A woman who murdered her teenage granddaughter has been given a harsher prison sentence on appeal.
Lorraine Smith in the High Court in Wellington. Source: rnz.co.nz
Lorraine Smith, 61, pleaded guilty to strangling 13-year-old Kalis Smith to death in the sleepout at her Whanganui home in 2019.
At her sentencing, in the High Court at Wellington, Justice Cook said Smith was a devoted grandmother, but she was suffering carer-burnout, looking after her three grandchildren and dealing with her own mental health problems.
“I accept that Ms Smith was suffering from severe emotional, physical and mental exhaustion in the months leading up to the offending. Her mental health had continued to deteriorate and she presented with symptoms of a moderately severe recurrent major depressive disorder,” he said.
“She was overcome with remorse in interviews and suffers from profound grief and guilt for the circumstances of her granddaughter’s death.”
Smith avoided a term of life imprisonment and was instead jailed for 12 years, with a minimum non-parole period of six years.
But the Court of Appeal quashed that.
It said when it looked at the circumstances of Kalis’ death, and her vulnerability, a life sentence was not manifestly unjust.
“We do not underestimate the significance of Kalis’s vulnerability, and that Ms Smith deliberately set out to kill her granddaughter in a distressing manner. Ms Smith’s offending involved a gross breach of trust,” the judgment said.
“We believe, however, that Ms Smith’s personal circumstances must be recognised with a compassionate response.”
The Court of Appeal sentenced her to life imprisonment with a minimum non-parole period of 10 years – the least restrictive sentence it could impose.
Jailed fraudster Akosita Lavulavu has finally resigned as Minister for Infrastructure and Tourism, Prime Minister Pōhiva Tu’i’onetoa told Parliament today.
Hon ‘Akosita Lavulavu
However, the Speaker, Lord Fakafanua, said he has not yet received any formal letter of resignation.
Parliament was awaiting a response from the government today to confirm queries from MPs and media about Akosita’s pay and entitlements.
The Speaker said they relied on information from the Minister of Finance this morning telling the House he had used his power under the Finance Acts and ordered her CEO to stop Akosita’s payment.
The details of the block on her pay and what entitlements she will still receive have not been made public.
“The answer from the government says the minister has resigned from Cabinet,” Lord Fakafanua told the House.
He said he was told a letter of resignation had been handed to Privy Council.
Lord Fakafanua said the House could only act after receiving written documents.
Akosita’s status as a former MP and Cabinet Minister would be confirmed when letters of resignation arrived at the Chief Clerk’s office, Lord Fakafanua said.
The revelation came after the Prime Minister refused to give a clear response to questions in Parliament last Thursday 8.
The Tongatapu 1 MP Siaosi Pōhiva asked the Prime Minister whether Akosita was still receiving her pay and entitlements.
Instead of replying yes or no Tu’i’onetoa again gave conflicting information about her situation.
He said in Tongan: “The government’s policy is if I am on leave I will be paid earned leave when that is being exhausted than I could be on leave without pay. There was no difference and I thought you already understood that.” Akosita was placed on leave on June 17 after she was convicted by the Supreme Court.
However, the Prime Minister repeatedly referred to Clause 23 of the Constitution which he used it to justify his refusal to take action against Akosita.
Because Akosita appealed her sentencing, Clause 23 allowed her to remain as Cabinet Minister until her appeal is heard, either in September 2021 or March 2022.
This meant Akosita would still have been a Cabinet Minister while she was in jail, would still have received her full pay and been able to control her two portfolios.
Resignation
It is understood the decision for Akosita to tender her resignation was made after her bid for bail was rejected on Friday last week.
A Member of Parliament told Kaniva News he believed her resignation was caused by pressure from the public and the media.
The former Cabinet Minister has been sentenced to six years in prison.
However, the Supreme Court suspended the last 12 months of her sentence for two years on condition that she comply with the probation officer, satisfactorily complete a life skills course and commit no offence punishable by imprisonment.
Her husband, who has a long record of court appearances and convictions, will serve the full six years.
Both defendants were convicted on three counts of obtaining money by false pretences.
They were found guilty of fraudulently obtaining money from the Ministry of Education and Training by lying in applications for money from the Technical Vocational Educational Training Grant about the number of students enrolled at their private college, the ‘Unuaki ‘o Tonga Royal Institute.
Mr Justice Cooper, presiding, said, he utterly rejected their claims that the money was used for the Institute.
Reputation
Meanwhile, Radio Australia has reported there is concern that the Lavulavu case could damage Tonga’s international reputation.
The international broadcaster quoted Tevita Motulalo, a senior researcher at Tongan think-tank, the Royal Oceania Institute saying the case could make discussions with the kingdom’s development partners awkward.
“Australia’s been very generous, these are hard-earned taxes from the people of Australia and to abuse it like that this is beyond description,” he said.
“It does affect our reputation and trustworthiness.”
