‘Akosita Lavulavu’s leave to appeal refused, re-trial delayed [1]
Thursday, November 2, 2023 - 13:29
By Linny Folau
‘Akosita Lavulavu’s application to the courts for leave to appeal against a ruling by Acting Justice Langi, was refused in Nuku’alofa. Justice Randerson stated he had no hesitation in concluding that this appeal had no merit.
The applicant, 'Akosita, was seeking leave to appeal against a ruling by Acting Justice Langi, who declined an earlier application to recuse herself from presiding over a re-trial of 'Akosita with husband ‘Etuate because of alleged bias.
As a consequence of this appeal filed on 27 October, the re-trial, which was due to start at the Supreme Court last month was delayed yet again. It is now expected to start this month.
In a written judgment, Justice Randerson had no hesitation in concluding that this appeal had no merit and that leave should be declined.
He said this appeal wais against a ruling by the trial judge Acting Justice Langi, issued on 18 October 2023 in which she declined an application by the appellant for an order that she recuse herself as trial judge for alleged bias.
Retrial delayed
In 2018 an indictment alleging serious fraud on the part of the appellant and her husband was filed in the Supreme Court.
Justice Randerson said their trial has been the subject of lengthy delays brought about by a variety of circumstances, including their successful appeal against conviction at an earlier stage. Their retrial was due to commence in the Supreme Court on 16 October 2023 but wais now delayed in consequence of this appeal filed on 27 October 2023.
On 26 September 2023, the Director of Public Prosecutions informed counsel that the judge had been employed at the Attorney-General’s office, when the investigations and prosecution of the charges against the defendants were commenced.
“It is common ground that the judge was employed at the Attorney-General’s office as senior counsel between the years 2016 and 2018 during the time when the investigation and prosecution of the charges against the defendants were commenced.”
On 10 October 2023, the judge emailed the parties to confirm that the matter was ready to proceed on 16 October as scheduled. In the same email, she informed counsel of her employment at the Attorney-General’s office.
No basis
The judge here found and concluded that there was no factual basis for the apprehension that a fully informed observer might decide the case other than on its merits, other than the fact of her employment at the Attorney-General’s office, when the investigation files were received on or about 2017.
"There was no logical connection between those circumstances and the feared deviation that she might decide the case other than on its merits.”
The Judge said there was no objective basis for an informed independent observer to conclude that by reason of her employment at the AGO some six years before that she would be biased against the defendants.
“At the same time, rigorous examination of an allegation of bias is required. Judges have a duty to sit unless there is good reason not to do so,” he said.
“In a small jurisdiction with limited judicial resources, these principles are of particular importance. I have no hesitation in concluding that this appeal has no merit and leave should be declined accordingly. I cannot improve on the reasons given by the judge in declining the application.”
He also said there is nothing in the evidence before the judge to suggest any more than a passing knowledge of the case at the time of her employment, which ended more than five-years ago.
“The suggestion that she had any greater prior connection with the case is purely speculative and has no evidentiary basis.”
He said in short, there is nothing to suggest the judge will not deal with the case fairly, objectively and in accordance with her judicial oath.
Justice Randerson then ruled that the application for leave to appeal is refused, and the application for a stay of proceedings must also be declined.
At the same time, he poinsted out that the leave of this Court was required to appeal an interlocutory judgment. An application for leave to appeal may be determined by a single judge without a hearing.
"I am determining the application under that rule. Similarly with an accompanying application made by the appellant for an order that the proceedings in the Supreme Court be stayed pending the determination of the appeal."
Meanwhile, 'Akosita and 'Etuate are being charged with numerous counts, including obtaining money by false pretences and abetment to obtain money by false pretences regarding a private educational institute, ‘Unuaki-'o-Tonga, which they founded.