Source: Radio New Zealand
Judge Ema Aitken allegedly shouted NZ First leader Winston Peters was lying. RNZ Insight/Dan Cook
A judge accused of disrupting a New Zealand First event has had her bid for legal clarity rejected.
District Court Judge Ema Aitken was accused of disrupting a function at the exclusive Northern Club in Auckland last November, allegedly shouting leader Winston Peters was lying.
She argued she didn’t shout, she didn’t recognise Mr Peters’ voice when she responded to remarks she overheard and she didn’t know it was a political event.
A judicial conduct panel – made up of retired Court of Appeal Judge Brendan Brown KC (chair), sitting Court of Appeal Judge Justice Jillian Mallon and former Governor-General Sir Jerry Mateparae – will review Judge Aitken’s conduct at a hearing next year.
This week, at a preliminary hearing in Wellington, Judge Aitken’s lawyer, David Jones KC, sought to clarify the legal test for judicial misconduct justifying removal from the bench.
“You have to have something to aim at, you have to have something to establish,” he said. “Here we have the difference – for example – between misconduct and misbehaviour, and we have to know how egregious that has to be, in order for the contemplation of removal to be considered.”
Special counsel Jonathan Orpin-Dowell, one of two lawyers presenting allegations of misconduct to the panel, replied that parliament didn’t intend to set a threshold for misbehaviour.
In a decision released this week, panel chair Brown KC said he wouldn’t decide on a legal test before the hearing, when each case depended on its own facts.
“In the circumstances where we have not read any briefs of evidence, we are currently operating in a factual vacuum,” he said. “In any event, we cannot make findings of facts, until we have heard the evidence [including cross-examination] at the hearing.”
There wasn’t any prejudice against Judge Aitken by not ruling on a legal test, as she has the statement of allegations made against her, Brown KC said.
Judge Aitken’s lawyers sought clarity over the word “heckled” in the allegations made against her, saying the Oxford Dictionary‘s meaning of “interrupting a public speaker with derisive or aggressive comments” wasn’t appropriate for the circumstances.
The request was declined by the panel, who agreed with the opposing lawyers that the word would be considered in the hearing.
Jones KC also sought to clarify the level of knowledge or intention which would need to be established at the hearing.
The Special Counsel said the allegations against the Judge were that she “either knew, or in the alternative, ought to have known she was commenting on politically contentious matters” when she spoke at the event.
Jones KC argued the hearing would need to establish Judge Aitken knew of the political context when she spoke at the event – not what she, as a judge, ought to have known.
He questioned whether the lawyers were making an allegation of dishonesty against the judge in their case against her, but the special counsel submissions were that there was no specific allegation of dishonesty against the judge.
The panel said the question of what the judge knew would be considered in the hearing and it wouldn’t make a ruling on it in advance.
The judicial conduct panel will consider Judge Aitken’s behaviour at a hearing in February.
It will determine facts and write a report to the g-eneral, including whether the removal of the judge is justified.
Sign up for Ngā Pitopito Kōrero, a daily newsletter curated by our editors and delivered straight to your inbox every weekday.
– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand
