Lavulavu v R [2022] TOCA 17; AC 17 of 2021, AC 19 of 2021 (25 August 2022)

IN THE COURT OF APPEAL TONGA
CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

AC 17 & 19 of 2021

(CR 173 & 174 of 2018)

BETWEEN:

[1] AKOSITA LAVULAVU

[2] ETUATE LAVULVAU Appellants / Applicants

-v-

REX Respondent

Mr Lavulavu’s application for recusal

RULING

BEFORE: PRESIDENT WHITTEN QC LCJ
Appearances: Mrs Lavulavu in person
Mr J. Lutui DPP for the Respondent
And to: Ms A. Kafoa for Mrs Lavulavu
Hearing : 25 August 2022

Ruling: 25 August 2022

The application

1. This is an application by Mr Lavulavu for me to recuse myself from hearing the Appellants’ second bail application.
2. At the conclusion of the hearing, I delivered an ex tempore ruling dismissing the application. The following is from the transcript of that ruling, edited only as to form, not substance.

Background

3. On 4 June 2021, the Appellants were convicted after trial of three counts of obtaining a total of TOP$558,600 by false pretences contrary to s. 164 of the Criminal Offences Act.
4. On 30 June 2021, they appealed against their convictions.
5. On 2 July 2021, the Appellant were sentenced to six years imprisonment with the final year of Mrs Lavulavu’s sentence being suspended for two years on conditions. The appellants subsequently amended their Notices of Appeal to also appeal against their sentences.
6. Later that day, the Appellants filed an application for bail pending appeal. That application was heard by me on 6 July 2021 and on 9 July 2021, the application was dismissed: Lavulavu v R [2021] TOCA 26.
7. On 20 May 2022, the hearing of Mr Lavulavu’s appeal commenced. However, the Court considered, for a number of reasons, that his appeal should be heard with Mrs Lavulavu’s. Both were then scheduled to be heard in the second session this year commencing 3 October, which is now in approximately five week’s time.
8. On 7 July 2022, approximately one year after the first, both Appellants filed a second application for bail.
9. On 29 July 2022, during the course of submissions being filed for the second bail application, Mr Lavulavu filed an application for me to recuse myself from hearing that application.
10. During a directions hearing for the recusal application on 5 August 2022, Ms Kafoa, who appears for Mrs Lavulavu on her appeal, indicated that her client does not join in the recusal application. Notwithstanding, she has had to wait the outcome of this application before the second bail application can be heard.

Grounds

11. Mr Lavulavu contends that I should not hear the second bail application because I have a conflict of interest and/or that I may actually or presumably be biased against him. He relies on the following grounds:
    • (a) I presided over civil proceedings CV 1 of 2019 between ‘Unuaki ‘o Tonga Royal Institute and Mr and Mrs Lavulavu v Auditor General.
    • (b) I heard and refused the first bail application.
    • (c) I communicated with the Commissioner of Prisons in relation to a recent leave of absence granted to Mr Lavulavu.
12. Both parties filed details submissions which I have considered.
13. Yesterday afternoon, Mr Lavulavu also filed a synopsis of his submissions, and it is convenient for the purpose of this ruling that I recite, in summary, the gravamen of his complaints:
    • (a) it is not appropriate and just for the Lord Chief Justice to preside over the second bail application;
    • (b) the first bail application was denied by me; therefore, it is not fair and just for the same judge to hear the second bail application;
    • (c) Mr Lavulavu did not have an opportunity to appeal the decision of his first bail application because that application was heard at the jurisdiction of the appellate court, and ‘there is no court above the Court of Appeal here in the Kingdom of Tonga’;
    • (d) his only option to express his frustration with the ruling on the first application was to file a second bail application;
    • (e) my involvement in a complaint by a senior lawyer about Mr Lavulavu during a recent leave of absence from prison gives rise to a belief by Mr Lavulavu that my judgment will be affected in relation to the second bail application;
    • (f) the Commissioner of Prisons and Minister of Justice were the appropriate authorities with whom to raise the complaint, not me;
    • (g) that as soon as he received my email, the Commissioner of Prisons immediately revoked Mr Lavulavu’s leave of absence;
    • (h) the email contained statements such as “highly public interests” which is a ‘clear expression of a need’ by me to make a decision before ‘it gets out to the public interests’;
    • (i) Mr Lavulavu believes he his being targeted and ‘mostly treated unfairly’ by the judicial system compared to other prisoners;
    • (j) even though his civil case was withdrawn or discontinued, Mr Lavulavu believes that I should not preside over the second bail application because he understands from his former counsel that I suggested that the civil case be discontinued; and
    • (k) the issues and facts in the civil case are significant and similar to the criminal case which led to this appeal.
14. Mr Lavulavu also referred to the Tonga Judicial Code of Conduct Rules 2010, the decision of Lord Chief Justice Paulsen in Fa’oliu v Public Service Commission^[1] and other decisions referred to therein such as Saxmere v NZ Wool Board Disestablishment Company Limited (No.1)^[2] and in Re Pinochet^[3].
15. Mr Lutui also provided detailed submission and an affidavit of Ms ‘Aholelei in support of the Crown’s opposition to the application exhibiting a number of documents which are germane to the arguments of both parties. It is unnecessary for present purposes to refer further to the Crown’s submissions, the essence of which, will be referred to in the course of analysis.

Principles

16. In Latu v Lavulavu [2015] TOSC 46, in respect of another application by Mr Lavulavu for recusal, then Chief Justice Paulsen stated:

“[5] Mr. Lavulavu says that I am not impartial and that he is being deprived of his right to a fair hearing.
[6] The recognised grounds for recusal are founded on protecting public confidence in the independence and impartiality of the judiciary. The existence of bias in judicial decision-making is antithetical to public confidence in the integrity of the judiciary. In Muir v Commissioner of Inland Revenue [2007] NZCA 334 at [64] Hammond J said:
‘First, a Judge should not decide a case on purely personal considerations. Secondly, there should not reasonably be room for perception that the Judge will decide the case on anything but the evidence in front of him or her. Thirdly, a Judge must be in a position to consider all potentially relevant arguments. Fourthly, there may conceivably be a series of events or rulings which reasonably warrant an inference that the challenged Judge's perception is warped in some way.’
[7] It is an important principle that Judges are obliged to sit on any case allocated to them unless grounds for disqualification exist. As noted in Muir, at [35], the duty to sit exists to protect judicial independence by preventing parties from:
‘...manoeuvring ... to improve their chances of having a given matter determined by a particular Judge or to gain forensic or strategic advantages through delay or interruption to the proceeding’
[8] Judicial bias is a predisposition resulting from prejudice. There are two forms of bias. Presumptive bias arises where a decision-maker has a direct pecuniary interest in the outcome of a case. Apparent bias arises where a decision-maker has some other personal or professional relationship with a party or witness, or a prejudice against or preference towards a particular party or result, or a predisposition leading to a predetermination of the issues. Joseph Constitutional and Administrative Law in New Zealand (4th Ed, 2014 at 1076). Mr. Lavulavu does not allege that I have a direct pecuniary interest in the outcome of the election petition. I am therefore dealing with an allegation of apparent bias.
[9] The test to be applied in cases where bias is alleged has varied between jurisdictions. In England and Wales the question to be asked was found in R v Gough [1993] UKHL 1; [1993] AC 646 to be whether having regard to the relevant circumstances there is a real danger of bias on the part of the decision maker in the sense the he might unfairly regard (or have unfairly regarded) with favour, or disfavor, the case of a party to the issue under consideration.
[10] In Muir v Commissioner of Inland Revenue the New Zealand Court of Appeal rejected the test in R v Gough, of a real danger of bias, in favour of the Australian test of 'reasonable apprehension' of bias set out in Webb v R [1994] HCA 30; (1994) 181 CLR 41 at [9]. In that case the High Court of Australia said:
‘Of the various tests used to determine an allegation of bias, the reasonable apprehension test of bias is by far the most appropriate for protecting the appearance of impartiality. The test of "reasonable likelihood" or "real danger" of bias tends to emphasis the court's view of the facts. In that context, the trial judge's acceptance of explanations becomes of primary importance. Those two tests tend to place inadequate emphasis on the public perception of the irregular incident.’
[11] Again in a New Zealand context, in Saxmere v New Zealand Wool Board Disestablishment Co Ltd (No 1) [2009] NZSC 72; [2010] 1 NZLR 35, 37, Tipping J described the test in the following terms:
‘The crucial question ... is whether a fair-minded, impartial, and properly informed observer could reasonably have thought that the Judge might have been unconsciously biased.’
[12] As Scott LCJ noted in Tu'ifua and ors v The Public Service Tribunal and anor (Unreported, CV 45 of 2013, 13 June 2014, Supreme Court) there may well be little practical difference between these tests. For present purposes I consider the Saxmere test to be most advantageous to Mr. Lavulavu and will adopt that in consideration of his application.”