FAKAMATALA FAKATONGA NOUNOU
Kuo fakafisi ‘a Akosita Lavulavu mei hono lakanga minisitaa’ neongo kuo te’eki ai fakahū ha tatau ‘ene tohi fakafisi ki Fale Alea he ‘aho’ ni. Ka kuo fakahā pe ‘e he palēmia’ kuo’ ne fakafisi. Na’e fakahā ‘e he Sea Fale Alea’ Looti Fakafanua ‘oku te’eki ai foki ke ne ma’u ha tohi fakafisi ‘a Akosita ‘i hono lakanga fakafofonga Fale Alea’. Kuo ‘i ai mo hono fakahā kuo ta’ofi ‘a ‘ene vahe’ ka ‘oku te’eki tuku mai ha fakamatala fakapepa ki he mītia’ mo Fale Alea foki ke ne fakamahino papau ‘a e fakaikiiki ki ai’. Ko e me’a ‘oku mahino’ ko e ngaahi nga’unu kotoa ‘eni ne toki fai ia hili ‘a e ‘ikai tali ‘ene tangi ke peila’ he Falaite uike kuo ‘osi’. Na’e talanga’i e vahe ‘a Akosita’ ‘i Fale Alea ‘i he uike kuo ‘osi’ Tu’apulelulu ‘aho 8 na’e ‘ikai pe ha tali mahino ia ‘a e palēmia’ ‘io pe ‘ikai ki hono fehu’i atu pe ‘oku kei vahe pee’. Na’a ne tali’aki ‘e ia ‘a hono fakamatala’i ‘o e founga livi ‘a e pule’anga’ ‘o pehē ‘oku ‘i ai ‘a e livi kae vahe pea ka ‘osi ia pea ‘e hoko atu ki he livi ‘ikai vahe. ‘I he’ene tali ko ‘eni he uike kuo ‘osi’ ne ne toutou ‘ohake pe ai ‘a e kupu 23 ‘a ia ne ne toutou pehē ki mu’a ‘oku makatu’unga ai ‘a e ‘ikai ke ne lava fai ha me’a ‘e taha kia Akosita kae ‘oua leva ke ‘osi ‘ene tangi’. ‘O ‘uhinga ia ‘e kei ma’u kakato pe ‘ene vahe pea kei minisitā pe ia mei Hu’atolitoli. Mei he uike kuo ‘osi’ pe ki he ‘aho ni Mōnite 12 kuo’ ne fakahā kuo fakafisi ‘a Akosita.
OPINION In the wake of the imprisonment of the fraudster Lavulavu couple, the debate about Prime Minister Pōhiva Tu’i’onetoa’s justification for keeping ’Akosita Lavulavu in Cabinet has come under closer scrutiny.
‘Akosita Lavulavu
The Prime Minister has cited Clause 23 as a reason for doing nothing, but the Clause reflects either questionable intentions or clumsy thinking by lawmakers at a time when some Nobles were accused of breaking the country’s firearms laws.
It also brings to light the fact that lawmakers disregarded the fact that the law had opened an opportunity for government leaders, especially the Speaker of Parliament and the Prime Minister to make their own interpretation or be given advice that might lead to injustice and favouritism.
It also mirrors the fact that the clause acts as a shelter for government representatives who committed serious offence which incurred prison sentences of no more than two years.
In my view any person who is convicted and sentenced by court should not be trusted and given an office in the government.
The best examples of the disgrace brought by Clause 23 were the dismissal of Finance Minister Lisiate ‘Ākolo in 2014, the refusal by the Prime Minister to sack Infrastructure Minister Akosita Lavulavu after she was jailed for five years last week, and a court decision to fine the Ha’apai governor Viliami Manuopangai Hingano for breaking the fisheries Act last year. He is still the governor of Ha’apai.
Governor Viliami Manuopangai Hingano
‘Ākolo’s dismissal
‘Ākolo was forced to resign after former Prime Minister Lord Tu’ivakanō accused him of being uncooperative and reluctant to implement a five percent salary rise for civil servants.
‘Ākolo denied the accusation and said he had been trying to figure out where to get the TOP$5 million needed for the pay rise
There were also reports at the time which claimed Lord Tu’ivakanō was not happy with ‘Ākolo after he queried him about his wife Robyn Kaho’s travel allowances.
Akosita, a jailed Cabinet Minister
Akosita was sent to jail on Friday after her bid for bail was denied. She was convicted and sentenced to five years imprisonment after she and her husband ‘Etuate Lavulavu were found guilty of plundering more than half a million pa’anga from the government school grant scheme.
Prime Minister Tu’i’onetoa has refused to take action against her, citing Clause 23 of the Constitution. He also said he could not do anything against Akosita because he feared she might take him and the government to court under the provisions of the same clause.
His response came after media asked him to clarify whether the disgraced Cabinet Minister was still being paid in full while she was in court and whether she was still getting full pay and receiving all her entitlements after she was convicted and sentenced.
Former Minister of Finance Lisiate Akolo
Tu’i’onetoa replied and told Parliament that if what he had done was not in line with Clause 23, he would be happy if somebody took him to court.
Ha’apai governor fined
The Governor of Ha’apai, Viliami Manuopangai Hingano was fined TP$12,500 for unlawful possession of 198kg of turtle meat.
A Supreme Court judge said the accused tried to hide the fact that he was a party to the proposed commercial sale of the uncertified meat of the endangered species.
Prime Minister Tu’i’onetoa, who has the prerogative to dismiss the governor, told the media he would not sack Hingano because his sentencing was not more than two-year imprisonment and, according to Clause 23 ,he was still entitled to the governorship.
Clause 23 is beyond embarrassing
It is totally wrong to use taxpayers’ money to pay someone who had been proved guilty of defrauding the government’s money or breaking the law.
