No jury trial for Lavulavu election petition [1]
Tuesday, April 28, 2015 - 22:04
A trial to hear an election petition filed against Hon ‘Etuate Lavulavu for alleged illegal practices will be heard by a Supreme Court judge without a jury in Vava’u on July 13-31, 2015.
The petition was filed by Viliami Uasike Latu and ‘Aisea Silivenusi against the respondent Lavulavu, the Minister of Infrastructure and Vava’u No.16 People’s Representative to Parliament.
Chief Justice Hon. Paulsen on April 20 made a ruling regarding procedural issues that included whether Lavulavu has the right to elect trial by jury; whether the election petition should be heard in Tongatapu or Vava’u; if he is entitled to elect jury trial; and whether the jury should be empanelled from Tongatapu or Vava’u.
The respondent had elected for a trial by a judge and jury in Vava'u.
However, the Chief Justice ruled the trial of the petition will be heard by a judge of the Supreme Court sitting without a jury in Vava’u.
He said Clive Edwards, acting for the petitioners, had submitted that the respondent had no right to elect trial by jury, and the court had an absolute discretion as to where the trial would be held. He argued that it was in the interest of justice that the trial be held in Tongatapu and not Vava’u.
The reasons by the petitioners for seeking a trial in Tongatapu rather than Vava’u related to the risk of witness intimidation, that in the climate of present public opinion it would not be possible to empanel an impartial jury and that the trial could more readily be held in Tongatapu as the court was not constrained to conduct hearings only during period that is on the circuit.
"None of these grounds persuaded me that I should order that the petition be heard at Tongatapu. There is no evidence before me of any witness intimidation. The case is already set down for hearing and there will be no need to empanel a jury," said the Chief Justice.
At the same time, Lavulavu’s counsel had told the court he would call about 58 witnesses, most whom will come from Vava’u.
"I consider that it will pose an unfair logistical and economic burden upon the respondent to require him to defend the petition in Tongatapu. The trial of the petition will be held at Vava’u but with this qualification; should there be any witness intimidation or the number of witnesses the respondent will call be found to be substantially fewer than the 58 he presently estimates, then the petitioners may apply to review this application."
Alleged bribery
The Chief Justice said the petitioners have filed the election petition under the Electoral Act 1989 seeking a declaration that the respondent’s election as the People’s Representative for the Vava’u 16 Electoral District in the General Election on November 27, 2014 is void.
"The petition filed on December 15, 2014 alleges that he offered bribes by way of payments of money and valuable of gifts in connection with his election. It also alleges that the total amount spent by him in his election campaign exceeded the limit of $10,000 by a considerable margin. The petitioners said he spent more than $123,000 in relation to his campaign."
Lavulavu represented by 'Ofa Pouono, had filed his defence denying the illegal practices or excessive spending and sought the dismissal of the petition and costs.
On March 13 this year, Lavulavu had also applied for security for costs which was dismissed by the Chief Justice.