17. Those principles were repeated in summary by Lord Chief Justice Paulsen in Fa’oliu v Public Service Commission, ibid:

“[46] Whether or not a decision maker is biased does not depend upon that decision maker’s personal opinion but is to be assessed objectively. I adopt as the test that a judge/decision maker is disqualified if the circumstances are such that a fair-minded lay observer might reasonably apprehend that the judge/decision maker might not bring an impartial mind to the resolution of the question that the judge or decision maker has to decide (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; Porter v Magill [2001] UKHL 67, O’Neill No.2 v Her Majesty’s Advocate [2013] UKSC 36, Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72 and Joseph (supra) at 25.5(2)). It is the possibility not the probability of bias that is important. But the existence of bias is not to be lightly inferred. The functions of a decision maker cannot depend upon the suspicions of the ultra-sensitive, paranoid or cynical person (S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358, 374). For this reason the examination of an allegation of bias must be rigorous.
[47] The person alleging apparent bias must establish a causal connection between the perceived disqualifying interest of the decision maker and the apprehension of bias. This involves two steps namely (Saxmere (supra) at [81]):
(a) The identification of what it is said might lead a decision maker to decide a case other than on its legal and factual merits; and
(b) An articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.”

18. The principles enunciated in Fa’oliu were recently applied by the Full Court here in Cox v R.^[4]
19. At paragraph 16, the Court also referred to Order 6 rule 4 of the Tongan Judicial Code of Conduct 2010 in relation to apparent bias which provides that:

(1) A judge is disqualified from sitting if the circumstances are that they would lead a reasonable fair-minded and well-informed observer to conclude that there is a real possibility that the Judge would be biased.

20. As it was raised by Mr Lavulavu, Order 6 rule 3 defines presumed bias as:

(1) Bias is presumed and the Judge is automatically disqualified if he has a pecuniary or proprietary interest in the outcome of the case.
(2) Presumed bias includes the situation where the Judge has a substantial shareholding in one of the parties and the outcome of the case might be such as could realistically affect the Judge’s interest.

21. As Mr Lutui identified, Mr Lavulavu’s application did not demonstrated any basis for presumed bias, as defined, within any of the three grounds relied upon. I therefore treat the application as being based on alleged apparent bias.

The first ground

22. Proceeding CV 1 of 2019 commenced before I commenced office in the Kingdom. From September 2019, I case managed the proceeding until it was almost ready for trial, albeit it was necessary to defer any hearing of the matter until the hearing and outcome of the related criminal matter which is the subject of this appeal.
23. During the civil proceeding, I was not required to make, and did not make, any rulings in relation to any of the issues in dispute or in respect of Mr Lavulavu. On this application, Mr Lavulavu has not contended otherwise.
24. On 30 July 2021, CV 1 of 2019 was discontinued. The preamble to the orders made that day recorded the following:

“Mr [William] Edwards informed the court that the plaintiffs have agreed to discontinue the proceeding. He handed up proposed consent orders signed by Mr and Mrs Lavulavu providing that the proceeding be discontinued and that each party would bear its own costs...”

25. For that reason, I do not accept Mr Lavulavu’s submission that he was informed by his former counsel that the decision to discontinue that proceeding was the product of any suggestion from me.
26. Otherwise, I find that there is nothing in the management of that proceeding which supports the present application.
27. Accordingly, the first ground fails.

The second ground

28. During the course of oral argument, Mr Lutui submitted that there are some differences between the way in which the first bail application was presented and the second. That is perhaps not surprising. The detailed reasons for refusing the first bail application included repeated observations that the grounds advanced at that time were without the benefit of a transcript having been prepared or any analysis of the evidence below. In other words, the application at that time was under prepared.
29. A year later, and the second bail application has been filed. A cursory examination of the documents filed suggests a far more developed set of arguments, although I say nothing about the merits of those arguments and indeed as would have been apparent from my queries of the parties this morning, I have not yet turned my mind to the merits of that application.
30. Had the second application been identical to the first or if there had been no other change of circumstance, the second application would be susceptible to being struck out as an abuse of process. That such an application has not been brought by the Crown is a reflection of the fact that the second application must be regarded at this stage at least as being materially different to the first.
31. However, those observations also make plain that if, as Mr Lutui accepts, there are more developed arguments or other arguments to be considered on the second bail application, then my refusal of the first could have no impact on my consideration of the second.
32. For those reasons, the second ground also fails.

