The Court of Appeal has dismissed an appeal by Etuate Lavulavu to have charges against him dismissed because they constituted an abuse of process.
The appeal was heard by Judges Randerson, Harison and Dalton .
In summarising the background to the case, the court was told that in 2003 Lavulavu and others founded a private education institute in Tonga. He was its president and, at all material times, his wife, ‘Akosita, was its director. From 2013-2015 the Institute obtained grants from the Ministry of Education and Training. The grants were later audited by the Office of the Auditor-General and irregularities were found. It was recommended that $553,800 be reimbursed to the Ministry and that the case be referred to the police for possible further investigation.
In March 2018 the Lavulavus were charged with three counts of obtaining money by false pretences contrary to Section 164 of the Criminal Offences Act. They were convicted after a trial before Judge Cooper. In July 2021 they were each sentenced to six years imprisonment with the final year of Mrs Lavulavu’s sentence suspended for two years on conditions. They remained in custody until bail was granted in September 2022.
Mr and Mrs Lavulavu successfully appealed against their convictions. On October 10, 2022 the Court of Appeal quashed their convictions and ordered a retrial. The Court of Appeal said there was ample evidence to support findings of apparent bias on the part of the Judge, that the trial was unfair and that the verdicts could not stand.
However, the Court was satisfied that there was sufficient evidence to support convictions on a correct application of relevant legal principles. In November 2022 former Lord Chief Justice Whitten KC set a trial date, for May 8, 2023 if the Department of Public Prosecutions wanted to proceed with the retrial. Shortly before the trial date the DPP filed an amended indictment which, among other things, invoked Section 8 of the Criminal Offences Act against Mr Lavulavu, alleging that he was guilty as a party rather than as a principal offender.
Mr Lavulavu then applied to have the charges against him dismissed on the grounds of abuse of process. In consequence, the proposed trial date was cancelled. On May 19, 2023, Lord Chief Justice Whitten dismissed Mr Lavulavu’s application. Etuate Lavulavu was given leave to appeal. His wife did not appeal.
If a new trial is to be held it is scheduled to proceed before a Judge sitting alone commencing next Monday, October 16, 2023.
In their summary of Etuate Lavulavu’s latest appeal, the judges said the appeal centred round two main questions, which were whether amending the indictment amounted to an abuse of process and whether there were any other grounds amounting to an abuse of process.
Mr Lavulavu submitted that the amended form of indictment constituted an abuse of process on several grounds, including that it amounted to a completely different charge.
However, the judges said that Lord Chief Justice Whitten had made it clear that the amendments did nothing more than give effect to the Court of Appeal’s decision, not changing the nature of the offence to be considered. The requisite element of section 164, for both Defendants in each count, of false pretences, remained unchanged.
Mr Lavulavu also raised numerous other grounds in support of his contention that there had been an abuse of process such that a fair trial could not be held. These included complaints that there had been an unjustified delay since he was first arrested; there had been improper manipulation or misuse of evidence; that evidence had been lost or destroyed and that there had been adverse publicity in the media.
However, the judges ruled that while the delay since the arrest of Mr and Mrs Lavulavu had been significant, none of the matters raised was so significant as to preclude a fair trial or to justify the allegation of abuse of process.
“Finally, we also reject the allegation that the Lord Chief Justice’s ruling was unfair and constituted apparent bias,” the judges said in their report.
“There is nothing in the extensive materials before us to suggest that the Lord Chief Justice was unfair in any way to Mr Lavulavu or exhibited any favouritism to the prosecutors. We have found his careful and thorough ruling to be correct in law in all respects.”
The appeal was dismissed.
