By Linny Folau

The re-trial of multiple charges against former government ministers, ‘Etuate and ‘Akosita Lavulavu, is adjourned to start on 30 October, after Acting Justice Langi rejected a proposal that it be deferred to early 2024, at the Supreme Court in Nuku’alofa, citing various reasons for urgency to proceed.

"At the same time, this case has been highly publicized and involves criminal charges against two former Ministers of the Crown. It is therefore in the public interest and in the interest of justice that this matter be dealt with as soon as possible,” stated A/Justice Langi in a ruling yesterday, 18 October,

This was an application by Mrs 'Akosita Lavulavu to adjourn the re-trial that was scheduled to start on 16 October.

Mr ‘Etuate Lavulavu [in person] did not file any application but informed the court that he supported the application for adjournment, so the application was treated as if it was from both defendants.

A/Justice Langi stated that the reasons by Mrs. Lavulavu for requesting an adjournment of the re-trial were: to allow her new counsel [Mrs Fa'anunu] more time to prepare for the trial; as she had only retained her new counsel on 8 September 2023 and they only received the pile of files from her previous counsel, Ms Kafoa, on 13 September 2023, among other submissions.

On 11 October 2023, Mrs. Fa'anunu also filed an affidavit in support of Mrs Lavulavu’s application for adjournment and at the time filed, the counsel was still in Samoa, where she had travelled to visit her sick father who was scheduled to have an operation, said A/Justice Langi.

“Mrs Fa'anunu stated her reasons for seeking an adjournment included not being able to fully commit to her work at this point, while she is looking after her father in hospital; that they were only retained by the applicant on or about 8 September 2023 and only received the files from the previous lawyer, on 13 September 2023; the files are volumnious and she and Ms Fanga Afu would appreciate more time to prepare for the re-trial.

“In addition, she argued that in the interest of justice the adjournment will allow counsel sufficient time to prepare for this re-trial and requested that it be deferred to January or February 2024.”

Plagued by adjournments

The Director of Public Prosecutions, Mr James Lutui opposed the adjournment and submitted that Mrs. Fa'anunu knew very well that the retrial had been set down to commence on 16 October 2023 and the extent of the evidence against her client; that on 17 August 2023 she had been initially engaged by Mr Lavulavu in respect of his interests in this prosecution; that on 18 August 2023 she informed the court that Mr. Lavulavu had approached her in July 2023 seeking her assistance but she had only agreed to re present him in August after looking at his documents.

He also argued that this trial had been plagued already with numerous adjournments due to various late-stage applications and appeals being initiated, adversely affecting the interest of the second defendant ['Etuate Lavulavu], who had made that point clear throughout his numerous applications, appeals and complaints to Court.

However, in light of the unexpected condition of Mrs. Fa'anunu's father, Mr. Lutui submitted that they would agree to adjournment for one or two-weeks but strongly opposed the proposal for the retrial to be adjourned to January or February 2024.

Adjournment to 2024 not granted

“I am satisfied that an adjournment of the retrial to January or February next year should not be granted for the reasons that follow,” said the judge.

“Firstly, the fact that Mrs. Lavulavu only retained Mrs. Fa'anunu, at what must be considered as the eleventh hour, to represent her is not a reason to grant an adjournment in the particular circumstances of this case.

“On 11 November 2022, the Prosecution had filed a Notice of Confirmation of retrial, informing the defendants that the Crown will proceed with the charges against them. There was more than sufficient time for Mrs. Lavulavu to retain legal counsel especially given the seriousness of the charges against her. However, she waited ten months after being in formed that the Crown will proceed with the retrial, to retain Mrs. Fa'anunu.

“Additionally, as alluded to by the Crown, this matter has been plagued with several adjournments due to various applications and appeals being initiated. These various adjournments have been raised by Mr. Lavulavu in his numerous applications and appeals to the Court as adversly affecting his interest. Only recently in his appeal case AC 12/23 he had submitted to the Court of Appeal one of the grounds which amounted to an abuse of process was the unjustified delay, since he was first arrested."

The Acting Justice stated this matter had been set to run for six to eight weeks and competing claims of litigants in other cases have had to be moved to await hearing to accommodate the re-trial of this case. “It is not the court’s or the prosecution’s fault that Mrs. Lavulavu has retained counsel at this very late stage.”

It was in the public interest that the matter be dealth with as soon as possible.

“The court does not have unlimited resources and is not always able to provide alternative dates when it suits the parties....However, in light of Mrs. Fa'anunu's situation in having to travel to Samoa to be with her sick father to adjourn the re-trial for one and a half weeks for counsels to prepare. The re-trial will commence on Monday, 30 October 2023,” she ruled.

The defendants are facing multiple charges, including obtaining money by false pretences in regards to the ‘Unuaki ‘o Tonga Institute.