The third ground

33. The third grounds concerns certain communications with the Commissioner of Prisons. Given the somewhat unusual nature of this ground, it is necessary to recite those communications in full.
34. On 14 June 2022, I sent an email to the Commissioner of Prisons, Mr Semisi Tapueluelu, in the following terms:

“Dear Commissioner,
I have received a report from a senior lawyer that last Friday (the 10th), Mr Etuate Lavulavu attended a meeting at the offices of the Port Authority in relation to a company by the name of Inter Pacific Limited.
I bring this to your attention, in case you were not aware, as Mr Lavulavu is currently supposed to be serving a prison sentence.
If you were aware, then in order to ameliorate any uncertainty or loss of confidence in the administration of justice should this fact become more widely known (which is highly likely), could you kindly explain the basis upon which Mr Lavulavu was granted a leave of absence for this purpose. My reading of ss 46(1) of the Prisons Act, and the purposes specified for a leave of absence, such as medical examination, assessment or treatment; to attend an educational or training course; to participate in paid employment or community service; or compassionate purposes, makes it difficult to see how a business meeting might fall within the last of those prescribed, namely, 'any other purpose as the Commissioner thinks fit’.
As Mr Lavulavu’s appeal is currently before the Court of Appeal, I have copied in his lawyer, Mr Edwards SC, for his information.
Thank you in advance.”

35. On 20 June 2022, the Commissioner responded as follows:

“1. As per your email Re: Etuate Lavulavu dated 14 June 2022 this is to report on the above.
2. Mr Etuate Lavulavu was granted a leave of absence as per section 46(1)(e) from 6th to 11th June 2022 encompassing two main reasons (a) medical examination, assessment or treatment and (b) legal counsel request to work on his appeal and all things relevant to it.
3. His state of health is deteriorating according to specialist Dr Sione Latu Universal Clinic and Pharmacy. Mr Clive Edwards and Ms Alyssa Kafoa are new counsels of Mr Lavulavu requested more time to receive proper client’s instructions and review evidence for his appeal due in September.
4. In particular to your concerns Mr Lavulavu as per his LOA conditions requested permission to attend a meeting at Ports Authority Tonga for financial assistance which was granted. This is in reference to his meeting with Inter Pacific Limited which owes a debt to Mr Lavulavu.
5. Based on your email we issued a revocation order of his LOA and he was escorted back to Tolitoli Prison on the same day. He was given an opportunity to provide an explanation and we conducted a brief investigation of the case.
6. I talked to the PAT Chief Executive Officer Mr ‘Alo Maileseni about Mr Lavulavu’s involvement in this official “meeting” twice in separate phone calls. He asserted that it was not a board meeting nor an official meeting. It was a ten-minute follow-up on any debt owed by PAT to IPL. Mr Lavulavu’s presence was simply to inquire of the debt owed by IPL to him to pay for his appeal.
7. That in our conclusion that Mr Lavulavu did not breach his LOA conditions. Regrettably, the purpose of his LOA has been compromised simply because the senior lawyer did not report to my office nor Mr Lavulavu’s legal counsel as first points of contacts out of professional courtesy before seeking your good office’s intervention.
8. To protect the integrity of justice and efficiency of Tonga Prison’s department operation, Mr Lavulavu’s LOA are currently on hold for the reason that all his movements are noticeable as a high profile member in the Tongan community and senior lawyers are disregarding to report to our office first.
9. Should you have any further concerns please advise me in due course.”