The only proper course of action is for the Prime Minister to ask for their resignation. If they appeal their sentence and are successful, they can be restored to their government position and their entitlements and allowances paid back.
Looking at ‘Ākolo, Hingano and Akosita’s cases, it is a shame to see that ‘Ākolo, who appears to have not broken any law had no right under the Constitution to fight for his right to keep his Ministerial position while Akosita and Hingano who committed serious crimes were effectively rewarded by clause 23.
‘Ākolo was harshly treated and despite giving clear clarification on media about why he thought Lord Tu’ivakanō was wrong, he was dismissed. At the same time Akosita has a knight in shining amour in the shape of the Prime Minister, who seems to be doing his best to keep her safe from all pressures for her to resign.
It was embarrassing to see a jailed fraudster was still being regarded as a Cabinet Minister and is still being paid by the government.
It was also embarrassing to see that the person whose only constitutional duty was to make sure the people of Ha’apai islands obeyed the law, broke the law himself. The situation discredited the government and the governorship.
Clause 55 of the constitution clearly lays out the sole duty of the governor.
It said: “It shall not be lawful for a Governor to enact any law but he shall be responsible that the law is enforced in his district”.
Revising Clause 23
I believe that at the time of the re-enactment, the Noble MPs and the noble-led government had serious concerns about how their entitlements could have been affected by the new and revised laws.
It might be justifiably questioned whether this influenced what happened to Clause 23. Some might argue that the revision led to today’s situation.
The enactment of the revised Clause 23 came in 2013, a year after Lord Lasike was removed as Speaker and member of Parliament after he was convicted of possessing ammunition without a licence. The Appeals Court overturned his sentence. He then secured his title, his salary as a noble of the realm, his land entitlements, but not his parliamentary chairmanship.
The revised clause came into effect three years after Lord Tu’iha’ateiho was fined after possession of an illegal firearm. In December 2010 Lord Tu’ilakepa was charged and later convicted on various counts of illegal firearms and ammunition possession.
The noble-led government first attempted in 2011 to reduce penalties for possession of firearms offences from nearly $US3000 to just over $US500 and the term of imprisonment from five years to one year, but the Late King George Tupou V blocked the move in 2012.
Clause 23 must be fixed
Clause 23 should be fixed immediately. I would suggest it either be modified to avoid the apparent contradiction with Clause 51 (3) (a), which allows the Prime Minister the prerogative to sack a cabinet minister, or remove the 2013 revision and add new text to allow a government representative who is sentenced but successfully appeals their conviction to be restored to their government posts and receive their previous salary and entitlements. It should also be revised to make sure that when a government representative is convicted they should be removed from their position and permanently barred from future appointments.
Clause 23 currently says: “No person having been convicted of a criminal offence and sentenced to imprisonment for more than two years, shall hold any office under the Government whether of emolument or honour nor shall he be qualified to vote for nor to be elected a representative of the Legislative Assembly unless he has received from the King a pardon together with a declaration that he is freed from the disabilities to which he would otherwise be subject under the provisions of this clause.
Provided that the operation of this clause shall be suspended in any case until the expiration of 42 days after the date of the conviction; and in cases where notice of appeal or leave to appeal is given within 42 days after the date of conviction, until the determination of the appeal; and if the conviction is quashed on appeal or the sentence reduced to no more than 2 years imprisonment then this clause shall not have effect”.
FAKAMATALA FAKATONGA
