He said this was an application to a single Judge of the Court of Appeal for bail, pending the hearing of the applicants' appeals against their convictions and proposed appeals against sentence.

On June 4, following a trial by judge alone between April 12 to May 21, Hon. Mr Justice Cooper found both of them guilty of three counts of obtaining a total of $558,600 by false pretences, contrary to s.164 of the Criminal Offences Act. 


The counts of offences spanned the period 2013 to 2015, during which the applicants, through 'Unuaki 'o Tonga Royal Institute (UTRI) of which they were the Director and President respectively, were found to have applied to the Ministry of Education and Training for technical vocational educational training (TVET) grants in respect of students, they claimed to have been enrolled at the Institute, he said.

In essence, the trial judge found that the numbers of students specified in the applications, and on which the quantum of the grants was based, had been falsified.

They both knew were false (and had therefore acted dishonestly) and the Ministry relied in approving and paying the grant, which the quantum of the grants was based, had been falsified.

The applicants filed their Notices of Appeal against conviction on June 30, after being convicted on June 4.

On July 2, Hon. Mr Justice Cooper sentenced them to six-years imprisonment each. 'Akosita had the final year of her sentence supended for two-years on conditions, while 'Etuate is in jail for six years.

Appeal grounds

The Lord Chief Justice said their identical Notices of Appeal consisted of some 20-pages consisting of an apparent 14 grounds.

William Edwards Jr. who acted for the applicants in this bail hearing argued grounds that warrranted their applications including that the trial judge erred by applying the law of agency.

He said, as accepted by Mr Edwards, the offences are of a very serious nature, involving some of the largest monetary amounts for offences of this kind seen in the Kingdom to date. 

Relative to the statutory maximum term of seven-years imprisonment, the sentences imposed are long. Both those matters weighed against a grant of bail. 


“The grounds of appeal overlap with the central issue on this application, namely whether the applicants have demonstrated a reasonable prospect of success on their appeal, which will be discussed in detail further below,” he said.

Reasonable prospects on appeal? 

The Lord Chief Justice said, as confirmed by Mr Edwards, the applicants relied as they must, primarily that they have a reasonable prospect of succeeding on their appeals.

In that regard, the orders sought in their respective Notices of Appeal included not only that their convictions be set aside but that the appellants also be acquitted.

"In other words, the appellants will be asking this Court to go beyond a determination as to whether the conduct of the trial resulted in a substantial miscarriage of justice or whether the verdicts are infected by errors of law or are unsafe or insupportable on the evidence, and to foreclose any possibility of a re-trial by acquittals on appeal."

He said at this stage of the analysis, the applicants bear the onus of satisfying the Court that their grounds of appeal, as articulated in the Notice of Appeal, or any of them have reasonable prospects of success. 

“Further, it must be demonstrated that any successful ground or grounds will warrant the convictions being quashed. For present purposes, I do not propose to extend that burden by requiring the applicants to also demonstrate reasonable prospects of being acquitted.

“The hearing of an application of this kind is not the occasion for any in-depth consideration of all the arguments that may be presented at the hearing of the substantive appeal,” he said.

“In addition, a 'reasonable' prospect' is one which may be regarded as rational or according to reason. Reasonable prospects of success mean a 'real chance' of that, rather than whether it is more likely than no,” he said.

Lengthy trial transcript

The judge also said the transcript of the trial was being prepared for the Court of Appeal.

“As it happened, given the estimated length of the trial, I directed the Registrar to arrange for court staff to commence work on the transcript during the running of the trial, and which the available court staff have been working on since. 

“Those staff are also responsible for the preparation of transcripts for a number of other appeals, which have been listed for hearing in the next session of the Court of Appeal, starting this September 20.

“The transcript for this matter, which is likely to run in excess of 1,000 pages, is currently expected to be completed within the next one to two-weeks. But for that direction, the transcript would likely not have been completed for several more months,” he said.

“Despite being cognisant of that deficiency bearing upon the majority of the grounds of appeal, as noted above, Mr Edwards advanced four grounds or issues, which, he submitted have reasonable prospects of success.”

Criminal Liability

The Chief Justice said that Mr Edwards' submission that the trial judge erred in applying the law of agency lies at the heart of grounds 1, 2, 6 and 7.

“However, Mr Edwards did not make any submission in relation to the authorities cited by the trial judge which illustrated the application of agency principles. Nor did he cite any authority in support of his submission that the law of agency is not applicable in fixing criminal liability in Tonga. 

“Despite its title, the operative provisions of the Civil Law Act do not limit or exclude the importation of the English common law in criminal proceedings,” he said.

