The panel’s decision will help inform whether Aitken remains on the bench
A judicial conduct panel led by former Court of Appeal judge Brendan Brown KC has commenced a two-week hearing examining the conduct of District Court judge Ema Aitken following a November 2024 incident at a New Zealand First function, reported the NZ Herald.
Brown, who is joined by sitting Court of Appeal judge Justice Jillian Mallon and former governor-general Sir Jerry Mateparae, will help determine whether or not Aitken should remain on the bench. The proceedings began yesterday morning 9 February, with special counsel Tim Stephens KC presenting his opening submissions.
Stephens said the hearing marked the first time a judicial panel process reached a substantive hearing in New Zealand. He said in a statement to the panel published by the Herald that removing a judge from office involved “exceptional measures” and “a high threshold”, but that a judge could be removed on the grounds of misbehaviour or ability.
He that the process would uphold the justice system’s “integrity and impartiality” and maintain public confidence, noting that it would not result in automatic removal.
The incident that landed Aitken before the panel took place at the Northern Club in Auckland on 22 November 2024. While attending a judges’ function at the club, she reportedly disrupted a New Zealand First fundraiser in the same venue while NZ First leader Winston Peters was speaking. Aitken’s husband, doctor David Galler, also reportedly got involved by confronting NZ First MP Casey Costello about the repeal of the smoke-free legislation.
NZ First claimed that she tried to enter the NZ First function and shouted; Aitken said she had responded to Peters’ speech in a normal voice and that her comment had been made in the club’s foyer as she was passing by the function. She acknowledged that her behaviour had been rude and inappropriate and issued a public apology, as did Galler.
The panel indicated that it would be visiting the Northern Club to understand the venue’s layout, given that it was central to witness evidence. Legal counsel would join the visit.
David Jones KC, who is representing Aitken, suggested that Aitken should accompany the panel, but Brown rebuffed him, saying it would not be appropriate since she was the subject of the panel’s inquiry. If Aitken sought to re-familiarise herself with the venue, she ought to do so separately.
Jones also accused Stephens of inadequate proper disclosure and claimed that Stephens was acting as a prosecutor, with Aitken feeling like a defendant. Jones sought access to all documents detailing the accounts of the five witnesses of the incident, even if Stephens deemed them subject to “litigation privilege”, per a statement published by the Herald. Jones said the documents needed to be released in the interest of natural justice and fair trial rights.
After the hearing, the panel will submit a report on the case facts and make its recommendation to acting attorney-general Paul Goldsmith as to whether or not Aitken’s removal as judge would be justified. Goldsmith will then issue the final decision in this regard.
