Neil Sands
Three of Ema Aitken’s fellow District Court judges on Friday gave their accounts of the Northern Club dinner that led to misconduct allegations, with one saying the accused judge was “fairly matter-of-fact” when she declared: “I’ve just told Winston Peters he’s lying.”
Judges Pippa Sinclair and David McNaughton both took the stand to recount the events of November 2024, while the Judicial Conduct Panel heard a written statement from Judge Allison Sinclair, who was also at the dinner on 22 November 2024.
“It’s not a comfortable place for a judge to be, but it’s ok,” McNaughton said as he left the witness box after giving evidence to the panel, which has been tasked with advising the Attorney-General on whether Aitken should be removed from the bench.
All three judges emphatically stated that Aitken was not affected by alcohol on the evening in question, when she is accused of heckling and attempting to gate-crash a New Zealand First fundraiser featuring Peters, the-then Deputy Prime Minister.
“It was a social occasion, at which Judge Aitken was her normal social self. I can categorically state that Judge Aitken was not intoxicated or acting inappropriately at the function in any way,” Judge Allison Sinclair’s written submission said.
Judge David McNaughton
The judges also said they did not see any signage that indicated an NZ First function was taking place at the Northern Club on the same night they had booked a pre-Christmas dinner to mark the retirement of some of those involved, including Aitken.All three provided glowing assessments of Aitken’s character and her abilities as a judge.
“I think she’s one of the best judges on our bench,” McNaughton said. “Her judgments are sound, they’re well reasoned, her reserved [written] judgments are usually immaculate, and I always thought she would make an excellent judge of the High Court. In some ways, she was too good to be a District Court judge.”
‘Don’t go there’
Pippa Sinclair read from a letter which detailed her recollection of events. It was prepared in the weeks after the dinner at Aitken’s request, when it became apparent the Judicial Conduct Commission could become involved.
Judge Pippa Sinclair
“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,” the letter says.
“Judge Aitken then said she realised it was Mr Peters when she saw a person whom she recognised and then – and I quote – ‘clicked’ was [NZ First MP and Associate Health Minister] Casey Costello.
“I recall Judge Aitken telling [her partner Dr] Dave Galler – and I quote – ‘do not go there’ when he intimated he wanted to go into the function.”
The panel heard evidence from Costello on Thursday that Galler later confronted her in a “particularly hostile” exchange, accusing her of “killing hundreds of people” through the government’s policies on smoking.
Pippa Sinclair told the panel that she worked through six versions of her letter with Aitken’s then-lawyer Deborah Manning.
When Aitken’s lead counsel David Jones KC produced an earlier draft in which she mentioned Aitken talking about recognising Costello, but not Peters, Pippa Sinclair said the final version was the most accurate representation of her recollection.
“I can’t know when Judge Aitken realised it was Mr Peters. That’s obviously for her and for the panel to determine,” she said.
Asked about Aitken’s manner when she returned to the dinner table after the incident, Pippa Sinclair said she was “fairly matter-of-fact”.
McNaughton said: “There was no suggestion in her demeanour or manner of an angry outburst, or making a scene, or shouting. She appeared to me to be quite calm.
“When David Galler said he wanted to go into the next room and continue the point, she told him clearly to leave it.”
‘Unfortunate event’
The question of when Aitken realised that Peters was the speaker is likely to be crucial to the panel’s deliberations, as a judge knowingly disrupting a political event could be seen as a breach of comity that might warrant removal from the bench.
Aitken says she did not know the function she passed when returning to her table from the restroom was an NZ First political event.
McNaughton said he had never seen Aitken act in a way that could be seen as a breach of comity. He expanded on his understanding of the concept at the request of the panel.
“We [judges] don’t expect politicians to criticise our judgments and, in turn, we don’t criticise politicians or express our own view on political matters in a public setting,” he replied.
Mark Sinclair, the husband of Allison Sinclair, also attended the dinner and told the panel he had prepared a letter detailing his account of the night.
Mark Sinclair
He became emotional talking about his friendship with Aitken and Galler, detailing their achievements and describing them as “exceptional people”.
“I think they have done more than their fair share… for both their profession[s] and New Zealand as a nation,” he said.
“I can only say that …. 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.”
Asked if there was anything he wanted to add to his account of the night at the Northern Club, he replied: “Look, it was an unfortunate event.”
The panel (pictured) comprises comprises retired Court of Appeal judge Brendan Brown KC, former Governor-General Sir Jerry Mateparae and Justice Jillian Mallon of the Court of Appeal.
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