By Catherine Hutton, Open Justice reporter of 
Auckland District Court Judge Ema Aitken and her partner, Dr David Galler. Photo: NZ Herald
A District Court judge accused of interrupting a New Zealand First function at an exclusive Auckland club says she mouthed an inaudible comment after hearing a snippet of a speech about the teaching of tikanga at law school.
But Judge Ema Aitken says that when she did so, she didn't recognise NZ First leader and Deputy Prime Minister Winston Peters' voice as he was addressing party faithful. And she didn't know it was a political function, despite a banner at the door.
Judge Aitken is facing a judicial review at the High Court at Wellington following January's recommendation by the Judicial Conduct Commissioner that a Judicial Conduct Panel be established to inquire into, and report on, the judge's conduct that day.
A Judicial Conduct Panel investigates allegations of misconduct against judges, potentially leading to their removal from office.
Judge Aitken argues the commissioner was wrong to refer her to an independent panel, without providing adequate reasons why the panel was needed and after failing to specify the scope of the panel's inquiry.
Two functions at the Northern Club
There were two functions at the Northern Club on 22 November 22. One was for judges to mark Judge Aitken's resignation of her warrant and the retirement of two District Court judges. The other was a NZ First fundraiser.
NZ First's account - which was included in a report prepared by the Northern Club - is that as the NZ First leader spoke, Judge Aitken tried to enter the room and shouted, "He's lying! How can you let him say that?"
It's contended that the judge continued to shout and make a scene, saying there was a roomful of judges next door who would be interested in these comments.
But Judge Aitken has a different recollection.
In a letter to the Judicial Commissioner, which has been provided to NZME, the judge gave her account of what happened that night, saying while she was returning from the toilet, she took a wrong turn and inadvertently walked past the NZ First function.
While passing the room, she heard a snippet of a speech from a male speaker saying something along the lines of, "They're now teaching in law school that tikanga Māori law overrides the Westminster system".
She said she was surprised and taken aback as she wasn't expecting to hear the word tikanga at what she assumed was a social function.
"The statement was incorrect to me and mischaracterised the important role of tikanga for lawyers and judges in the District Court processes," she said in her statement.
As she walked past, she said, she mouthed to a woman seated at a table near the door, who looked familiar, "that's not true". She said that would have been inaudible. She later recognised the woman as NZ First MP Casey Costello.
She said she made a comment disagreeing with speaker, reportedly, "He's lying, how can you let him say that?"
The judge said no one at the table with Costello, which she estimated included at least six others, turned and responded to her comment. She denied shouting and said she was speaking in a normal voice.
The judge said she was quickly approached by a man and a woman, who walked her back down to her function, which was in the room next door.
Judge Aitken said as she was being guided back she commented there was a room full of judges who might have a different view to what the speaker was saying.
She said that was only to illustrate that there was a group of informed members of the community who might hold a differing view from the one expressed by the speaker.
She said it was only at this point that she looked back and realised the speaker was Peters and the woman she'd seen sitting at the table was Costello.
"I didn't know who the speaker was, but I did believe the speaker's comments went a step too far," she said.
She also denied entering the room, saying she made the comment in the foyer as she walked past.
"It did not occur to me at the time that my comments or actions might have crossed the line between the Executive and the Judiciary. The situation was entirely unexpected and perplexing, but at the same time I did not see it as anything more than that.
"Had I believed that further steps were necessary, I would have taken them; however, I did not perceive this to be the case at this time," she said in her statement.
Media reports of the night have suggested Judge Aitken's comments and the actions of her partner, intensive care specialist Dr David Galler, and a senior lawyer, Michael Reed, KC, were part of a "rolling fracas".
Galler is alleged to have yelled at Peters and cornered Costello about the repealing of the smoke-free legislation. Meanwhile, Reed is accused of filming on his phone, which was against the rules. Galler has since apologised for his actions.
But the judge's statement makes clear her interactions were completely separate from those of her partner and Reed.
She said it was some time later that her partner had left the room and he didn't mention his interaction with Peters or Costello until a few days later, when contacted by a colleague.
She also said she had "no idea" what went on regarding Reed, other than what had been reported in the media.
Judge Aitken said the event didn't reach the magnitude as described by NZ First.
The apology
Judge Aitken has publicly apologised for her behaviour, which she accepted was rude and inappropriate.
But her lawyer, Paul Rishworth, KC, said that apology was referring to the judge's own actions and words, not the NZ First allegations, which she was unaware of at the time. It wasn't acceptance of the NZ First account or media reports, he said.
He said NZ First's account didn't include any allegations of political assertion, or if it did, it wasn't explained. When any political aspect was removed, the only thing left was a rude intrusion into a dinner.
Rishworth said the commissioner should have gone back to NZ First with the judge's comments, before deciding next steps. And in failing to do so, he said, they hadn't followed the correct process.
If the commissioner had gone back to NZ First, it would have given NZ First an opportunity to change its mind or its views, Rishworth said.
Deborah Manning, who is also representing the judge, said it wasn't clear what issues the panel would consider and what it wouldn't.
"What we're trying to convey is that the commissioner failed in his process and the process matters," she said.
Rather than referring the matter to a panel, Rishworth said, possible steps included sending the matter back to the commissioner or referring it to the Head of Bench.
The hearing before Justice Andru Isac is expected to finish Tuesday.
* This story originally appeared in the New Zealand Herald.
