By Linny Folau

An application by ‘Akosita Lavulavu, supported by her husband ‘Etuate, for Acting Justice Langi to recuse herself from presiding over their re-trial later this month, was refused in a ruling on 18 October, at the Supreme Court in Nuku’alofa.

A/Justice Langi said the application by Mrs Lavulavu was founded on apparent bias, that since she [the A/Justice] was employed at the Attorney General's office as senior counsel between 2016-2018, when the criminal charges against Mrs Lavlavu began, it would be prejudicial, which might possibly lead her to deciding this case other than on its merits.

“The end result is that there is no basis or evidentiary foundation upon which to infer or impute that my employment at the AGO's office at a time when criminal investigations against the applicant and her husband were received might lead me to decide this case other than on its legal and factual merits. There is therefore no basis upon which a fair­ minded lay observer cognizant of all the material facts may reasonably apprehend that I may not bring an impartial mind to my task." stated the judge in her ruling on the application.

Acting Justice Langi then refused the application to recuse herself from hearing this matter. The re-trial for the criminal charges against the applicant and her husband was scheduled to start on 16 October 2023.

Long winding case

Last month on 26 September, the Director of Public Prosecutions, Mr. James Lutui informed Mrs. Fa'anunu [counsel for ‘Akosita] and both defendants that A/Justice Langi had been employed at the AGO, when the investigations and prosecution of the charges against them started.

“This application for recusal is founded on apparent bias, and the reasons put forth by Mrs. Fa'anunu in her submissions that included; she was a Senior Prosecutor at the Attorney General’s Office during the period 2016-2018 when investigations began in respect of the criminal charges against the applicant; is more likely than not that I was invo lved in the investigations and gathering evidence against the applicant and her husband; there will be no fair trial because l may have been privy to sensitive information and evidence during my time of employment with the Attorney General's Office.

“In her affidavit, Mrs. Lavulavu sets out reasons for me to recuse myself included; she recalls that I appeared with the former Director of Public Prosecutions in one of the Magistrate's appearances; given that I was a Senior Prosecutor, it is more likely than not that I was very involved in the investigations and gathering evidence against her and her husband;

“That there is no fair trial, if I will preside over the case considering that I have been privy to information and evidence already during my employment with the AGO. Mrs Fa'anunu also advanced another point that the Crown had not disclosed that I had 'minimal' involvement' in the case, and she cannot ascertain what 'minimal' involvement' was but she equated it to perhaps when a counsel receives initial consultation with a client and and then later withdrawing as counsel and the party against the original client retains you as counsel,” stated A/Justice Langi.

"To answer the concerns of Mrs. Fa'anunu, my use of the words ‘minimal involvement' meant that I was aware of the allegations against both accused persons as it was highly publicized by the media even before their matter was referred to the Attorney General’s Office.

“I was also aware that when their files were referred to the Attorney General's office, the then Director of Public Prosecution, Mr. 'Aminiasi Kefu, had assigned a team to assess the evidence that had been collected by the Police. From memory, this case was sensitive and the AGO procedure at the time was that only the team of prosecutors assigned dealt with the prosecution. If I did receive any information about the accused persons, it was only at a general level from passing conversations and nothing to remain with me all these years to form an opinion.”

“In addition, counsel made enquiries and confirmed that no appearances has ever been made by me in any of the criminal matters against both defendants.

“The Supreme Court records also show that the original indictments for both of them had been filed in December 2018. However, I had resigned by 26 March 2018. Any appearances in the Supreme Court would have been around December 2018 onwards at which time I was no longer employed at the Attorney General' s Office,” the judge stated.

No basis

“My own personal recollection is that I was not part of the prosecution team assigned to review the evidence against the accused persons, and the suggestion that I may have been involved in the investigations of the accused persons is erroneous as it was the Police who carried out investigations and not the prosecutors. Briefing of progress of investigation was only to the prosecution team assigned to deal with the case."

 A/Justice Langi stated there is no other factual basis for the apprehension other than the fact that she was employed at the Attorney General's Office when the investigation files were received in 2017.

“Nothing has been put forward by the applicant to satisfy this requirement or to establish that because of her connection to the AGO office, she would therefore not decide the litigation impartially and without fear or favor in accordance with her oath as a judge,” she stated.

“Would a reasonable observer, knowing that although I was employed at the AGO when the files against the applicant were received, knowing that I had not been part of the prosecution team assigned to the case, knowing that I had never appeared in court on any of their matters, knowing the facts asserted in the affidavits of Mrs. Lui, believe that I may decide the case other than on its merits? In my opinion, the answer is no.”

Acting Justice Langi stated that a fully informed observer would also know that judges are trained and capable of discharging their duties, in accordance with the oath that they take to do right to all kinds of people, without fear, favour, affection or ill will, in accordance to the laws and usages of their countries, as they are trained and experienced to depart from the irrelevant, the immaterial and the prejudicial in adjudicating the matter before them.

The re-trial will then proceed this month.