Lavulavu found guilty of contempt of court by Judge Tupou in hearing over online interview

Disgraced politician Etuate Lavulavu has been found guilty of contempt of court.

In a case brought by the Attorney General and heard by Hon. Justice Tupou KC, the court was told that on October 26, 2022 the former MP took part in a live streamed interview on Facebook and Youtube, during which he committed contempt of court.

‘Etuate Lavulavu

In the interview, Lavulavu made a number of comments about the conduct of an earlier trial before Judge Cooper involving him and his wife ‘Akosita.

They were charged with obtaining money by false pretences contrary to section 164 of the Criminal Offences Act, and three counts of knowingly dealing with forged documents contrary to section 172 of the Criminal Offences Act.

The offences related to the operations of the ‘Unuaki ‘O Tonga Royal Institute (UTRI), a private education provider with its head office situated at Tofoa. ‘Etuate Lavulavu was the president. ‘Akosita was the director.

The Lavulavus were convicted in a trial before Judge Cooper, but that conviction was overturned by the Court of Appeal.

In the contempt trial, The Attorney General relied on six statements made by Etuate Lavulavu during an interview with VPON media that constituted remarks to the effect that:

i) Justice Cooper predetermined the case; ii) Justice Cooper’s application of the law was incorrect, iii) Justice Cooper disregarded the Lavulavu’ s arguments without any consideration of them; iv) their convictions were not based on evidence; v) Justice Cooper is not allowed to disregard the testimony of witnesses; and vi) Justice Cooper’s decision was influenced by political figures and persons of high rank.

On February 28 this year the Lord Chief Justice KC ruled that with the exception of the sixth charge, the other charges were broadly consistent with the decision of the Court of Appeal and did not constitute a prima facie case of contempt.

Lavulavu pleaded not guilty to the sixth charge.

The Attorney General tendered evidence based on the interview between Lavulavu and interviewer Sylvester Tonga on 26 October, 2022 titled Polokalama Mavahe that was live streamed on VPON Media & Broadcasting Facebook account on link https://fbwatch/gPTcBpG73q/  and on Youtube at the link

A transcript was presented to the court of Lavulavu saying: “Yes I believe that is what happened and it was not just me who saw them I was very surprised but I don ‘t want to talk about who it was but they are political figures, two of them and others who are in a higher level than the Judge. I think its best if I just leave it at that, but to my knowledge there are people, from what I know, who have been misleading the Court and I feel sorry for the Court. I stayed back when the Court of Appeal trial finished and the appeal judges came and delivered their judgment and I felt sorry for the Judge and I had a lot of love for the Judge. I really felt that he believed these people who were trying to mislead him from the side and that’s where the truth was lost and for other reasons that I will discuss tomorrow.”

In a sworn affidavit Sylvester told the court he had made 10 programmes with Lavulavu.

In the interview already cited, he asked Lavulavu if he believed there were persons who misled the Judge causing his decision to be biased and unfair as decided by the Court of Appeal. Translated from the Tongan , it reads:

“My question to you is that yesterday you raised that there are some people from the outside who have been visiting the office of the court. I want to know whether according to what you know, if there were any others who were affected by the Judge’s decision that was full of bias and unfair and those other grounds that were accepted in the Court of Appeal.”

He confirmed that Lavulavu later identified persons who had influenced the case as the DPP, Crown counsels involved in his case and the Probation Officer.     

Judge Tupou said the Crown had proven beyond reasonable doubt that the statements made by Lavulavu had been made via the VPON Media & Broadcasting Facebook and Youtube platforms.

In making his submission the Attorney General quoted Lord Chief Justice Paulsen who said:

“Any act done or writing published calculated to bring a Court or a Judge into contempt or to lower his authority is a contempt of Court. The purpose of this form of contempt is to protect the public (not the Court or the Judge) from the mischief that will occur if the authority of the Court is undermined or impaired.

“In an action for contempt by scandalising the Court, what must be proved beyond reasonable doubt is the publication of material that is calculated, in the sense of likely, to bring a Court or a Judge into contempt or lower their authority in the eyes of the community. There is no requirement that it be proved that they were in fact so undermined.”

Judge Tupou said the clear imputation of Lavulavu’s words was that outsiders were visiting the court office, that those outsiders were people interested in politics and persons who occupied a position higher than the Judge, that those people misled the Judge and the Judge believed them, resulting in the loss of truth.

“A listener or viewer, in my view, would understand from the statements made by Lavulavu that Justice Cooper’s decision to convict him was driven by outside forces, namely, persons interested in politics and persons above his level; that Justice Cooper in believing those persons is not impartial; that the Supreme Court is not an independent institution and is susceptible to political influence and authorities higher than the court,” the judge said.

“The statement strikes at the core function of a Judge and his oath to perform truly and with impartiality his duties as a judge, sufficient to shake the “confidence of ordinary people in the proper, safe and efficient administration of Justice.”

“I am satisfied beyond reasonable doubt that the charges against Lavulavu has been proved. I find him guilty of the offence of contempt of Court,” Judge Tupou said.

For more information

Re-trial for Lavulavus. Judge overstepped the line and took on prosecutor’s role says panel

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