By Linny Folau

‘Etuate Lavulavu who had his appeal dismissed by the Court of Appeal today in Nuku’alofa will stand a re-trial with his wife ‘Akosita this month, at the Supreme Court.

Justices Randerson, Harrison and Dalton in 17-pages judgment on 5 October, rejected Lavulavu’s appeal. He had applied to have the charges against him dismissed on grounds of abuse of process.

This was after a hearing on 29 September, with the appellant appearing for himself, counsel for ‘Akosita present as observers, with the Director of Public Prosecutions, James Lutui

Case 

The appellant Mr Lavulavu and others funded a private education institute in Tonga in 2003. He was its president and, Mrs Lavulavu was its director.

In the years 2013, 2014 and 2015 the Institute obtained grants from the Ministry of Education and Training. The grants were later audited by the Office of the Auditor-General and some irregularities were found. It was recommended that $553,800 be reimbursed to the Ministry and that the case be referred to the police or possible further investigation.

In March 2018, Mr and Mrs Lavulavu were charged with three counts of obtaining money by false pretences. They were convicted of those charges after a trial before Justice Cooper. In July 2021, they were each sentenced to six-years imprisonment with the final year of Mrs Lavulavu’s sentence suspended for two-years on conditions. They remained in custody until bail was granted in September 2022.

Mr and Mrs Lavulavu successfully appealed against their convictions. On l 0 October 2022 this Court allowed their appeals, quashed their convictions and ordered a retrial.

The focus of the appeals related to the mens rea elements required to prove the charges and issues about the correct legal basis for party liability in the case of Mr Lavulavu.

In November 2022 former Lord Chief Justice Whitten KC ruled on certain interlocutory applications by Mr Lavulavu and set a trial date, for 8 May 2023 if the Director of Public Prosecutions wished to proceed with the retrial. Shortly before the trial date the DPP filed an amended indictment, which, amongst other things, invoked s8 of the Criminal Offences Act against Mr Lavulavu alleging that he was guilty as a party rather than as a principal offender. Mr Lavulavu then applied to have the charges against him dismissed on the grounds of abuse of process.

In consequence, the proposed trial date was vacated. On 19 May 2023, Lord Chief Justice Whitten dismissed Mr Lavulavu's application. He has been granted leave to appeal. Mrs Lavulavu did not appeal but was permitted to appear as an observer through counsel.

If a new trial is to be held it is scheduled to proceed before a judge sitting alone, starting on 16 October.

Grounds of appeal

The judges stated that numerous grounds of appeal were relied by Mr Lavulavu, (a) Was it an abuse of process to amend the indictment in the form in which it now stands? (b) Are there any other grounds amounting to an abuse of process?

Mr Lavulavu submitted there was no power to amend the indictment on the retrial directed by this Court. He had relied at an earlier stage in the Court below on clause 12 of the Constitution which provides Accused cannot be tried twice

The judges stated that Lord Chief Justice Whitten had already dealt with this point in a ruling made on 24 November 2022. He found that the effect of the order of the Court of Appeal quashing the verdicts was that there was no verdict in respect of the indictment presented upon which the original trial proceeded. He considered that the legal definition of the word "quash" was to make void or annul. It followed that there was no risk of double jeopardy to which clause 12 is directed.

“Although, Mr Lavulavu acknowledged he had not appealed this point he nevertheless advanced this submission before us. It is as well that we deal with the point in case it should arise again. We agree with the conclusion reached by the Lord Chief Justice, Clause 12 of the Constitution is directed to the common law doctrines of autrefois and autrefois acquit, in that they are to be treated as if they have been neither previously convicted nor acquitted of the index offending,” they stated.

“As Lord Chief Justice Whitten observed in the judgment under appeal, the Court of Appeal Act and its Rules are silent on the issue of amendment before a new trial or retrial. Nor, it appears, are there any other statutes or criminal procedure rules in force in Tonga which address this issue.

"However we are satisfied, consistently with Fukofuka, that the Supreme Court has inherent jurisdiction to control its processes to ensure the proper administration of justice and that this extends to permitting or directing an amendment of an indictment, after a new trial or retrial is directed by this Court.

“We do not accept the submission made by Mr Lavulavu that leave of this Court is required to permit any such amendment. No condition or limitation of this kind was imposed by this Court when directing the retrial. It was envisaged that any application for leave to amend the indictment would be made and dealt within the Supreme Court. Whether the Supreme Court should exercise its discretion to permit or direct an amendment of the indictment is a matter in the discretion of that Court including consideration of whether any such amendment would amount to an abuse of process or is otherwise inappropriate."

Rejection 

Mr Lavulavu also submitted that the amended form of indictment constituted an abuse of process on a variety of grounds: it amounted to a completely different charge; the prosecution was impermissibly "patching up" its case; it introduced a new element of intention and was prejudicial; he would be facing new and different evidence.

