By Linny Folau
A cross-appeal by former government Ministers, ‘Etuate and ‘Akosita Lavulavu, challenging a Supreme Court judge's ruling that the Audit Office did not unlawfully uplift documents from the 'Unuaki 'o Tonga Royal Institute, was dismissed by the Appeal Court last week, in the latest of a long winding legal battle, which has resulted in the constant delay of their re-trial.
The Appeal Court found that documents uplifted from or supplied by the UTRI to the Audit Office were not obtained unlawfully and are admissible if formally proved.
The couple are charged with obtaining money by false pretenses, in that they allegedly provided the Ministry of Education and Training with inflated numbers of students and as a consequence, received substantially more funding than they were entitled to on behalf of the ‘Unuaki ‘o Tonga Royal Institute.
As of background, on 10 October 2022, the Court of Appeal quashed convictions against both for obtaining money by false pretenses and ordered a re-trial. The couple who were both serving jail time, after being convicted on their first trial, were freed. The retrial was initially listed to start in May 2023, but has been constantly delayed, due to ongoing legal arguments, including this latest appeal and cross-appeal.
In the first session of this year’s Court of Appeal, Justices Randerson, Harrison and Morrison, in a 15 page judgment issued on 16 May, stated they were concerned with the appeal and cross-appeal from a ruling made by Acting Justice Langi on a voir dire, in which she ruled that an Audit Report from the Office of the Auditor-General of Tonga was inadmissible at the pending second trial of Mr and Mrs Lavulavu.
The couple have been charged with obtaining money by false pretences. They were the principals of the 'Unuaki'o-Tonga Royal Institute. The essence of the Crown case against them is that they inflated the numbers of students attending the UTRI in relevant periods thereby obtaining substantially greater grants from the Ministry of Education and Training than they were entitled to receive.
“The Prosecution has had a long and convoluted history. There have been three appeals to this Court. The details are set out in our judgment of 16 December 2024 and need not be repeated,” stated the Appeal Court.
The main focus of the objection as to admissibility was on statements and information recorded in the Report as a result of inquiries made by officials in the Audit Office, who interviewed persons named in student lists supplied by the UTRI. Those interviewed included the students listed, members of their families and, in some cases, town officers in the villages in which students listed in the UTRI records were thought to reside.
Part of the Crown case was that the Ministry policies for grant eligibility required proof tthat students had paid a fee of $100 per semester. The Report stated that the UTRI had a practice of allowing tuition fees to be met by other means such as student loans, commodity exchange, and working on a part-time basis for the UTRI in some capacity. The view of the Auditor-General was that these practices were not permitted by the relevant Ministry grant policies and Cabinet decisions.
The cross-appeal by the respondents challenged the finding in the Court, that the Audit Office did not unlawfully uplift documents from the UTRI.
“On appeal the Crown has sensibly adopted a practical approach summarised that: it no longer intends to attempt to introduce the Report itself into evidence; subject only to the exception in s.89 of the Evidence Act; it intends to lead direct evidence at trial from audit officers, students and members of UTRI staff and others covering: their knowledge of and involvement with the matters at issue that are not found to be inadmissible hearsay.
“In addition, to the examination by Audit Officers of UTRI records and their findings; and any other admissible evidence, it does not intend to lead evidence on expenditure in paragraphs 25 to 35 of the Report. Were the documents uplifted by the Audit Office from the UTRI inadmissible because they were obtained unlawfully? Mr and Mrs Lavulavu argued first that the Report should have been excluded because the audit officers had stolen documents from the UTRI.
“The judge rejected the submissions by Mr and Mrs Lavulavu on this point, and outlined the principles at common law relating to unfairly or illegally obtained evidence. However, crucially, she made the firm findings that the UTRI documents at issue had not been stolen. She had "no doubt" that the documents were taken with the approval of both Mrs Lavulavu and a senior staff member, Mele Tovi.
“The judge also added that Mr and Mrs Lavulavu were only taking issue with the taking of the documents because they were not returned and were subsequently used to conduct an investigation, whereby they were arrested and charged. She found that any inconsistencies in the evidence of the Crown witnesses were not sufficient to suggest that they were lying to the Court,” stated the Appeal Court.
“Our own review of the evidence as outlined by the Court below does not persuade us that there is any basis to depart from the judge's unequivocal factual findings on this issue and Miss Afu did not seek to argue otherwise.”
“Finally, the judge found that even if the evidence established the documents had been stolen, she would have had no hesitation in using her discretion to admit unlawfully obtained evidence. Despite the submissions of the respondents to the contrary, we agree with that finding for the reasons she gave. That conclusion was inevitable given the finding that the documents were uplifted with the agreement of Mrs Lavulavu and senior UTRI staff,” stated the Appeal Court.
“It is now accepted that the Audit Office Report is not itself admissible at the respondents' trial but material in the report that has not been found to be inadmissible hearsay may be given directly by appropriate witnesses at the respondents' trial. Depending on the context, statements and explanations made to audit officers by Mr and Mrs Lavulavu or others on their behalf are admissible if proved directly by appropriate evidence. Direct evidence of the nature and scope of the inquiries made to locate students and whether they were located in the places they were said to live may be given.”
Finally, the Appeal Court found that documents uplifted from or supplied by the UTRI to the Audit Office were not obtained unlawfully and are admissible if formally proved.
“We record that in this judgment we draw no conclusions about the validity or otherwise of the views or conclusions offered in the report or the amounts said to have been wrongly received. These are all matters for trial. We have detailed those parts of the content of the Audit Office Report that are admissible and those that are not. To that extent, the appeal is allowed in part. For the reasons given the cross-appeal is dismissed."
The date of the re-trial is to be determined.