Kuo hoko ‘a ‘etau konisitūtone’ ko hotau fakamā’anga pea kuo taau ke fakalele’i ‘a e kupu 23 ne toki fakalahi he 2013 ke fakapapau’i ‘e to’o ‘osi ‘aupito ‘oua na’a toe ‘oange ha lakanga minisitā ki ha taha kuo fakahalaia’i he fakamaau’anga’ tatau ai pē. Ko e ngaahi lakanga pelepelengesi taha ‘eni ‘o e fonua’ pea ‘oku taau ke ‘oua na’a lave ai ha taha kuo fakamo’oni’i fakalao kuo faihia. Ke fakanounou ‘a e talanoa’ ni ‘i hono ‘oatu ‘i he lea fakaTonga’ ‘oku peheni. Kapau te tau sio ki he keisi lalahi e tolu ko ‘eni. Ko hono kapusi ‘o Lisiate ‘Ākolo ko e minisitā pa’anga ‘o e 2014 tu’unga he pehē na’e ‘ikai ke ne fie fakahoko e tu’utu’uni ‘a e Kapineti’ ke fakalahi pēseti ‘e 5 e vāhenga ‘o e kau ngāue fakapule’anga’, fakahalaia’i ‘a e minisitā ko Akosita Lavulavu ki hono ma’u ta’etotonu ha pa’anga ‘ova he vaeua miliona’ pea mo e kōvana Ha’apai ko Viliami Hingano ko hono ma’u mo e kakano’i fonu lahi ta’efakalao. Ko ’Ākolo ne ‘ikai ke ne maumau’i ‘e ia ha lao pe konisitūtone pe fakahalaia’i ia ‘i he fakamaau’anga’. ‘Osi ange ‘ikai ha kupu ia he konisitūtone ke ne kumi ai ‘ene tonuhia’ ‘o iku ai ki hono tuli ia mei he kapineti. Taimi tatau, faihia pea fakahalaia’i ‘a e ongo ua ia ko ē, Akosita mo Hingano pea haofaki’i kinaua ia ‘e he kupu 23 ‘o e konisitutone’, ‘o ‘atā ai ‘a Akosita ke kei vahe pē hili hono fakahalaia’i’ a’u ki he’ene hū ki Hu’atolitoli ‘o kamata ngāue pōpula ai tu’unga pe hono ngāue’aki ‘e he palēmia’ ‘a e kupu 23 ‘a ia ‘oku faka’atā ai ke ne kei ma’u pe hono tu’unga minisitaa’ mo vahe kae ‘oua leva kuo ‘osi ha ‘aho 42 pea mo mahino ‘ene tangi’. Fakapale’i e ongo faihia’ ia kae tautea’i e minisitā ia ne ‘ikai ha’ane hia’. ‘Oku fakamā fau foki ke tau vakai atu ki ha tokotaha kuo ngāue pōpula pe mo kei vahe mo lau ‘oku kei minisitā pe ia he pule’anga ‘o ‘Ene ‘Afio’. ‘Oku toe fakamā foki ke kei kōvana ‘a Hingano hili ko ia ko hono fatongia’ ‘oku taha pe pea ‘oku tuhu’i mai ‘e he kupu 55 ‘o e konisitūtone’. ‘A ia ko e pau ke ne fakamamafa’i ki hono kakai Ha’apai ‘a e pau ke nau tauhi ‘a e lao’. Pe ‘e fakatonuhia’i fēfē ha’ane fakahinohino e kakai’ ke muimui ki he lao kuo ne toe maumau’i pe ia ‘e ia’. ‘Oku totonu foki ke fakatokanga’i ko hono fakalahi ko ‘eni ‘o e kupu 23 ne fai ia ‘i he fo’i vaa’i taimi ne lahi lahi ai hono puke ‘o fakahū e kau nōpele ‘a ‘Ene ‘Afioo’ ‘i hono maumau’i ‘a e lao ki he me’atau’ mo e mahafu’. Ko Looti Tu’ilakepa mo e Tu’iha’ateiho’ kae pehē kia Looti Lasike ne puke kinautolu ‘i he 2010 ko e ma’u mo e mahafu ta’elaiseni. Ne iku ‘o mo’ua totongi pa’anga ‘a Tu’ilakepa mo Tu’iha’ateiho kae tangi ‘a Lasike pea tali ‘e he Fakamaau’anga Tangi’ ‘ene tangi’’o hao ai ia ‘i hono tautea’. Ne toe feinga foki ‘a e kau nōpele mo e pule’anga ne taki ‘e ha nōpele’ he ‘aho ko ia’ ke liliu e konisitūtone’ ke holoki e tautea ‘o ha taha ma’u mo ha mahafu ta’elaiseni ka ne ‘ikai tali ia ‘i he 2012 ‘e Kingi Siaosi Tupou V. Kaekehe, ‘e lava ke fakatonuhia’i ‘i he me’a ne hoko ko ia’ hano fehu’i pe na’e uesia nai ‘a e fokotu’utu’u ‘a hono toe fakalahi ‘o e kupu 23 he ‘aho ko ia ‘e ha feinga ke malu’i mo ha manavasi’i ‘a e houe’iki’ ki hano uesia ‘a ‘enau totonu fakalao he ngaahi puta faka’ilo mai ko ia’. Kuo taimi ke fakalele’i foki ‘a e kupu 23 ke ta’ofi ‘ene fakaava ‘a e faingamalie ke fai ai ‘e he ‘Eiki Sea ‘o e Fale Alea’ mo e ‘Eiki Palēmia’ ha’ana fa’ahinga faka’uhinga pe ma’u ha fale’i ‘e ala fakatonulea’i kuo aafe ki he ta’efakamaau totonu mo filifilimānako ‘o hangē ko e me’a tonu kuo hoko’.
Family, kāinga and friends gathered in south Auckland to mourn the death of a 20-year-old man who was killed in a car crash in Tonga.
Sione Uilifi Jr Lapu’aho, the victim. Photo/Facebook
The afternoon prayer vigil was for Sione Uikilifi Jr Lapu’aho of Vaini who was the passenger in a car which crashed into a power pole at Malapo near Hu’atolitoli Prison last Sunday July 4.
The driver, a 25-year-old man from Vaini has been charged with reckless driving causing death.
Police said initial indications are that speeding and alcohol were factors in this fatality. Police also found what appears to be methamphetamine on the driver.
The Papatoetoe gathering for the family in New Zealand was to allow the kāinga and friends to share their sweet memories of the deceased, a notice said on Facebook.
The victim’s father Sione Uikilifi Lapu’aho snr. Photo/Screenshot
The victim’s father, Sione Senior, is currently in New Zealand and he attended today’s prayer vigil which was livestreamed on Facebook.
Sione Snr was emotional and said he never punished his son.
He told mourners he wanted to send his love to him.
“Most of you here have already known that I am the father of this boy,” he said.
He said he was the only son and eldest in his siblings.
A video shows jailed ‘Etuate Lavulavu unloading what appear to be luggage and a roll of Chinese floor mat from a prison pickup van.
‘Etuate Lavulavu unloading stuff from the trunk of a pickup vehicle outside Hu’atolitolu prison. Photo/Screenshot
A prison officer can be seen helping ‘Etuate carrying the stuff inside the prison compound.
