An application by disgraced former politician ‘Etuate Lavulav for Lord Chief Justice Whitten to recuse himself from hearing his second bail application has been dismissed.
Lord Chief Justice Whitten, presiding, told the Court of appeal that Lavulavu had not proven that there were grounds under which he should stand down.
On June 4, 2021, Lavulavu and his wife, who was then a Cabinet Minister, were convicted of three counts of obtaining a total of TP$558,600 by false pretences.
On 30 June 30, 2021 , they appealed against their convictions.
On July 2, 2021 they were sentenced to six years imprisonment with the final year of Mrs Lavulavu’s sentence being suspended for two years on conditions. They appealed against their sentences and filed an application for bail. The application was dismissed by Judge Whitten.
On July 7 this year the couple filed a second application for bail.
On July 29 Mr Lavulavu filed an application for Lord Chief Justice Whitten to step down and not hear the application.
Mrs Lavulavu did not join in the recusal application.
Mr Lavulavu claimed that the judge should not hear the second bail application because he had a conflict of interest and/or might actually or presumably be biased against him.
He based his claim on the fact that the judge had presided over civil proceedings between the ‘Unuaki ‘o Tonga Royal Institute and the Lavulavus and the Auditor General.
He also cited the fact that the judge had heard and refused the first bail application.
He also cited the fact that the judge had communicated with the Commissioner of Prisons in relation to a recent leave of absence granted to Mr Lavulavu.
The judge said the original civil proceedings began before he took up his office in Tonga. He case managed the proceeding until it was almost ready for trial, but did not make any rulings in relation to any of the issues in dispute or in respect of Mr Lavulavu.
The second claim regarding the two bail applications was also dismissed. The judge said the first application was under-prepared. The second appeal contained a far more developed set of arguments.
“If there are more developed arguments or other arguments to be considered on the second bail application, then my refusal of the first could have no impact on my consideration of the second,” the judge said.
The third grounds concerned communications between the judge and the Commissioner of Prisons.
On June 4, 2022, Lord Chief Justice Whitten wrote to the Commissioner of Prisons, Semisi Tapueluelu, to say that he had been told that Lavulavu had attended a meeting at the offices of the Port Authority in relation to a company by the name lnter Pacific Limited.
“I bring this to your attention, in case you were not aware, as Mr Lavulavu is currently supposed to be serving a prison sentence,” the judge wrote.
“Could you kindly explain the basis upon which Mr Lavulavu was granted a leave of absence for this purpose? My reading of the Prisons Act, and the purposes specified for a leave of absence, such as medical examination, assessment or treatment; to attend an educational or training course; to participate in paid employment or community service; or compassionate purposes, makes it difficult to see how a business meeting might fall within the last of those prescribed, namely, ‘any other purpose as the Commissioner thinks fit ‘.”
Tapueluelu said Lavulavu had been granted a leave of absence for a medical assessment and to meet with his legal counsel.
“His state of health is deteriorating according to specialist Dr Sione Latu,” the commissioner wrote.
“Based on your email we issued a revocation order of his LOA and he was escorted back to Tolitoli Prison on the same day.
“I talked to the Ports authority Chief Executive Officer Mr ‘Alomailesini about Mr Lavulavu ‘s involvement in this official meeting. He asserted that it was not a board meeting nor an official meeting. It was a ten-minute follow-up on any debt owed by PAT to IPL. Mr Lavulavu ‘s presence was simply to inquire of the debt owed by IPL to him to pay for his appeal.
“Mr Lavulavu did not breach his LOA conditions.”
The judge said it was not clear why Lavulavu had to visit the Ports Authority simply because he claimed that Inter Pacific owed him money.
“One would have expected such matters to be dealt with by further correspondence or telephone and by Inter Pacific ‘s own lawyer,” Lord Chief Justice Whitten said.
“It is not clear why a “Revocation Order” of Mr Lavulavu’s leave of absence was issued upon receipt of my enquiry if the reason for him being at the Ports Authority was known to the Prison in advance and had been approved.”
“The text of the emails clearly states that the purpose of those communications was to inquire of the Commissioner of Prisons about Mr Lavulavu’s leave of absence but more importantly how the Commissioner of Prisons exercised his discretion under S. 46 of the Prisons Act in relation to the granting of a leave of absence.
“The significance in the current context was that where applications for bail pending appeal are made, the availability of a leave of absence during the relevant period could be a relevant consideration.
“Therefore, in my view, those exchanges do not contain any expression on my part which reflect any prejudice or affect my ability to impartially consider and determine the second bail application.
“Accordingly, the third ground also fails.
“The application for recusal is dismissed.”