"We cannot fault the Lord Chief Justice's conclusions and reasoning on these points. The requisite element of section 164, for both defendants in each count, of false pretences, remains unchanged. The Lord Chief Justice pointed out, this Court has said the prosecution evidence was sufficient to support convictions for the offence under s 164 which remains the charge Mr Lavulavu is facing. As well, there is no suggestion here of any alternative or different charge being alleged in the amended indictment.

“We are satisfied for the reasons given by the Lord Chief Justice that there is no basis for Mr Lavulavu's submission that the prosecution “was impermissibly "patching up" its case by the amended indictment. Nor are we persuaded there is any prejudice to Mr Lavulavu in the addition of the intention element in the amended indictment. This does nothing more than give effect to this Court's decision about the mensrea elements the prosecution is required to prove. If anything, the amendment places an additional onus on the prosecution."

As to the submission that Mr Lavulavu would be required to face new and different evidence, the judges note that the Lord Chief Justice accepted Mr Lutui’s advice that the prosecution would be essentially relying on the same evidence adduced at the first trial with the exception of any additional evidence resulting from Mr Lavulavu's change of stance on his prior agreement to admit certain facts. Mr Lutui confirmed this remained the case.

During the hearing of the appeal,they also proposed a small amendment to Counts 4, 5 & 6 of the indictment to better reflect the mensrea elements to be proved for accessory liability.

"We proposed in each case that the last four lines should read: "...but you knew that was false and you knew ' Akosita LavuIavu intended for the Ministry of Education and Training to act on that false representation, and the Ministry of Education and Training relied on that false representation and paid the said money."

“This reflects the mens rea for the crimes alleged against Mr Lavulavu. The Crown must prove beyond reasonable doubt that he knew the representation was false and that Mrs. Lavulavu intended the Ministry to act on it. Mr. Lutui had no objection to this proposed amendment but it was opposed by Mr. Lavulavu and by Ms Fa'anunu and Ms Afu for Mrs Lavulavu. We consider the amendment is appropriate and would not materially prejudice Mr or Mrs Lavulavu. We have power to direct the amendment of any indictment under Clause 89 of the Constitution and Order 8 rl(2) of the Court of Appeal Rules 1990 and we intend to do so,” they ruled.

No abuse of process

The judges then asked were there any other grounds which amounted to an abuse of process?

“The Court stated in his notice of appeal and submissions, Mr Lavulavu raised numerous other grounds support of his contention that there had been an abuse of process such that a fair trial could not be held.

“Some of these had not been raised in the court below. In summary, the grounds raised were: there was unjustified delay since he was first arrested; there was improper manipulation or misuse of evidence; evidence had been lost or destroyed; there had been adverse publicity in the media and the ruling of the Lord Chief Justice under appeal was unfair and constituted apparent bias.”

The Court found that the first two grounds had not been raised in the Court below and they did not have the benefit of the views of the Lord Chief Justice on them. However, the events in question occurred in 2013 to 2015 and it is now over five and a half years since Mr and Mrs Lavulavu were arrested. They have been in custody for over a year and more than two-years have elapsed since their original trial before Justice Cooper.

The prosecution intends to rely on 12 witnesses all but one of whom gave evidence at the first trial. The exception is a police officer has since died and whose evidence will now be given by another officer. In addition, the prosecution intends to call up to 150 student witnesses. This is necessary because sensible agreements dispensing with the need to call these witnesses have not been maintained.

“While the delay since the arrest of Mr and Mrs Lavulavu has been significant, we are not persuaded that any of these matters is such as to preclude a fair trial or to justify the allegation of abuse of process. Mr Lavulavu submitted that the Institute itself as the relevant legal entity ought to have been charged rather than himself and his wife,” stated the judges.

"There is nothing in this point."

In addition, the prosecution is entitled to charge the individuals responsible for the alleged crime of obtaining by false pretences.

"He also alleged that the Attorney-General and prosecutors had refused to provide a copy of the complaint leading to their arrest, had acted dishonestly in the preparation of the indictments and the making of submissions and tried to hide evidence. As well, he submitted the Police had threatened witnesses, especially students and employees of the Institute, when interviewing them and had manipulated statements. He also alleged that the Attorney-General had acted unfairly and abused her powers. These allegations lack specificity and are unsupported by any evidence.

“We reject them accordingly. We add that there is no obligation to disclose the identity of the complainant in the circumstances of this case where the complainant is not a material witness. To do so would compromise the ability of the police in the detection and investigation of criminal conduct and is not in the public interest.”

Loss/destruction of evidence and adverse publicity

The judges said similarly, no evidence was offered to support the allegations of the loss or destruction of evidence or claims of prejudice through adverse publicity.

Finally, they rejected the allegation that the Lord Chief Justice’s ruling was unfair and constituted apparent bias.

"There is nothing in the extensive materials before us to suggest that the Lord Chief Justice was unfair in any way to Mr Lavulavu or exhibited any favouritism to the prosecutors. By this judgment, we have found his careful and thorough ruling to be correct in law in all respects. This ground is also rejected.”

“The appeal is dismissed. We direct that counts 4, 5, and 6 of the indictment be amended as set out,” ruled the Appeal Court judges.