The video appeared to have been taken shortly after ‘Etuate and her jailed wife Cabinet Minister Akosita Lavulavu’s bail application had been denied in the Supreme Court in Nuku’alofa this morning.
The video was uploaded and shared on Facebook this morning.
Rejecting their bail application, Chief Justice Michael Whitten said: “I am not satisfied that the applicants have demonstrated reasonable prospects of success on this ground of appeal”.
He concluded that the court did not consider it fit to admit them to bail pending their appeal.
“Accordingly, the applications are refused”.
‘Etuate told Filokalafi ‘Akau’ola of Talaki Online outside court he was still innocent, and they are appealing their sentencing.
The appeal meant Akosita is still the Minister of Tourism, Infrastructure and Transport while she is in jail according to clause 23 of the constitution.
Clause 23 of the constitution says: Disabilities of convict. “No person having been convicted of a criminal offence punishable by imprisonment for more than two years, shall hold any office under the Government whether of emolument or honour nor shall he be qualified to vote for nor to be elected a representative of the Legislative Assembly unless he has received from the King a pardon together with a declaration that he is freed from the disabilities to which he would otherwise be subject under the provisions of this clause. (Act 8 of 1961.).
“Provided that the operation of this clause shall be suspended in any case until the expiration of 42 days after the date of the conviction; and in cases where notice of appeal or leave to appeal is given within 42 days after the date of conviction, until the determination of the appeal; and if the conviction is quashed on appeal or the sentence reduced to no more than 2 years imprisonment then this clause shall not have effect”.
Clause 51(3)(a) has given the prime minister power to dismiss a Cabinet Minister at his pleasure.
It said: “A Minister shall retain his position as Minister until – (a) his appointment is revoked by the King on the recommendation of the Prime Minister or in accordance with clause 50B;”
As we have reported previously, Prime Minister Pōhiva Tu’i’onetoa’s insistence, based on Clause 23 of Tonga’s Constitution, that he cannot sack Akosita, was unfounded in many respects.
In fact, his power given by Clause 51 (3) (a) means he can do something, but he refused to do it and unfortunately, he appears to have attempted to mislead the public about this clause.
Clause 51 (3) (a) has two independent phrases divided by the conjunction “or” which means it is either the Prime Minister who can recommend to the king that a Minister’s appointment be revoked, or the minister can be revoked according to Clause 50B.
In his recent response to media in a livestream talk show the Prime Minister appears to have intentionally avoided talking about the first phrase and claimed his power in clause 51(3)(a) can only be exercised according to clause 50B.
The prime minister told Parliament this week that he was given advice by a legal adviser.
Asked by Opposition Leader Semisi Sika whether Akosita was still being paid the prime minister did not give a clear response.
He said he “will stay with Clause 23 of the Constitution”.
He is being heavily criticised for his refusal to take action against Akosita.
Chief Justice Michael Whitten has denied the bail application by jailed Cabinet Minister Akosita Lavulavu and her husband Etuate Lavulavu.
Minister of Infrastructure ‘Akosita Lavulavu and husband ‘Etuate Lavulavu. Photo/Akosita Lavulavu (Facebook)
In his 18 pages ruling Mr Whitten said he was not satisfied that the Lavulavus “are obvious or even reasonable”.
The Chief Justice said: “I am not satisfied that the applicants have demonstrated
reasonable prospects of success on this ground of appeal”.
He concluded that the court does not consider it fit to admit them to bail pending their appeal.
“Accordingly, the applications are refused”.
Condemned by the Supreme Court as dishonest and deceitful, the Lavulavus have been sentenced to five and six years respectively for their part in defrauding the government school grant scheme.
They were found guilty of fraudulently obtaining a total of $558,600 by false pretences, from the Ministry of Education and Training by lying in applications for money from the Technical Vocational Educational Training Grant about the number of students enrolled at their private college, the ‘Unuaki ‘o Tonga Royal Institute.
Judge Cooper, presiding, described their crime as “the worst sort of dishonesty.”
“The conduct of these defendants would be disgraceful in anyone, but for a member of cabinet, and a man who used his political connections and position to facilitate these frauds, goes beyond just criminally reprehensible,” he said.
Appeal grounds
The identical Notices of Appeal run to some 20 pages consisting of an apparent 14 grounds, many with numerous ‘particulars’ which, in combination, raise various questions of law, fact and mixed law and fact.
The couple through their lawyer William Edwards Jnr made 14 claims including that the trial judge erred in applying the law of agency and finding that Mr Lavulavu was liable for the representations made by Mrs Lavulavu on all three counts;
They also claimed they were both liable for the acts of a Unuaki ‘o Tonga Royal Institute employee who prepared and signed the TVET application for that period.
In their appeal they claimed that Mr Lavulavu knew of the falsity of the applications by reason only that, his wife, Mrs Lavulavu knew of the falsity.
It said the trial judge misstated certain of the evidence, in a manner prejudicial to the appellants and thereby demonstrated bias towards them.
“The conduct of the trial was therefore unfair and the verdicts are therefore unsafe and unreliable”.
Law of agency
Mr Whitten said Mr Edwards’ submission that the trial judge erred in applying the law of agency lies at the heart of grounds 1, 2, 6 and 7.
Mr Edwards did not make any submission in relation to the authorities cited by the trial judge which illustrated the application of agency principles.
