By Linny Folau

Key evidence in the trial of disgraced former government Ministers, ‘Etuate and ‘Akosita Lavulavu, has been ruled inadmissible in their retrial, which has been constantly delayed since last year.

Acting Justice Langi at the Supreme Court in Nuku'alofa ruled on 16 August, that an Auditor General’s Report cannot be used as evidence in the re-trial of the Lavulavu couple because the information compiled had relied on hearsay evidence.

The judge issued a 49-page ruling, on an investigation, Voir Dire on the admissibility of the Auditor’s Report.

The couple are charged with obtaining money by false pretenses, in that they allegedly provided the Ministry of Education and Training with inflated numbers of students and as a consequence, received substantially more funding than they were entitled to on behalf of the ‘Unuaki ‘o Tonga Royal Institute.

As of background, on 10 October 2022, the Court of Appeal quashed convictions against both defendants for obtaining money by false pretenses and ordered a re-trial. The couple who were both serving jail time after being convicted on their first trial, were freed.

They are to stand a re-trial, which was initially listed to start in May 2023, but has been constantly delayed since last year, due to ongoing legal arguments, including the latest Voir DIre to determine evidence admissability.

Acting Justice Langi stated that in this case, the audit officers assessments are that x number of students are unreliable and there are anomalies in the TVET grant applications, and after investigating, that is interviewing students or their families and town officers, they recommended that this amount of money should not have been paid.

“When you trace back all those calculations, it comes back to the students, the names on the worksheets, where an auditor says ‘I spoke to so and so and he or she is not a real student’. All of that is rooted back in that first information as statement of fact.”

Acting Justice Langi ruled that she was not satisfied that the Auditor General’s Report should be admitted as evidence, under the common law exception to the hearsay rule.

"As a result of the above considerations, I hereby rule that the Auditor General’s Report (Report) dated 5 October 2016, is inadmissible as evidence in the trial proper. I further rule that the Report cannot be relied upon by the Crown as evidence of the truth of its contents."

“Moreover, the Voir Dire has obviously taken an exceptionally long time to conclude. A substantial amount of documents have been filed by both parties containing information that were both relevant and irrelevant," the judge stated.

Arguments

The Crown was intending to rely on, as it had during the first trial of the Lavulavu couple, before Cooper J, on the report from the Auditor General dated 5 October 2016.

On 16 August 2023, Mr. Lavulavu filed supplementary submissions of his objections to the report and contended that the process by which the Auditor General produced his report was improper, unlawful, unreasonable, irrational, procedurally unfair and unacceptable.

The Acting judge rejected the submission that the report was unlawfully obtained. The Auditor General himself had given evidence and stated that the report is in fact a public document. 

However, she stated that in this case, it goes without saying that the actual worksheet and the underlying records of students conversations and conversations with town officers and families, were never meant to be public records. 

"In his Report, the Auditor General simply recorded information given to him by his audit team members who, in turn, simply recorded information of statements about whether a particular person was a legitimate student or not. In other words, statements of fact made by those students or other persons interviewed by those officers.

“If this is correct, then the Report does not contain relevant statements of a fact in issue, which were made by a public servant in discharge of his official duty. No public servant made the statements, it was the interviewees that made the statements. The public servants only recorded them."
“In other words, statements of fact made by those students or other persons interviewed by those officers. If this is correct, then the Report does not contain relevant statements of a fact in issue which were made by a public servant in discharge of his official duty. No public servant made the statements, it was the interviewees that made the statements. The public servants only recorded them,” she stated.

Meanwhile, the Director of Public Prosecutions, Mr. Lutui submitted that if the report cannot be admitted under section 89 (f) then it should be admitted under the new exception in 89 (o). This new amendment gives the judge a wide discretion to admit hearsay evidence, “where the Court is satisfied that it is in the interest of justice” to do so. 

“Unfortunately for the Crown, I find it difficult to accept Mr. Lutui’s argument on this issue. In a nutshell, the Crown’s proposition is that it is in the interests of justice for the Report and the Worksheet to go before the court and for the court to act on it without any possibility of the defendants being able to test the evidence at its roots. 

“This cannot be in the interest of justice. It might be in the interests of the Crown, but it cannot be in the interest of justice, which has to balance both interests of the State and the interests of its subjects.”

“In my view, the exceptions on the interests of justice cuts both ways. The interest of justice here seems to be informed by clause 11 of the Constitution. The Constitution as the Supreme Law of this country, steps in over the top and declares that defendants ‘are entitled to have the Crown’s witnesses be brought face to face with him (except according to law) and he shall hear their evidence and shall be allowed to question them.’

“A fundamental question that arises here is, how is the Crown going to give effect to this requirement for the conduct of cases by indictment unless he can produce those witnesses? It has been unfortunate for the Crown that with fluctuation of time many witnesses have become unavailable. But the Crown’s approach in trying to get the report in as evidence of the truth of its content will defeat that constitutional requirement and is inherently unfair. It is a matter of the most basic justice and procedural fairness.”

She added that the defendants will not have an opportunity to test the evidence and cannot dispute what is in the worksheet and that is inherently wrong. 

Inadmissable

At the same time, even if the report were allowed in as a historical document but not as evidence of the truth of its content, she has difficulty in understanding where this would get the Crown, since it’s not going to stand as evidence of the number of students or alleged false students listed in the audit sheets, the Acting judge stated

"I am not satisfied that the Auditor General’s Report should be admitted as evidence under the common law exception to the hearsay rule; iv. Parts of the Auditor General's Report that are a result of assessments made by audit officers

“I also do not agree with Mr. Lutui’s argument that the parts of the Auditor General’s report that are a result of assessments made by the audit officers is not hearsay".

She stated theoretically, that might be correct. However, the quality of that evidence is going to be undermined by the fact that those assessments are based on hearsay. If the root of the evidence is hearsay, you simply cannot go around it because it infects everything that follows it or flows from it. She pointed out like in Tomasi, the wife gave a statement to police on what her husband did.

“In this case, we have audit officers going around in the community writing down on a piece of paper what someone else told them. They are not stating a fact but recording a fact stated by another person out of court and at this stage, not to be called to give evidence in court in the substantive trial. Unfortunately for the Crown, it is impossible to get away from it and the evidence is just hearsay,” she added.

“Moreover, when the audit team handed the information to the Auditor General in this case to compile his report, it’s double hearsay. In a nutshell, the Auditor General is saying, my team member told me that someone told him that he did not attend school‟ or did not pay school fees‟ and so on. The assessments themselves are informed by hearsay evidence,” the ruling stated.