Neil Sands
The case against District Court Judge Ema Aitken has been politicised and “blown out of all proportion”, but she remains an exemplary judge who should not be removed from the bench, her lead counsel said on Tuesday.
David Jones KC
Barrister David Jones KC told a Judicial Conduct Panel into Aitken’s behaviour at the Northern Club in November 2024 that it would be “absurd” to consider her unfit for office over “a 30-second situation on a Friday night”.
Aitken is accused of interrupting a New Zealand First fundraiser and heckling a speech by Winston Peters, although she denies acting aggressively and says she did not initially recognise the speaker was NZ First leader Peters, the-then Deputy Prime Minister.
Jones told the three-person panel, which is sitting for two weeks in Auckland before making a recommendation on Aitken’s future, that it must consider the judge’s exemplary record, rather than simply focus on “a blip”.
“It makes no sense, that such a good judge can be called into question and be unfit because of this conduct,” he said.
“The overall conduct of the judge in terms of her abilities and good character [must] be taken into account… and if something is seen as an aberration, a blip on the radar, then that is something which obviously can [also] be taken into account in terms of the panel’s findings.”
This is the first time a Judicial Conduct Panel has held a substantive hearing in New Zealand, and it is likely to set a precedent for the standard of conduct required of judges, even when outside the courtroom.
Jones said the crucial question for the panel was whether Aitken was fit for office, arguing that the allegations against her had no bearing on her ability to do her job.
“One has to stand back and say, ‘how on earth could this have made her unfit? Because it’s got nothing to do with her being a judge. It’s got nothing to do with the judicial function.”
‘Persecuting one of their own’
Aitken was attending a dinner at the Northern Club on the night in question and has always insisted she did not know the function being held elsewhere at the venue was a political event.
Jones said that was why she was determined to contest the allegations.
“It would have been the simplest thing in the world for her to have said, ‘OK, I’ll resign. I’ll leave’,” he said. “She’s at the end of her tenure, she’s a temporary judge. That was a retirement dinner for her.
Tim Stephens KC
“So why is she staying? Why is she fighting this? Because she is a judge of principle and she is a judge of integrity and she is not going to resign over something that she did not do. That is the reason that we are here.”
When special counsel Tim Stephens KC outlined the difficulties he had encountered in trying to gather evidence from Aitken’s dining companions, including fellow judges, Jones said it was not because of any request by his client.
“I suspect that they don’t want to cooperate with special counsel, where they don’t, because of his role, because they see him as persecuting one of their own. Now that’s entirely up to them,” he said.
‘Loaded gun’
Jones said Judge Aitken’s actions on the night in question had been subjected to “a retrospective political overlay”, magnified by media reporting of other unrelated incidents on the night involving her partner David Galler and barrister Michael Reed KC.
He said this meant the panel would be handing Acting Attorney-General Paul Goldsmith a “loaded gun” if it recommended that he consider her removal.
One of the complainants to the Judicial Condict Commission was a senior official with NZ First and another was Attorney-General Judith Collins KC, whose National Party is a coalition partner with NZ First.
Collins stood aside after lodging the complaint to avoid any perception of bias, making Goldsmith Acting Attorney-General on the case.
Goldsmith will ultimately decide Aitken’s fate as he will receive the panel’s recommendation and must decide what action will follow.
But Jones said Goldsmith was also a politician.
“This is a politicised situation, not of the judges making but of others,” he said. “And what you have is a situation where, in the current climate, it’s an election year [and] coalition issues are obviously going to be concerning some people.
“The [Acting] Attorney-General [Goldsmith], if he gets the loaded gun from the panel [a recommendation to remove], what considerations will come into play there?”
‘Liar’ heckle
Stephens outlined the allegations against Aitken, detailing a verbal altercation that he said erupted when she was returning to her table from the restroom and overheard a speaker [Peters] saying that law schools were now teaching that tikanga overrides the Westminster system.
“The allegations that I present are that while the Deputy Prime Minister was speaking, Judge Aiken interrupted the New Zealand First dinner by heckling the Deputy Prime Minister, accusing him of lying and being a liar, and saying that the Deputy Prime Minister’s comments were disgusting,” he said.
“Then, on being asked to leave and being ushered away, [she said] to those ushering her away, ‘there’s a room full of judges next door who would be interested in what the Deputy Prime Minister said’.”
Stephens said Aitken’s conduct was “intemperate, rude and brought the judiciary into conflict with the executive”.
He said this would warrant consideration of Aitken’s removal even if she was unaware that the event was a political function.
Stephens said there was a convention that judges refrain from commenting on government policy or controversial political matters unless it related to a case before them, and even then, comment should be made in a “dignified and cautious manner”.
“As part of the maintenance of judicial independence, judges are required to abstain from entering the political fray,” he said.
“Further, it’s important that judges do not misuse the status and authority of the judicial office.”
The hearing adjourned early so the three-person panel could make a site visit to the Northern Club and familiarise themselves with the venue where the incident took place.
Panel chair Brendan Brown KC said the venue would be set up the same way it was on the evening of 22 November 2024.
The panel is expected to deliver a recommendation on Aitken’s future to the Acting Attorney-General by Easter.
“I suspect that they don’t want to cooperate with special counsel, where they don’t, because of his role, because they see him as persecuting one of their own. Now that’s entirely up to them,” he [Mr Jones KC] said.
It seems extraordinary that other Judges who attended the “function” should choose not co-operate with the special counsel for the Judicial Conduct Panel. One might ask why ? Of course, speculation is a dangerous thing, but did they have nothing to say that might assist Judge Aitken ? Do the Judges have an omerta code ? If the report is correct the decision of those other Judges seems to be contrary to their oath of office and the rule of law.