Mr Edwards did not cite any authority in support of his submission that the law of agency is not applicable in fixing criminal liability in Tonga.
“Despite its title, the operative provisions of the Civil Law Act do not limit or exclude the importation of the English common law in criminal proceedings”.
FAKAMATALA FAKATONGA
‘Ikai tali ‘e he ‘Eiki Fakamaau Lahi ‘a e tangi ‘a e ongo Lavulavu’ ke peila kinaua ki tu’a ‘o tali ‘ena tangi. Kuopau ai ke na ngāue pōpula pe mo toki fakahoko ai ‘ena tangi’ kapau te na kei fie tangi ai pe. Ko e taha e makatu’unga ‘oku ‘ikai tali ai he ‘oku ‘ikai tui ‘a e Eiki Fakamaau Lahi ‘e ‘i ai ha ola e tangi ‘a e ongo Lavulavu. ‘I he kupu 4B ‘o e lao ‘a Tonga ki he Peila’ ‘oku fakamahino ai ‘e lava ke peila pe tuku ange ha taha ki tu’a kuo tautea ngāue pōpula ke tatali ai ki ha’ane tangi ‘i hono tautea’ kapau ‘e fiemālie ‘a e fakamaau’anga’ ‘e iku tali ‘a e tangi ‘oku fakahoko’. Na’e fakahā ‘e he loea ‘a e ongo Lavulavu’ ki he ‘Eiki Fakamaau Lahi’ ko e makatu’unga tefito ‘eni ‘a e kole peila ‘a e ongo Lavulavu he ‘oku’ na tui ‘e tali ‘ena tangi ‘e fakahū atu’. Ka ‘i he vakai ‘a e ‘Eiki Fakamaau Lahi Mr Whitten ‘e ‘ikai ha ola ia ‘o e tangi ko ‘eni’. Na’e makatu’unga ‘eni he’ene vakai’i ‘a e ngaahi poini ‘e 14 na’e fakahū atu ‘e he loea’ ‘o pehē ko e ‘uhinga ia ‘o e tangi’. Kau heni ‘a e pehē na’e hala ‘a e tu’utu’uni ‘a e Fakamaau Lahi ko Cooper, ‘ikai tonu ke ngāue’aki ‘a e law of agency pe ko e lao ‘eni ‘oku’ ne faka’atā ha fengāue’aki ‘a ha toko ua pea ko e tu’utu’uni pe ko ē ‘e iku ki ai’ ‘e lau pe ko hona loto kotoa ia’. Na’e ‘ikai tui ‘a Whitten ki he taukapo ko ‘eni mo ne pehē ne tonu pe tu’utu’uni ‘a Coopper mo hono tautea’i ‘o e ongo Lavulavu pea ‘oku ‘atā pe ke ngāue’aki ‘i Tonga ‘a e law of agency. ‘Oku ‘i ai foki e kehekehe he peila pe tauhi fakalao ki tu’a ha taha kuo fakahalaia’i pea tatali ke hilifaki hono tautea’ mo ha taha kuo tautea’i ka kuo’ ne kole peila ke tatali ai ki ha’ane tangi. Pehē ‘e he ‘Eiki Fakamaau Lahi’ ko e tali ko ia ha taha kuo tautea’i hangē ko e ongo Lavulavu’ ke peila ki tu’a ‘e ala lau ia ‘e he kakai kuo fepaki ‘a e tu’utu’uni ‘a e fakamaau lahi’ ken a ngāue pōpula’ mo e tu’utu’uni ke peila kinaua ki tu’a’. Hangē ia kuo na ‘atā ai kinaua ke na laka tau’atāina holo he komiunitii’ lolotonga kuo ‘osi tautea ngāue pōpula kinaua. Na’e ikai tali ‘e he Eiki Fakamaau Lahi ‘a e poini ‘e 14 ne taukave’i ‘e he loea ‘a e ongo Lavulavu kae ai e pehē na’e hala ‘a e Fakamaau ne fai tu’utu’uni he hopo’.
The Tonga Rugby Union CEO says despite the difficulties the Covid-19 pandemic has brought to the rugby schedule, they’re grateful for the support of officials.
Peter Harding, new CEO of Tonga Rugby Union Photo: World Rugby
TRU is thankful to the government in Tonga for their help in paying the players, especially as the players have had to pay for quarantine costs in New Zealand.
CEO Peter Harding said it was important that Tonga participated in the World Cup qualifiers to ensure they had a chance to compete for a spot in their berth in the 2023 tournament in France.
“We’re playing rugby in a pandemic, no one has ever gone through this before, so it’s going to be difficult to manage logistics of rugby and so forth.
“We knew what we were getting ourselves into and we agreed to it because that’s the only way we could have played these world cup qualifiers.
“if we didn’t play these qualifiers now, when were we going to play them? It would’ve meant potentially in the November window, which would mean opportunity for other test matches as well.
Harding expressed his gratitude to New Zealand Rugby and World Rugby for their support.
“They’ve been very good especially as the game is not a normal situation now.
“Every single person is scrambling in the best way they can.
“We put our hand up and accepted these conditions, so we’re not going to complain,” he said.
Harding explained that when a team plays a test match against a country in that’s nation’s home grounds, they are responsible for paying the accommodation of the away team.
“We made sure with New Zealand Rugby that our accommodation was covered by them when we played the All Blacks.
