Court rejects separate trials for Lavulavu couple [1]
Friday, August 30, 2019 - 18:29
The Supreme Court has rejected an application by ‘Etuate Lavulavu to have a separate trial from his wife ‘Akosita Lavulavu on forgery charges.
They are charged with six counts each of knowingly dealing with forged documents and obtaining money by false pretences, relating to a number of irregularities in an audit of the ‘Unuaki ‘o Tonga Royal Institute in 2016.
Acting Chief Justice Cato in a ruling on August 29 said the Attorney General, Mrs Folaumoetu'i submitted that the prosecution case is based on a joint enterprise by Mr and Mrs Lavulavu.
“The fact was that both were senior officers of 'Unuaki 'o Tonga Royal Institute (UTRI) and at various times both allegedly gave instruction or information to staff members to further inflate applications for returns for the purpose of gaining subsidies, and at that various times had applied the money allegedly derived from the false accounting to their private bank accounts either individually or together,” said the Attorney General.
“Mr Lavulavu, on the other hand made it clear he did not accept these allegations and in his written submissions made criticisms of some of the evidence the Crown relied upon.
“I explained to Mr Lavulavu, who was unrepresented, that so far as his criticisms were of the evidence would be relevant at the trial stage, where he and his wife would be able to advance their cases before a jury, but, at this stage, I was concerned only to consider the application for severance on the evidential basis that the Crown had said its case would be advanced upon and presented,” he said.
Prejudice
The Court further heard, Mr Lavulavu essentially submitted that a joint trial would prejudice him and that he would be adversely be affected by the mere fact of their marriage relationship by evidence that was adverse to his wife and not he.
“He complained that a large number of the witnesses did not give evidence implicating him. On this aspect of the case, I am satisfied that the evidence proposed to be called by the Crown and detailed above does justify a joint trial on ordinary principles.
“Whilst some of the witnesses may not directly implicate Mr Lavulavu, as the Attorney General submitted most are relevant to understand the background of the offending and even were there to be a separate trial, the evidence would have to be adduced in any event so that the jury had acomplete understanding of the case.
In so far as there may be evidence that only implicates Mrs Lavulavu, a judicial warning to the jury concerning its relevance may be required. Much of the evidence, I am satisfied will, however, be relevant to both and particularly the indemnified accomplices and the auditor’s evidence,” he said.
Mr Lavulavu also sought a separate trial on the basis that he had a right to a speedy disposal of the case.
The judge said, the original trial had been set to start in early September but had to be vacated because there had been complications with the birth of their daughter.
A trial date has now been subsequently fixed for April 2020. A six week period for trial has been allocated because Mr Lavulavu is unrepresented, although his wife is represented by Mr Tu'utafaiva.
“Mr Lavulavu was not asked by me about any desire he might have for a separate trial at the hearing of his wife's application (she not present at the application for an extension of her bail return date, but he was present) and I did not invite him to do so in the light of the Crown's indication it did not wish to,” said the judge.
“He said delays had come about because of Mrs Lavulavu’s application for an extended stay in New Zealand and it is not the fault of the Crown that a joint trial is postponed.
“Mr Lavulavu has told me that Mrs Lavulavu is to return shortly and then intends to re-apply to return to New Zealand for health reasons. She is required under her bail variation to return on October 30.
"The fact that the joint trial has been set for early April 2020 should provide ample time for her to recover fully from any complications arising from the birth of the child. Any further period sought to reside in New Zealand and for medical reasons beyond the present will have to be substantiated by medical evidence."