By Linny Folau

Hon. Mr Justice Cooper has again rejected an application by 'Etuatu Lavulavu, who was seeking to remove the judge from his trial.

“I find that it would be wrong in law to recuse myself and reject the application," the judge said in a May 11 ruling that set out the reasons. “...the evidence suggests that Mr. Lavulavu's four complaints are without any foundation and the evidence during the trial amply demonstrates that."

Mr Justice Cooper said after his first ruling on the defendant’s application, that there was no case to answer, he received correspondence from Mr. Lavulavu dated May 10, seeking for the judge to be recused and the proceedings stopped.

Mr Lavulavu also sought for another judge to be assigned the case immediately in this application, he said.

The trial continues at the Nuku'alofa Supreme Court, against 'Etuate and wife 'Akosita Lavulavu, a current Cabinet Minister. They are jointly charged with three counts of obtaining over $500,000 pa'anga by false pretences from Government (Ministry of Education) for the ‘Unuaki ‘o Tonga Royal Institute, which they operated.

Lavulavu's complaints

'Etuate Lavulavu, who is representing himself, submitted four points, that he stated undermined the fairness of the proceedings:

1. That the judge did not accept there is any direct legislation that covers exactly how payment of fees should be administered for TVET institutions.

Hon Mr Justice Cooper said that is common ground, as he understood it.

“I received evidence of what the custom in Tonga has been, pursuant to section 5 (b) Evidence Act. That evidence has come from a number of sources; principally Moses 'Eloni who worked in (Ministry of Education) MET and stated that cash payments for school fees was the only system he had encountered anywhere in Tonga and had been the case.”

There was also evidence from Claude Tupou
 who said that for over a century this payment of fees, only by cash, had taken place and nothing else in Tonga.

2. That the judge did not accept that the Tonga National Qualification and Accreditation Act gives the Board authority to asses and approve fees.

“The Act does give the board those powers; the definition of board, means the Tonga National Qualifications and Accreditation Board, it has nothing to do with the power of a college to set fees. That is under the control of MET, which is the evidence given by Mr. Claude Tupou,” he said.

3. That the judge did not accept the witness "provided in the court room, which is contrary to the written witness statements, so again, another example of selective noting...".

“This point is slightly harder for me to grasp. But as far as I can understand it relates to a complaint that I prefer some witness's evidence over others. That is the trial process, an assessment of who and what is credible and what is not. That is how I approach every trial and all judges and juries likewise."

4. That the judge ruled out...the witness statements of those that supported them (the defendants).

He said the only evidence he had ruled inadmissible was a letter in the name of the first defendant, Mrs 'Akosita Lavulavu, and supporting documents addressed to Tonga Development Bank dated September 16, 2014.

“This document stated that the TVET grant that UTRI had been awarded was for $1,200 per student when, in fact, at that time it was known to both defendants to be $600,” he said.

"But, because I heard no evidence that this document was what caused the Tonga Development Bank to then loan Mrs Lavulavu $186,507.71, nine weeks later on November 18 that year, I decided that its prejudicial effect outweighed its probative value and so I ruled out that evidence."

Unfounded complaints

The judge then clarified the criteria that a court must address in considering this application and its authority, including that a judge should not decide a case on purely personal considerations.

“In addition, there should not reasonably be room for perception that the judge will decide the case on anything but the evidence in front of him or he; a judge must be in a position to consider all potentially relevant arguments and there may conceivably be a series of events or rulings, which reasonably warrant an inference, that the challenged judge's perception 
is warped in some way,” he said.

"In this case I have no personal considerations. I have been in Tonga for only a few weeks, having arrived from the London 10,000 miles away and have no view on either defendant one way or another."

“Futhermore, I am deciding the case wholly on the evidence and no extraneous factor has influenced me nor could be said to, nor could reasonably be suggested to appear that way,” he said.

"At all times I have remained able to consider all potential conflicting arguments. Because Mr Lavulavu has chosen to represent himself, of my own volition, I paused at the conclusion of prosecution case to 
invite the submissions of no case to answer, as a matter of fairness to the second defendant and the court transcript will bear this out."

Adjournments

The judge said, time was also been allowed throughout the trial process to ensure that Mr Lavulavu was fully prepared, with adjournments sometimes of several days for that purpose.

“The ruling on the
 admissibility of the material referred to above was of my own motion and did not 
come about out of any application, and there may be series of rulings that would give the impression my perception was warped, but that could not possibly be so,” he said.

"In considering the complaints, the guiding law and the structured and careful approach any judge must take in considering an application of this kind, I conclude that the evidence suggests that Mr. Lavulavu's four complaints are without any foundation and the evidence during the trial amply demonstrates that."

“That set aside, there has been nothing in my conduct of the case or approach to the evidence or dealing with the parties to trigger any proper founded concern so as to raise any single of those four grounds as a potential cause for concern, let alone a real complaint,” he said.

"Accordingly, I find that it would be wrong in law to recuse myself and reject the application."

'Akosita Lavulavu is represented by William Edwards

The prosecutors are James Lutui, the Director of Public Prosecutions, and Tevita 'Aho, for the Crown.