36. The documents referred to were annexed.
37. On 22 June 2022, I replied:

“I thank the Commissioner for his report.
I reply as follows:
1. By way of information filed as at last week in relation to Mr and Mrs Lavulavu’s appeal:
(a) Mr Clive Edwards SC no longer acts for Mr Lavulavu;
(b) Mr Lavulavu is representing himself;
(c) Ms Kafoa now acts for Mrs Lavulavu only;
(d) applications to amend their respective Notices of Appeal have been filed and any opposition to those applications by the Crown is required to be filed by 30 June 2022;
(e) no other applications, as alluded to by Ms Kafoa in her email dated 5 June 2022 (annexure 5), have yet been filed.
2. In relation to Ms Kafoa’s email:
(a) it is unclear what is meant by “the extraordinary and compelling circumstances” of the Lavulavu’s appeal which distinguishes them from any other;
(b) her request does not mention any medical necessity;
(c) it appears the reason for the request was because Ms Kafoa “don’t have much time” with Mrs Lavulavu to work on her case, yet earlier in her email, Ms Kafoa requested leave for both Mr and Mrs Lavulavu (when she only acts for Mrs Lavulavu) so that they can attend her office “day to day” and sometime “after working hours”.
3. In relation to Mr Lavulavu’s response (annexure 10), it is unclear why a “follow up” on letters from Inter Pacific to the Ports Authority in relation to financial matters between those two entities required Mr Lavulavu to attend the office of the Ports Authority simply because he claims that Inter Pacific owes him money. One would have expected such matters to be dealt with by further correspondence or telephone and by Inter Pacific’s own lawyer.
4. It is not clear why a “Revocation Order” of Mr Lavulavu’s leave of absence was issued upon receipt of my enquiry if the reason for him being at the Ports Authority was known to the Prison in advance and had been approved (paragraph 9 of Mr Lavulavu’s response).
No doubt, the above matters have been considered by the Commissioner in the investigation of this matter.
5. However, for the purpose of future sentences and issues arising on appeals, and in order to better understand the policies and procedures at the Prison, I respectfully ask the following:
(a) In what circumstances is a prisoner with a medical condition eligible for a leave of absence?
(b) How does the food at the prison differ from a “regular diet” (as referred to by Dr Latu, annexe 2) so as to necessitate a leave of absence?
(c) Further to (b), for seemingly chronic conditions (such as asthma or peptic ulcer disease as in the case of Mr Lavulavu), where the attending medical practitioner repeatedly recommends ‘home care’ (as in the case Dr Latu), can a leave of absence be granted for the entirety of the sentence?
(d) On the basis of Mr Lavulavu’s visit to the Ports Authority being for the indirect purpose of procuring funds for his legal expenses on his appeal (in which he is now representing himself), can any prisoner be granted a leave of absence for the purpose of working to earn money for his/her legal expenses?
Malo ‘aupito.”

38. Later that day, the Commissioner wrote:

“Your Honour,
Many thanks for the response.
As needed to assist and have better understanding in future sentencing purposes and issues arising on appeals, information relevant to those questions will be provided without reservation. I agree!
Malo 'aupito”

39. No further information has yet been received from the Commissioner.
40. On 3 August, I directed that the above emails be provided to the parties for the purpose of this application to ensure full transparency.
41. In his submission, Mr Lutui characterised those exchanges and, in particular, the emails from me as:

“... simply to make enquiries and to better understand the policies of the prison for the purpose of future sentences and issues arising on appeal. It was not a complaint made against Mr Lavulavu. In relation to the apparent bias test and this ground Mr Lutui on behalf of the Crown submitted that the emails do not amount up to apparent bias and this is because the purpose of the Lord Chief Justice’s email was to ameliorate any uncertainties or loss of confidence in the administration of justice should the fact of Mr Lavulavu’s release on a leave of absence become more widely known.”

42. Mr Lutui submitted further that the emails:

“... would be seen by a reasonable fair-minded person as an act to ensure that public confidence in the independence and impartiality of the judiciary and the proper administration of justice is maintained. This is an essential and paramount duty of all judges.”

43. With respect, I agree. Mr Lavulavu did not contend otherwise.
44. The text of the emails clearly states that the purpose of those communications was to inquire of the Commissioner of Prisons about Mr Lavulavu’s leave of absence but more importantly how the Commissioner of Prisons exercised his discretion under s. 46 of the Prisons Act in relation to the granting of a leave of absence. The significance in the current context was that where applications for bail pending appeal are made, the availability of a leave of absence during the relevant period could be a relevant consideration, and it was important in my view, that the Court better understand how the Commissioner addressed such requests and how they are administered, that is, how prisoners are permitted to go about the community during leaves of absence.
45. There is nothing within that ground or the content of those communications which has led to any prejudice to Mr Lavulavu which is not within the domain of the Commissioner to consider and decide.
46. Therefore, in my view, those exchanges do not contain any expression on my part which reflect any prejudice or affect my ability to impartially consider and determine the second bail application. Further, I consider that a fair-minded and informed lay observer would not reasonably apprehend that, because of those communications, I might not bring an impartial mind to the resolution of the issues on the second bail application.
47. Accordingly, the third ground also fails.
48. Mr Lutui also drew attention to a practical matter. The delay in filing the second bail application means that there is now only five weeks or thereabouts before the hearing of substantive appeal. As the recent special session of this Court demonstrated, the availability of Judges of the Court of Appeal in Tonga is not always guaranteed or easily secured. I am the only full time and resident judge of appeal. That, of course, is not a deciding factor, but it is relevant.

Result

49. For those reasons, the application for recusal is dismissed.

NUKU’ALOFA	M. H. Whitten QC LCJ
26 August 2022	PRESIDENT

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^[1] [2017] TOSC 32
^[2] [2009] NZSC 72
^[3] R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte [2000] 1 AC 119
^[4] AC 4 of 2022, 23 May 2022 at [17].