“However, with our upcoming match against Manu Samoa, I have signed on behalf of Tonga a memorandum of understanding that we would both look after the costs of our own teams.
“When you play in a World Cup qualifier, you have to fund your own team,” he said.
Manu Samoa will battle against Tonga’s Ikale Tahi in Auckland’s Mt Smart Stadium on July 10 and in Hamilton a week later.
The winner will secure their berth in the 2023 tournament in France, while the loser will play-off against the Cook Islands, with the winner advancing to the Asia/Pacific Playoff.
There is one new Covid-19 case in Fiji who is a Tongan woman.
She is the second known patient to be identified as Tongan after a Tongan USP student was previously infected and is currently recovered in hospital, reports from the Tongan community in Fiji said.
Sina ‘Aholelei Kami in Suva said these are the only cases they have been made aware of.
She and the ‘Api Tonga Committee are making contacts with the students at USP.
“They are doing fine,” she told Kaniva News this evening.
Meanwhile, Fiji Prime Minister Frank Bainimarama has announced all civil servants, and private sector employers and employees will be required to have a Covid-19 vaccination if they are to continue working.
Bainimarama made the announcement on Thursday night as the island nation grapples with its outbreak.
“Civil servants who have not received their first dose of the vaccine must go on leave from Monday next week,” he said in a live video on Facebook.
Those employees cannot come back to work unless they have at least received their first dose of the AstraZeneca vaccine. They must have that first dose by August 15, 2021.
On Wednesday, Fiji recorded 791 new daily Covid-19 cases and three deaths in a 24-hour period. To date, 42 people have died in Fiji since the pandemic began, and of those, 40 deaths have been during this year’s April outbreak. A total of 7940 cases have been recorded in Fiji since the pandemic began.
Fijians spreading false information about the coronavirus in Fiji will feel the full brunt of the law, police have warned.
.. Photo: Facebook/Fiji Police
The reminder of the consequences of spreading misinformation comes after a church minister appeared in court today charged with breaching the country’s Health Act.
The 48-year-old pastor was accused of creating public anxiety by posting anti-vaccination comments on social media.
According to police, he posted a series of short videos on Facebook which they said had created public alarm.
The posts called on people not to get vaccinated against the coronavirus because the “vaccine is evil,” a police statement said.
Health Secretary James Fong said he was concerned at the misinformation circulating on social media about Covid-19.
He said these false comments only hampered the ministry’s efforts to get Fijians vaccinated against the deadly virus.
“As of July 6th 329,837 adults in Fiji have received their first dose of the vaccine and 56,974 have received their second doses,” Dr Fong said.
“This means that 56 percent of the target population has received at least one dose and 9.7 percent are now fully-vaccinated nation-wide.”
He said people could check the ministry’s vaccine dashboard to find real-time data on first-dose and second-dose numbers at the national, divisional and sub-divisional levels.
Dr Ram Raju. Photo: Supplied
College slams colleague
Meanwhile, the Fiji College of General Practitioners has criticised a video posted on social media by one of its members against the Covid-19.
College president Ram Raju said the general practitioner’s post on social media backs conspiracy theories and myths about the coronavirus and is not supported by any scientific evidence.
Dr Raju said the doctor’s comments on the adverse side effects of the AstraZeneca vaccine are being “misconstrued”.
The video has since been removed by Facebook administrators with a notice issued that the content was not factual.
Dr Raju said the GP’s comments did not reflect the views of the college.
“We do not condone any member spreading false information to the public,” he said.
“It is a time for all of our healthcare workers to unite and educate the public about the truth and dispel all fears.
“Doctors are seen to be community leaders who should therefore exercise extreme care and restraint in posting any news on social media.”
Dr Raju said the College of GPs supports the vaccination program rolled out by the Health Ministry.
He said they had held seminars on the subject well before the first case of Covid-19 was identified in Fiji in March last year.
“All our doubts were dispelled. At the moment, vaccination is the only method which can save lives against Covid-19.
“It’s just like giving vaccination for a host of other diseases to save lives, like measles, diphtheria, tetanus, pneumonia, hepatitis, etc.”
Dr Raju said there were some vaccination side effects that were to be expected.
“But getting Covid-19 is not a joke and these conspiracy theories need to be laid to rest.
“By vaccinating you are protecting yourself, your family and the population of Fiji.”
Residents in Suva at the Covid-19 Drive-Through Vaccination Centre. Photo: Facebook/Fiji govt
Vaccination drive-through opens
Meanwhile, the public is advised that the covid vaccination drive-through centre at Suva’s Albert Park will remain open.
The initiative was started by the Suva City Council and the Health Ministry.
The council’s senior executive, Isikeli Tikoduadua, said they hoped the campaign would encourage more people to get vaccinated.
He said within the first hour, over 150 people had been through the gates and got their first jab.
“What it does, is you are in your own bubble which is a good thing. Second is for those who are physically challenged this is an opportunity for them not to get out but to get vaccinated inside their vehicle.”
“This will actually tell us how effective this drive through is, and this is very exciting, very good way of vaccinating, this is the first time something is happening like this in Fiji, first ever drive-through. And it looks like a successful one.”
According to a post on the Fijian Government’s Facebook page, the ministry and police will work together to ensure that people accessing the drive-through site are able to go home during the curfew hours, should there be any delay.
The post stated that vaccination teams would take down details of people arriving at the drive-through facility.
