In a pivotal ruling, the Court of Appeal has allowed portions of the Auditor General’s report to be used in the retrial of Etuate and Akosita Lavulavu while dismissing their cross-appeal.
The decision, issued Friday, reinforces the court’s trust in the Auditor’s findings and sets the stage for a critical phase in the long-running case.
The Lavulavus, former principals of the ‘Unuaki ‘o Tonga Royal Institute (UTRI), face charges of obtaining money by false pretences under Section 164 of the Criminal Offences Act.
The Crown alleges they inflated student enrollment figures to fraudulently secure over TOP$500,000 government grants from the Ministry of Education.
The former Cabinet Ministers and MPs couple had been convicted and sentenced to six years in jail in July 2021.
In October 2022, the Court of Appeal judges overturned the verdict, determining that the judge who sentenced the couple had not acted impartially. Despite this acquittal, the Appeal Court ordered a retrial for the couple.
Key Findings of the Appeal
Multiple appeals have been filed in the case, including a ruling from December 2023. This latest appeal contested Acting Justice Langi’s decision to exclude the Auditor-General’s report from the retrial, claiming it was hearsay.
The Crown appealed her decision, arguing that not all the report’s content was based on hearsay.
The Lavulavus argued that the report relied on stolen UTRI documents, but the court rejected this claim, a court document shows.
It says Justice Langi found “no doubt” that the documents were taken with Mrs Lavulavu’s and a senior staff member’s consent, Mele Tovi.
The court upheld her ruling, stating any inconsistencies in witness testimony did not prove theft.
Even if the evidence had been unlawfully obtained, the judge affirmed that she would have admitted it, a position the appeals court supported.
The defence also argued that the Auditor-General failed to provide a formal notice under Section 14(e) of the Public Audit Act. However, the court ruled written notice was unnecessary, as the Auditor had the authority to request documents under Section 14(b).
What’s Admissible in the Retrial?
While the full Audit Report remains inadmissible, key portions may be presented through direct witness testimony, including:
UTRI records and Audit Office findings based on them.
Statements made by the Lavulavus or their representatives to auditors.
Evidence verifying student enrollment claims.
The court clarified that documents obtained from UTRI were lawfully acquired and can be submitted if properly proven.
No Prejudgment on Merits
The Appeal Court emphasised it made no determination on the report’s conclusions or the alleged fraudulent amounts, leaving those matters for trial.
Ultimately, the appeal was partially allowed, permitting limited use of the Auditor’s findings, while the Lavulavus’ cross-appeal was dismissed.
