being made against her.
Aitken also said that before Taumaunu’s statement was issued, she had discussions with the chief judge and his media advisor about whether to mention that she had no prior knowledge the event was a NZ First function attended by Peters.
While Aitken “very strongly” felt this should be part of the statement, she said: “We spoke for some time. It was decided this clarification would not be included and I accepted this decision.”
Political statement or private spat?
No judge has ever been removed from the bench as a result of a Judicial Conduct Panel investigation.
The panel – comprising retired Court of Appeal Judge Brendan Brown KC, former Governor-General Sir Jerry Mateparae and Justice Jillian Mallon from the Court of Appeal – will hold a two-week hearing in Auckland, opening on February 9.
Judge Ema Aitken
It will decide whether Aitken’s conduct on the night in question warrants her removal from the bench.
At an interlocutory hearing in November, Aitken unsuccessfully asked the panel to define the level of misconduct that justifies defrocking a judge.
The issue of when Aitken became aware that the function was a political event involving Peters, who was deputy prime minister at the time, will be central to February’s hearing.
In the High Court submission last year, counsel assisting Tim Stephens KC said there was NZ First signage outside the function, which would make it a clearly marked political event.
He said she loudly accused Peters of lying, “shouting and making a scene while attempting to enter the function”.
Stephens said that, if proved, Aitken’s conduct raised issues of her independence and of comity between the judiciary and executive.
Aitken’s lawyers said at November’s hearing that she did not recognise Peters at the Northern Club and therefore did not know she was interrupting the then Deputy Prime Minister. Her comments were a spontaneous, informal exchange made in a private capacity, they said, rather than being a political intervention.
Her lawyers also argued her conduct could not amount to a constitutional breach if she was unaware of the speaker’s identity or the political nature of the event.
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