It said these details would then be communicated to the police team at the park checkpoints for verification and clearance.
The nation-wide curfew, from 10pm to 4am, has been in place since the latest outbreak started in April.
Police arrested 84 people over the last 24-hour period for failing to wear a mask in a public place within a containment or lockdown zone.
Acting Police Commissioner Rusiate Tudravu said this was part of the police step-up in enforcing the mandatory wearing of masks and other health and curfew restrictions.
A total of 98 cases were reported for curfew order breach and health restrictions, he said.
Fiji now has over 6000 active cases in isolation and more than 40 deaths reported.
Forgery charges against the fraudster Lavulavu couple have been dropped in a move that shocked the landlord’s lawyer.
‘Etuate Lavulavu and Minister of Infrastructure Akosita Lavulavu. Photo/Facebook
Cabinet Minister Akosita Lavulavu and her disgraced husband Etuate Lavulavu had been prosecuted with jointly and knowingly submitting a forged document to the Ministry of Lands and Survey with the intention of changing the land lease number 8660 from business lease to quarry.
The information was contained in a court document seen by Kaniva News.
The forged document appeared to have been signed by the landlord, Sione Tunufa’i Tui, but Tui did not sign, know or agree with the content of the document allegedly forged by the Lavulavus, the court document said.
Police Magistrate Loupua Kulī dismissed the charges on June 21, about two weeks before the Lavulavus were sentenced in the Supreme Court for plundering more than half a million pa’anga from the government school grant scheme.
The move has shocked Tui’s lawyer, Vili Mo’ale. Mo’ale told Kaniva News this afternoon July 7 the Magistrate’s decision was the first time he knew the prosecution had been dropped.
He said he filed the private prosecution on November 17, 2020 and it was processed to be heard in court but was delayed so the Lavulavus’ sentencing could be processed first.
Mo’ale said he just found out that ‘Etuate and Tui had agreed without him being involved to drop the prosecution.
“A decision was made to dismiss it and nothing can be done,” Mo’ale said.
He said he later repeatedly attempted to contact Tui, but to no avail.
“Even today I have not heard from Tui. I was told he has left for Vava’u”.
‘Etuate contacts Tui
As we reported previously, we interviewed Tui following the revelation that he had prosecuted the Lavulavus.
In that interview, Tui said ‘Etuate chased him after he took legal action against him and his wife, but he managed to avoid him as he did not want to talk to him.
Asked why ‘Etuate was searching for him Tui, said ‘Etuate may have wanted to negotiate about dropping the prosecution.
We recently contacted Tui to follow up on the case, but he did not answer his phone.
Sentencing
Condemned by the Supreme Court as dishonest and deceitful, the Lavulavus have been sentenced to five and six years respectively for their part in defrauding the government school grant scheme.
Judge Cooper, presiding, described their crime as “the worst sort of dishonesty.”
“The conduct of these defendants would be disgraceful in anyone, but for a member of cabinet, and a man who used his political connections and position to facilitate these frauds, goes beyond just criminally reprehensible,” he said.
Apart from an earlier conviction in the United States 1990s, he was sued by Late Prince Tu’ipelehake in 2000 for damages and unlawful cultivation of his land. Chief Justice Ward ordered Lavulavu to quit the land and pay $7,905 damages. The judge was scathing about aspects of Lavulavu’s testimony during the trial, saying: “I felt he was willing to say almost anything that seemed to suit the moment with a repeated disregard for the truth.”
FAKAMATALA FAKATONGA
Ne fai pe hono tuli holo ‘e ‘Etuate Lavulavu ‘a Sione Tunufa’i Tui he feinge ke meesi ‘o tamate’i hona faka’ilo ki he tohi nima loi’, ‘o ma’u pea neongo na’e tukupā ‘a Tui he’ikai te ne tali ha kole ‘a ‘Etuate ke tamate’i ‘a e tikite’ ka ne iku pe ‘o tukulolo ‘a Tui he ‘aho 15 ‘o Sune, toe ia e uike ‘e ua pea tautea ngāue pōpula ‘a e ongo Lavulavu ki hono ma’u ta’etotonu ‘a e pa’anga ‘ova he vaeaua miliona’ mei he pa’anga tokoni’i ‘o e ngaahi ako’ ‘e he pule’anga’. Na’e faka’ilo foki ‘e Tui ‘a e ongo Lavulavu ki he’ena fa’u ‘a e tohi fakamo’oni loi ‘o ‘ave ki he Savea ke liliu’aki ‘a e lisi ‘o hono ‘api mei he pisinisi’ ki he keli’anga maka. Na’e pehē ‘e Tui hala ke ne fai e tohi pea na’e ‘ikai fakamo’oni ia ai. Kaekehe, kuo fakahā ‘e he loea ‘a Tui ki he Kaniva’ ne ne ‘ohovale ia hono ui e hopo’ he ‘aho 21 māhina kuo ‘osi’ ‘o fakahā ai ‘e he fakamaau polisi’ Loupua Kulī kuo ‘osi felotoi ‘a Tui ia mo e ongo Lavulavu ke tamate’i ‘a e hopo ‘oua toe hoko atu. Na’e ‘ikai ‘ilo e loea’ ki heni pea fiu ia he toe feinga atu kia Tui ‘ikai toe tali mai pea ko e me’a ne ne ‘ilo’ kuo ‘osi mavahe ia ki Vava’u.