“The applicants' submission on this issue (and relevant grounds of appeal) largely focussed on agency being applied by the trial judge solely by reason that the applicants were husband and wife. 

“The trial judge also applied the principles of agency on the undisputed bases that Mr Lavulavu was the founder and President of UTRI and was at all material times its "managing authority", Mrs Lavulavu was its Director, "they both ran the college" and they personally held or controlled he bank accounts into which the TVET grant funds were paid. 

“Further, Tevita 'Aho who acted for the Crown argued that on the alternative submission that even without resort to the law of agency, the ultimate findings were open to the trial judge upon his acceptance of the evidence of Ms Kivalu that both applicants instructed her to prepare the inaccurate student lists, like her evidence at trial, went unanswered,” he said.

"For those reasons, I am not satisfied that the applicants have demonstrated reasonable prospects of success on this ground of appeal."

Applicants' characterisations

The Chief Justice said that on ground 10 of their Notice of Appeal that they suffered "unfair judicial treatment", could not be properly assessed without a review of the transcript. 


“As further acknowledged by Mr Edwards during submissions, the five paragraphs set out under the heading ‘Particulars’ to paragraph 10 do not in fact provide any details of the trial judge ‘entering the fray’.

“References to the trial judge ‘entering the fray’, ‘directing questions at witnesses which ought properly have been put by the prosecution’, the trial judge's questions being ‘unfair and onerous’, and that ‘a large number of interjections made by the trial judge appeared unfriendly and unfair to the appellants and their witnesses’ are all conclusory statements,” he said.

"Without consideration of the record of what was actually said on those occasions, and the context in which it was said, it is impossible to determine whether the applicants' characterisations are fair and, if so whether as a result, their trial was 
unfair."

He said, Mr Edwards' assertion that there was no evidence adduced at trial that Mr Lavulavu had any knowledge of or participated in any way in the preparation of the inaccurate student lists which underpinned the applications for TVET grants, when refuted by Mr 'Aho was another example of an issue, the assessment of which, required the transcript or other record of the evidence given by each of the relevant witnesses during the trial. 

Mr Edwards ''no evidence" submission was also at odds with the summary of the evidence set out in the judge's reasons for verdict, and from which he sought to draw together the "strands" (as the Prosecution termed them) of the evidence he did accept in order to draw relevant inferences and arrive at the conclusion that the Prosecution had proven its case to the requisite standard.

“In addition, Mr Edwards submissions on this issue devolved into acknowledging that there was some evidence available upon which the judge could have drawn the relevant inference of knowledge, but that the judge should not have had to do so because direct evidence on the issue was available which the Prosecution did not adduce, it became apparent that this issue is in fact not about lack of evidence or even sufficiency; but rather, weight,” he said.

Mr 'Aho's submissions identifying what he dubbed as the Crown's "three big pieces of evidence at trial" were not refuted by Mr Edwards, and to be fair to him, in the absence of any transcript, it may not yet be possible to attempt to do so. 

"While, I do not regard the Crown's internal transcript as being authoritative in any way, nor was it referred to as such, it was notable that when Mr 'Aho referred to passages from it, Mr Edwards' earlier remonstrations as to the accuracy of that evidence faded."

“Accordingly, and again as this issue presently stands, I am not satisfied that there are reasonable prospects of its success on appeal,” he said.

Whether the verdict was unsafe 

At the same time, for much the same reasons, the Lord Chief Justice was not satisfied, at this time that the fourth issue or ground of appeal relied upon by Mr Edwards has reasonable prospects of success. 

Again, the parties' respective submissions conflicted at the point of an accurate record of the evidence given by the indemnified witness, Ms Kivalu. 

“Without consideration of the actual evidence she gave, it is not possible to form any reliable assessment of the applicant's complaint that the judge's finding that Ms Kivalu ‘implied’ that the purpose of the applicants' order to her was to mislead, is unsafe,” he said.

"For those reasons, I am not satisfied that the applicants' prospects of success on their appeals, as they were presented for the purposes of this application, are obvious or even reasonable." 

“The requirements of ss 48(1 )(a) and (c) are conjunctive. Not withstanding the reservations expressed in paragraph 38 above, even with a neutral assessment of the requirements in (c), the failure by the applicants to satisfy the necessary requirement of (a), leads to the conclusion that, at this time, the Court does not consider it fit to admit them to bail pending their appeal. 

“Accordingly, the applications are refused,” the Lord Chief Justice ruled.

Not dismissed

Meanwhile, to date, despite being convicted and jailed by the Supreme Court of Tonga, the Prime Minister Hon. Dr Pohiva Tu’i’onetoa has not officially dismissed his Cabinet Minister.