By Linny Folau

Jailed former Cabinet Ministers ‘Etuate Lavulavu and his wife ‘Akosita, were freed by the Appeal Court today, when their criminal convictions were quashed, in a successful appeal that found their trial was unfair.

However, the Appeal Court was satisfied there was sufficient evidence to support convictions and remitted their cases for a retrial at the Nuku'alofa Supreme Court.

The judgment was delivered this morning by the President of the Tonga Court of Appeal, Lord Chief Justice Whitten, after the third Court of Appeal Session for the year.

The couple had been serving prison sentences, after they were convicted by Hon. Justice Cooper in June 2021 on three joint charges of obtaining money by false pretenses relating to a number of irregularities in an audit at the ‘Unuaki ‘o Tonga Royal Institute (UTRI), which they operated. The Crown's case is that grants were accordingly overpaid by a total of $553,800 pa'anga.

On 2 July, 2021 both were sentenced to six-years imprisonment each, with‘Akosita having the last 12-months of her sentence suspended for two-years on conditions.

Both appealed against their convictions and sentences, resulting in this judgment.

The Appeal Court found there were irregularities in the trial and that there was apparent bias on the part of the judge and that the trial was unfair.

“The verdicts cannot stand.”

“We are satisfied, however, that there was sufficient evidence to support convictions on a correct application of relevant legal principles. A retrial must accordingly follow.

“The appeal succeeds. The convictions are quashed. The matter is remitted to the Supreme Court for retrial.”

The 25-page written judgment by Appeal judges, Hon Justices Hansen, De Jersey, Harrison and Heath was released, after the oral delivery.

Appeals against conviction

In four categories the appellants submitted:

• the judge erred in his analysis of the elements of the offence.
• the judge erred in holding that the principles of agency could be invoked for the purpose of proving the offences.
• the judge erred in finding there was evidence sufficient to establish guilt.
• the judge was biased and/or the conduct of the trial was unfair.

They stated that the starting point for a consideration of the elements of an offence is Section 164 of the Criminal Offences Act which provides: ‘Every person who by any false pretense obtains for himself or for any other person any money, valuable security or other thing whatever shall be liable to the same punishment as if he had committed theft.’

The false pretense alleged in the indictment is the number of students represented to have attended UTRI for each of the semesters. The amount of the grant is what is alleged to have been obtained. The indictment does not identify who obtained the money.

The judgment stated that the judge correctly identified the need for the Crown to prove that a representation had been made that was false to the knowledge of the representor and that, as a result of the representation, a benefit in the form of the grants was obtained.

"Where we part company from the judge on this issue, is in his requiring, in addition, that the conduct was dishonest. We agree with the appellants that there is no need to add a further generalized requirement of dishonesty. Knowledge of the falsity of the representation, of course, imports dishonesty. However, in our view there is a further element of the offence that the Crown must prove.

“The judge erred in omitting this element of the offence from his analysis and substituting a generalized requirement for dishonesty. This ground of appeal accordingly succeeds."

Agency 

“In this issue, the judge invoked the principles of agency in order to establish that Mr Lavulavu had made the representations by finding that Mrs Lavulavu had acted as his agent, and, in effect, made the representation on his behalf as well as in her own right. He also relied on agency to establish that the Lavulavu's were guilty of count 3 as he made no finding that it was signed by Mrs Lavulavu.

“In Tonga, the basis on which such secondary liability may arise is spelt out in section 8 of the Criminal Offences Act. By reference to section 8, the question would relevantly be whether Mr Lavulavu encouraged or procured the commission of the offences or did any act for the purpose of facilitating the commission of the offences.

"While Mr Lutui stoutly maintained that agency principles could properly be invoked in a case such as this, no authority was cited to us in support. The rules of agency with their particular requirements relating to knowledge and authority have no place in a case such as this. We see no reason why the evidence should not be analysed in the usual way by considering whether the elements of the offence have been established, if necessary by reference to the statutory provisions for establishing guilt as a party."

Insufficient evidence

Both appellants then submitted that there was no false representation by either appellant or, if there was, they had no knowledge of its falsity, They submitted that the evidence was deficient or the judge erred in finding otherwise.

This ground of appeal failed.

"The judge accepted the evidence of Mrs Tovi and Ms Kivalu as he was entitled to do. It provided a solid basis of conviction on all counts. This ground of appeal must according fail."

Unfair conduct 

“Both appellants then contended that the trial was unfair and complained of excessive judicial interventions and conduct by the judge which conveyed a pre-determined and adverse view of their case. Their concerns were voiced at trial, culminating in an application to the judge to recuse himself. He declined to do so.”

The Appeal judges in their assessment had due regard to the exigencies of the case and the judge's responsibility to ensure that the trial proceeded expeditiously.

“In our view, these aspects of his role justified the judge's intervention on the agency issue.

“If a judge has formed a view on a legal issue, it is perfectly proper for him or her to inform counsel although, we would add, normally not as a concluded position, but as a prelude to argument on the issue if the Judge's view is not shared by counsel. As a general rule, a final position on a legal issue should not be taken without full opportunity for input from counsel. On the other hand, a judge must take care when articulating a view on the evidence, fair trial and that a fair minded observer would agree with them, they stated.

"It is instructive to reflect that the unfortunate consequences of this aspect of the trial would not have arisen if the Judge had confined himself to his proper role. Had the prosecution wished to pursue the issue, it could have done so in an open and aboveboard way. Witnesses could have been called and recalled as appropriate and the evidence addressed in submissions. What happened here is a case study in what can go wrong when a Judge strays beyond the bounds of his or her proper role.

“Cumulatively, the irregularities we have referred to resulted in a trial that went badly awry. In what we assume to have been a well-intentioned attempt to expedite the trial, the judge persistently and, in some cases, egregiously exceeded his proper function. It was understandable that the appellants should feel the judge was not acting impartially and inevitable that a fair minded observer would share that view.

“There is accordingly ample evidence to support findings of apparent bias on the part of the judge and that the trial was unfair. The verdicts cannot stand. For the reasons already covered, we are satisfied, however, that there was sufficient evidence to support convictions on a correct application of relevant legal principles. A retrial must accordingly follow."

“The appeal succeeded. The convictions are quashed. The matter is remitted to the Supreme Court for retrial, ruled the Appeal Court.”.

Counsel  for the appellants were Alyssa Kafoa and Ane Tavo-Mailangi.

Crown Counsel were Semisi Lutui and 'Elisiva Lui.