Tonga’s Attorney General is appealing a Supreme Court ruling that stops using the Auditor’s report on Lavulavus’ school attendance as admissible evidence in a pending re-trial of the Lavulavu couple.
As Kaniva News reported previously, the Supreme Court has ruled that a report compiled by the Auditor General’s department on a school at the centre of the Lavulavu’s trial cannot be used as evidence in court.
Judge ‘E.M.Langi, presiding, said the standard of the material in the report amounted to hearsay.
However, local media reported today that the Solicitor General submitted that the whole report was not based on hearsay.
A report by the Tonga Independent described the basis of the appeal in Tongan as: “ko e konga pe he ‘Atita na’e na’e ‘iai ‘a e fanongo Talanoa (hearsay) pea ko e konga pe ia ke to’o kae ‘oua ‘e fakata’e’aonga’i kotoa ai ‘a e fu’u lipooti”.
The news outlet said that Solicitor General Semisi Lutui submitted that only part of the Auditor’s report was based on hearsay. He argued that the court could remove that part of the hearsay report, and the rest should be regarded as valid.
Judge Langi ruled that the Auditor General’s Report dated October 5, 2016, was inadmissible as evidence in Lavulavu’s retrial.
She said the Crown could not rely on the report as evidence of its truth.
On October 10, 2022, the Court of Appeal quashed convictions against Etuate and Akosita Lavulavu for obtaining money by false pretences for their private college, Unuaki o Tonga Royal Institute and ordered a retrial.
The retrial was set to run before the then-Lord Chief Justice Whitten on May 8, 2023. The Crown intended to rely on a report from the Auditor General dated October 5, 2016, but on May 1, 2023, the Defendants‟ filed objections to the admissibility of the Auditor General’s Report.
The retrial was initially listed to commence in May 2023, but for various reasons did not proceed.
On August 16, 2023, Mr. Lavulavu filed supplementary submissions in respect 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 is unacceptable.
Former Lord Chief Justice Whitten determined that the content of those supplementary submissions would have to be dealt with by way of a voir dire, including the calling of evidence.
The voire dire eventually began on November 7, 2023.
After considering the submissions of both parties on the scope of the voir dire, I agreed with Mrs. Fa‟anunu and Mr. Lavulavu that the evidence by Crown witness Ms. Popua Mafi may have exceeded the scope of the voir dire grounds, the judgement read.
“On December 18, 2023, amended grounds of objections were filed on behalf of the First Defendant. On 31 January 2024, I issued written directions on the scope of the voir dire”, the judgement also read.
“Before the continuation of the evidence of Popua Mafi I informed the parties that the only grounds that I would consider for the purposes of this voir dire were hearsay and unlawfully obtained evidence. I informed them that I would not be concerned with any issues of credibility or reliability, as they were matters for the trial proper,” the judge said.
The first Crown witness was Salome Lavemaau, who led the team assigned to audit the relevant TVET grants to the Lavulavu’s private college, Unuaki „o Tonga Royal Institute (UTRI) together with Lutimila Tafea and Sefita Leha.
They audited the school for the period Semester 1 of 2013, Semester 2 of 2014 and Semester 1 of 2015;
Salome’s role was to review the expenses for which the TVET grants were used. Half of the grant was to be used for teachers salaries, with the remaining 50 percent divided between teaching and learning resources.
She was provided with UTRI financial statement and receipts and noticed that the details on the receipts were inconsistent with the financial statements. The mority of the receipts were not for expenses for renovating the school which was the main purpose of this part of the grant. Consequently, when the expenses did not add up, she submitted her report in which she stated that she was not satisfied with the information provided.
