The trial against current Cabinet Minister ‘Akosita Lavulavu and her husband 'Etuate Lavulavu is going ahead, after a Supreme Court judge ruled there is a criminal case to answer against both of them on all three counts.

They are jointly charged with obtaining over $500,000 pa'anga by false pretences, relating to a number of irregularities in an audit at the ‘Unuaki ‘o Tonga Royal Institute.

Hon. Mr Justice Cooper made his ruling on May 10, after both defendants submitted there was no case to answer against them.

Submissions were made by William Edwards for ‘Akosita Lavulavu, and by 'Etuate Lavulavu who is representing himself on Friday, May 7.

"On the arguments, as analysed and in relation to each defendant and every count they both face, there is a case made out to the required standard, that is to say there is some evidence that a reasonable jury if they accepted it, properly directed on the law, could convict, Justice Cooper said.

The trial this week proceeds to the next stage at the Nuku'alofa Supreme Court.

The judge then analysed the arguments and listed what the prosecution had to prove.

That a defendant made a statement

He said, the prosecution case is that the forms were in the first defendant's name (Mrs Lavulavu) and she applied for all the grants, and that the second defendant (Mr Lavulavu) was working along side her and they had effectively applied together.

Therefore that she was an agent for him in their joint application for the grants.

The defendants at the time of the indictment period were the owners and ran 'Unuaki 'o Tonga (UTRI); a private education institution. They were husband and wife, who attended together events to promote the institute and encourage enrolment of prospective students.

They also held a Bank South Pacific (BSP) bank accounts in the name of UTRI, which they were both co-signatories for when opening those accounts. Two such bank accounts were opened in 2010 and 2012, in which they both controlled.

“It also of note that Mr. Lavulavu attended a meeting with Mr. Tupou and the Auditor General in 2017 in his capacity as Director of UTRI. Those meetings came about because of the concern that the Auditor General had in relation to the TVET grant paid by the Ministry of Education to UTRI.

“Therefore I have no doubt that they were both involved in the running of the school and jointly ran it ;and were in charge during the time we are concerned with,” said the judge.

“In addition, only Mrs Lavulavu's name appeared on each of the relevant TVET applications while, Mr Lavulavu's name does not have to be on any of the application forms for the prosecution to establish that the TVET grants were effectively jointly made by both defendants;

“The monies were clearly being applied for under Mr. Lavulavu's direction as the student lists and receipts were being made up under the joint direction of both defendants, as a Miss Kivalu's evidence made clear.

“Further the grants were paid into the bank accounts that were controlled by both defendants, eg 29 May 2014, $146,400 was transferred into a BSP account.”

False in some degree

The judge said, the agreed facts that relate to the list of students enrolled for the three semesters in question proves falsity of the applications as to the numbers enrolled.

In fact, by virtue of the agreed facts that all parties signed, dated 30.4.2021, it is accepted the numbers were false in relation to each claim the subject of each count of the indictment, he said.

The agreed facts are;

1. For the grant application in count 1, the 255 named were overstated by at least 29.
2. For the grant application in count 2, the 416 named were overstated by at least 55.
3. For the grant application in count 3, the 271 named were overstated by at least 42.

It is to be noted that the Crown need only demonstrate some falsity, he said.

Either defendant knew it was or may be untrue

The judge then pointed out the evidence by Miss Kivalu, who worked in the Admin department of UTRI was clear.

She stated that the number of people on the list that was submitted for the grants did not accurately reflect the number of students and that she was ordered by both Mr. and Mrs. Lavulavu to compile those lists from the names given to the recruiters.

The judge said, Miss Kivalu's evidence was from a meeting with both defendants that she was asked to attend. This was after she left UTRI and after the police investigation into the grants had started.

"She gave evidence how she was at the home of both defendants from about 11:00am to around 6:00pm one Saturday. That what she was asked to do was effectively lie to the Police Commissioner by Mr. Lavulavu and withdraw her original police statement.

In addition, Lavulavu had also seemingly typed up a statement before she got there, and handed for her to sign it. She never read it, and declined to sign it, he said.

"None of this was ever challenged on behalf of either defendant. Taking this together it follows that I can infer that both defendants knew of the falsity. It is evidence I can also consider when I later tum to the question of dishonesty."

It caused the payment from the Ministry

The judge said, it was clear that the forms were submitted to the Ministry of Education, on behalf of both defendants for the payments to be made and that is precisely what happened.

The three forms in question are the Ministry's forms for the purpose of the TVET grant.

They have a declaration of truth on them, each of which bears the name, 'Akosita Lavulavu and a signature apparently hers. The forms were filled out by UTRI staff working under the direction of Mr and Mrs Lavulavu and then attached to them were the list of names said to be students, who attended UTRI for the semester in question.

In tandem were created the receipts and the book of counterfoils to those receipts so that for each name from the lists entitled "Student Enrolment" there was a receipt counterfoil for a stated sum of cash paid to UTRI, he said.

The conduct was dishonest

On this issue, that this was a dishonest practice is implicit in the evidence of Miss Kivalu.

The judge said, dishonesty can also be inferred from these facts: that within each application there were names that could not be traced, that related to students who did not really attend or their details had been taken from other events or documents.

“This was the finding of Miss Mafi when she did her fieldwork for the Audit and is detailed in her work sheets. Dishonesty can further be inferred in that for the 2014 and 2015 applications the receipts that those in MET had been induced to rely on were stated as being for sums of money received from named individuals; despite the fact that there were 'payments in kind' allegedly being provided by those people so as to replace cash,” he said.

“In addition, across the indictment period the evidence is this is a person named on the receipts for 2013, 2014 and 2015 in some cases did not exist, if they did exist did not attend, if they did attend had not paid that amount of money at all.

"Therefore an ‘Enrolment List’ relates to the recognised practice of a named individual paying their student fees and that person attending for the semester in question; receipts that were generated for proof of student numbers and checked as part of the MET ‘count’ to substantiate the student numbers the defendants submitted for the TVET grant were false, in that no such cash had been paid."

The judge said, the prosecution then argued that because it was so obviously false, he can infer dishonesty.

"It is clear those named people were not really paying those sums of money."

The judge therefore found there is a case to answer against both defendants on all three counts.

Charges

On April 12, the trial started after both had pleaded not guilty to three joint counts of obtaining a total of over $500,000 pa'anga by false pretences, relating to irregularities in the audit at the ‘Unuaki ‘o Tonga Royal Institute.

Particulars of the offences, alleged that on May 29, 2014 the accused couple obtained $146,400 by false pretence from the Ministry of Education and Training, when they applied for funds from the Technical Vocational Educational Training Grant that there were 255 students at the institute for semester 1 of 2013.

The second alleged on November 18, 2014 that they again obtained $249,600 by false pretence in an application to the Ministry of Education's Technical Vocational Educational Training Grant, that there were 416 students at the institute for semester 2 of 2014, knowing it was false.

Similarly, on June 29 2015, the accused couple allegedly yet again got $162,600 by false pretence from the Ministry's same grant, when they applied for funds for 271 students at the institute for semester 1 of 2015.