Source: Radio New Zealand
RNZ Insight/Dan Cook
Lawyers for a judge accused of disrupting a New Zealand First event want clarity over the legal test which will apply at her judicial conduct hearing.
A judicial conduct panel is looking into the behaviour of Acting District Court Judge Ema Aitken.
She is accused of interrupting a New Zealand First function at the exclusive Northern Club in Auckland last year in November, allegedly shouting that leader Winston Peters was lying.
Judge Aitken has argued she did not shout, that she did not recognise Peters’ voice and did not know it was a political event.
A bid she made for a judicial review of the decision to hold the Judicial Conduct Panel was dismissed in April of this year at the High Court in Auckland.
‘What is the test’
Under the District Court Act, a Governor-General can, on the advice of the Attorney-General, remove a Judge from the office on the grounds of inability or misbehaviour.
The Judicial Conduct Panel will consider Judge Aitken’s behaviour at a hearing in February next year. It will determine facts, and write a report to the Attorney-General including about whether the removal of the Judge is justified.
The panel is comprised of former Court of Appeal Judge Brendan Brown KC (who is the chair), Justice Jillian Mallon, a sitting Court of Appeal Judge, and Sir Jerry Mateparae, the former Governor-General.
David Jones KC. RNZ / Mark Papalii
In a preliminary hearing on Monday, counsel for Judge Aitken, David Jones KC, told the panel it was essential to know what the specific legal test for misbehaviour was.
“We are asking you to state the test, in advance of the hearing.
“You have to have something to aim at, you have to have something to establish.
“And here we have the difference – for example – between misconduct and misbehaviour, and we have to know how aggregious that has to be, in order for the contemplation of removal to be considered.”
Jones KC said it was essential to understand the legal test before the hearing took place, because it could affect the arguments or context the evidence is presented in at the hearing.
“You have a situation where if you have a test, and you know that you have to satisfy that test, or special counsel has to satisfy that test, then evidence can be adduced – potentially from experts to say – ‘look this is certain behaviour but it doesn’t get to this point, or it does’, or whatever.”
He said it was even more important these issues were nailed down in what he described as a “political context”, referring to how the report from the Northern Club was leaked to the media.
Jones KC said the hearing would need to establish Judge Aitken knew of the political context when she spoke – not what she, as a judge, ought to have known.
He said the political dynamic was critical to the hearing that would take place.
“If, for example, the people in the room… were a group of law students, or were from a book club, or whatever, and somebody said something as the words were spoken, and heard by the Judge, and she said something, would we be here? My submission is we wouldn’t.”
Special counsel Jonathan Orpin-Dowell, who is one of two lawyers presenting the allegations of misconduct to the panel, said the question of what the Judge knew or should have known when she spoke needed to come out in the evidence in the hearing.
He said parliament didn’t intend to set out a specific test for judicial misbehaviour.
Orpin-Dowell said the District Court Act lays out the grounds for removal as inability or misbehaviour.
He referred to Ministry of Justice advice to the 2004 select committee considering the law setting up the judicial panel, which aimed to avoid any potential misbehaviour from being excluded.
He said thresholds of misbehaviour come down to specific facts and situations.
“The panel isn’t a permanent court, or even a permanent tribunal, it’s an ad-hoc panel set up to deal with a particular reference about particular conduct, from a particular Judge, and it follows from that, that whether removal will be justified in any case is necessarily a question of fact and degree.”
Both lawyers referred to a previous case involving Justice Bill Wilson, where it found misbehaviour was conduct that “fell so far short of accepted standards of judicial behaviour as to warrant the ultimate sanction of removal”.
This is the third Judicial Conduct Panel that has been established since the law establishing the body was passed in 2004.
Elements of discussion in Monday’s preliminary hearing have been suppressed.
The panel is expected to file a decision on Monday’s application by the end of this week.
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– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand
