Judge rules controversial trial moves forward without further delay

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By Kalafi Moala

 

Nuku’alofa, Tonga – There are a number of crucial issues hanging on this case that are significant to the public interest, that what the Supreme Court of Tonga eventually decides will impact in one way or another the operation of government, the future of a political party, the future of an educational institute, and perhaps the political election of 2021.

The Lavulavus have become the most controversial persons of interest in Tonga at this point, more so than other controversial political personalities of previous years. 

The controversies, however, is less to do with any extreme ideological stance or political promises they’ve made, but rather the criminal convictions ‘Etuate Lavulavu has on record; and the current criminal case in which he and his wife ‘Akosita are charged with, which is fraudulent practice and false pretenses after irregularities were discovered in an audit of their vocational school, ‘Unuaki o Tonga Royal Institute (UTRI), in 2016.

‘Etuate Lavulavu is practically the chief advisor to Prime Minister Pohiva Tu’i’onetoa. He is also the deputy chair of the Prime Minister’s political party, PAK, and the effective Managing Director of the party.

The controversial cloud hanging over the government and indeed the PAK party is all to do with Lavulavu, whose wife, ‘Akosita, is the Minister of Infrastructure, Tourism, and Transportation, one of the senior members of Cabinet.

The latest twist to the Lavulavu case was a request from one of the lawyers, William Clive Edwards Jr. that the hearing of their case be postponed to June 2021 pending on the arrival of Lavulavu’s lawyer, Stephen Stanton, from Australia.

Stanton, according to Edwards, has been held up because of the Covid-19 border restrictions, and could not be in Tonga for the case.

But Chief Justice Whitten on Friday 29 January rejected the request saying “the case has been held up for two years now.” And if need be, the lawyer can still join the hearing from Australia by zoom, which has been used in court cases before.

He set the hearing without any further delay for 12 April 2021.

The facts of the case as in the judgment on severance application

Back in 2019, Etuate Lavulavu filed an application at the Supreme Court for a severance of the joint trial of him and his wife. He wanted them tried separately. 

Acting Chief Justice Charles Cato was presiding; Linda Folaumoetu’i, Attorney General, for the Crown; and Etuate Lavulavu represented himself.

Lavulavu explained that a joint trial would prejudice him and that he would be adversely affected by the mere fact of their marriage relationship by evidence that was adverse to his wife and not him.

But the judge was satisfied “that evidence to be presented by the Crown does justify a joint trial on ordinary principles.”

Much of the evidence presented by the Crown affirming their allegations against Lavulavus are based on the irregularities presented in the audited report dated 5 October 2016. 

Photo from the Unuaki Royal Institute, Facebook page

This report was a result of a request from the Ministry of Education and Training (MET) that the Office of the Auditor General do an audit of TVET grants to UTRI.

The Lavuavus were arrested in 2018, and charged that they, a) obtained money by false pretenses (3 counts) violating Section 164 of the Criminal Offense Act. b)Knowingly dealing with forged documents contrary to Section 172 of Criminal Offenses Act.

‘Etuate Lavulavu was President of UTRI, a private education provider. ‘Akosita, his wife, was Director of UTRI at the relevant time.

‘Akosita Lavuavu applied for assistance under TVET grant for the first semester of 2013 for 255 students; and then for the second semester of 2014 for 416 students; and also for the first semester of 2015 for 271 students.

The rate at the time per head of student was $600. All applications were approved.

For the 2013 first semester, $146,000 was paid in by MET into the UTRI bank account at BSP.

For the 2014 second semester, $249,580 was paid to UTRI and deposited into a TDB account.

And then, for the 2015 first semester, $162,600 was paid and deposited into the BSP account of UTRI.

On record, the transfers made from UTRI accounts to personal accounts of either ‘Etuate Lavulavu, ‘Akosita Lavulavu or Semisi Havili took place almost immediately after the deposits into the UTRI accounts.

In one case when $249,580 was paid to UTRI, it was deposited on 18 November 2014 into a loan account at TDB, named UTRI ES & A Lavulavu. The account had a debit balance of $63,072.29. The deposit effectively settled the debit balance.

The remaining $186,507.91 was then transferred to a personal account of ‘Akosita Lavulavu, which was only opened on 18 November 2014, the day of the deposit into the UTRI loan account.

From November 18 – 12 December 2014, all but $507.71 was either withdrawn or transferred to accounts in other banks.

The records also show personal withdrawals made by ‘Akosita from different ATMs from the ‘Akosita Lavulavu or Semisi Havili BSP account. And on 16 July 2015, ‘Akosita used EFTPOS at the Little Italy Pizzeria and paid $1,712.75.  

The Findings of the Office of the Auditor General

In the first semester of 2013 in which applications were made for subsidy funding of 255 fee-paying students, there were only 6 paying students. UTRI, according to the audit report, was only entitled to receive $3600 under the grant and not $146,000.

In the second semester of 2014, in which there were applications for 416 fee-paying students, there were only 9 paying students at UTRI. The Institute was only entitled to receive $5400 instead of $249,580.

And for the first semester of 2015, an application was made for 271 fee-paying students, but there were only 4 paying students according to the audit report. UTRI was entitled only for $2400 instead of $162,600.

On 16 May 2017, in response to the audit report, ‘Etuate Lavulavu met with CEO Claude Tupou, Deputy Manu ‘Akau’ola, and Auditor General Sefita Tangi.

As reflected in the minutes of this meeting, ‘Etuate accepted the fact that there were only 19 fee-paying students over the three years of the assistance from the grant funds.

The Police who were called to investigate reported that staff and students of UTRI were requested to go out and recruit students, and that they would be paid depending on how many students are recruited.

Students could pay their fees in cash, by agreeing to work for UTRI, by student loan agreement, by commodity exchange, and scholarship.

Mele Tovi, an administration staff, who checked applications, said she issued receipts of $100 for 1 semester, and $200 for a full year. ‘Akosita would give her the list of students to be given receipts, and then the list would be given to ‘Etuate for final approval.

Ms. Tovi admitted that the majority of receipts for the three years 2013 – 2015 never received cash payments.

There were others who gave evidence to Police that shed light on the irregularities of operations as discovered by the auditing.

There are allegations that there were many who were not students that were listed on the application in order to solicit the TVET grant.

‘Etuate denied and did not accept the evidence the Crown relied on.

But Justice Cato said that criticism of evidence would be relevant at trial stage but that he was trying to consider the application for severance of joint trial on evidential basis.

He rejected the application for separate trials.

Background conclusion

When the Lavulavus were arrested in October 2018, ‘Akosita was the Minister of Internal Affairs (MIA). She was then dismissed from Cabinet by the late Prime Minister at the time, ‘Akilisi Pohiva, because of the criminal case pending.

She was re-elected a year later by the current Prime Minister Rev. Dr. Pohiva

Tu’i’onetoa, as Minister of Infrastructure, even before the case had been heard.

In 2016 Tonga’s Supreme Court convicted ‘Etuate Lavulavu of bribery and spending over the legal limit on his 2014 election campaign. He lost his seat in Parliament as a result.

The judge then said: “Etuate was not a credible witness and that his evidence was implausible, evasive and untruthful.”

In a 2000 case in which Lavulavu lost in a land dispute, Chief Justice Ward who was presiding said: “ I felt he was willing to say almost anything that seemed to suit the moment with a repeated disregard for the truth.”

The other current lawsuit ‘Etuate is facing is an accusation that he allegedly forged a landlord’s signature in Vava’u from whom he leased land. 

 

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