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Court of Appeal of Tonga |
IN THE COURT OF APPEAL OF TONGA AC 17 of 2021
CRIMINAL JURISDICTION AC 19 of 2021
NUKU'ALOFA REGISTRY (CR 173 & 174 of 2018)
BETWEEN ‘AKOSITA LAVULAVU
Appellant in AC 17 of 2021
‘ETUATE LAVULAVU
Appellant in ACT 19 of 2021
AND REX
Respondent
Court: Hansen J
de Jersey J
Harrison J
Heath J
Counsel: Ms Alyssa Kafoa for Appellant in AC 17 of 2021
Mrs Ane Tavo-Mailangi for Appellant in AC 19 of 2021
Mr Semisi Lutui and Ms ‘Elisiva Lui for the Respondent
Hearing: 4 October 2022
Judgment: 10 October 2022
JUDGMENT OF THE COURT
Introduction
[1] After trial before Cooper J, the appellants, Akosita Lavulavu and her husband Etuate Lavulavu, were convicted of three joint charges of obtaining money by false pretenses contrary to s164 of the Criminal Offences Act. They were both sentenced to six years imprisonment. The last twelve months of Mrs Lavulavu’s sentence was suspended in 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.
[2] Both Mrs Lavulavu and her husband appeal against conviction and sentence.
Background
[3] In 2003 Mr Lavulavu and others established the ‘Unuaki ‘O Tonga Royal Institute (UTRI) which is a private education provider with its head office situated at Tofoa and a branch in Vava’u. Mr Lavulavu was the President of UTRI at all material times and Mrs Lavulavu its Director from 2010 to 2016.
[4] UTRI had been accredited as a technical and vocational educational institute by the Tonga National Qualification Authority Board (TNQAB). It was accordingly entitled to obtain financial assistance from the Ministry of Education and Training (MET) under the Ministry’s Technical Vocation Educational Training (TVET) scheme. Under the scheme a grant would be made at the rate of $600 per fee-paying student enrolled for each semester. The term used in the relevant Cabinet Decision is ‘receipted student’. According to the conditions of the TVET grant, 50% of the grant money had to be used for teachers’ salaries, the remainder to be allocated for the purpose of improving teaching and learning resources and undertaking minor renovations to the classrooms and workshops up to a total amount of $50,000.
[5] The charges arise out of the following three applications for grants made by UTRI:
- An application made on 19 November 2013 which represented that 255 students were eligible for the first semester of 2013 leading to a payment of $146,400 to UTRI on 29 May 2014.[1]
- An application made on 29 August 2014 which represented that 416 students were eligible for the second semester of 2014 and which led to a payment of UTRI of $249,600 on 18 November 2014.
- An application made on 9 June 2015 which represented that 271 students were eligible for the first semester of 2015 and which led to a payment of $162,600 on 29 June 2015.
[6] At the request of MET, the office of the Auditor General undertook an audit of the records of UTRI. The findings, recorded in an audit report dated 5 October 2016, were:
- There were only six paying students for the first semester of 2013 and UTRI was entitled to receive a grant of only $3,600;
- There were only nine paying students for the second semester of 2014 with an entitlement to a TVET grant of $5,400;
- There were only four paying students for the first semester of 2015 with an entitlement to a grant of only $2,400.
The Crown case is that grants were, accordingly, overpaid by a total of $553,800.
[7] Most of the funds deposited by MET in UTRI’s bank account were withdrawn by or at the direction of the appellants and deposited into bank accounts in their names or under their control. The Crown says what was paid was not used for the specified purposes but appropriated by the appellants for their own use and benefit.
Indictment
[8] An amended indictment, presented shortly before trial, charged Mr and Mrs Lavulavu jointly that they obtained the sums paid to UTRI by MET by a false pretense by representing in applications for funds from the TVET grant that there were the numbers of students for the three semesters stated in the respective applications and the Ministry relied on that false representation and paid the grants.
Crown Case
[9] The Crown case was that the false representation in each case was made by way of the application form to which was attached a list of eligible students. It is common ground that the first two applications were made in the name of Mrs Lavulavu as director of UTRI. The third application was also made in her name but she denied signing it.
[10] The Crown relied on the evidence of two witnesses, Mele Tovi and Felisita Kivalu, to establish that the lists of eligible students were compiled at the direction of both Mr and Mrs Lavulavu. Mrs Tovi and Ms Kivalu were what was termed ‘indemnified witnesses’; they had been granted immunity from prosecution.[2] They said that they and other employees of UTRI were also directed to prepare receipts recording the payment of the prescribed fee of $100 dollars per semester though only a minority of students in each semester paid that sum in cash or provided any form of consideration. The Crown case is that this was done in order to meet the requirement for each student to be ‘receipted’, that term being understood to require the payment of a fee by each student. An MET employee would go to UTRI and check receipts against the list submitted with each application before approving a grant.
[11] The Crown also alleged that some of the students whose names appeared on the lists did not attend the school at all. A Memorandum signed by the parties on 30 April 2021, shortly before the trial began, recorded that of the students the subject of count 1, 2 and 3, 30, 67 and 42 respectively did not attend the school or pay fees in cash or kind.
[12] The Crown submitted that the number of students overstated was in fact in excess of those numbers, relying on, among other evidence, the auditor’s report that found that 286 of those named in the lists had not submitted application forms or submitted application forms that were incomplete, and 35 did not exist at all.
[13] The Crown alleged that the applications for inflated numbers of eligible students were made by Mrs Lavulavu with the knowledge, approval and active encouragement of Mr Lavulavu, for the purpose of obtaining for UTRI and/or themselves a benefit in the form of grants which UTRI was not entitled to received.
Defence
[14] Both appellants gave evidence and called witnesses in their defence at trial. Mrs Lavulavu accepted that she signed the application forms for the 2013 and 2014 semesters. She said she was overseas when the 2015 application forms was completed and could not have signed it. She denied directing staff members to inflate the numbers of students attending or to write out bogus receipts. Both she and Mr Lavulavu maintained that UTRI was entitled to obtain grants for students who provided goods or services in lieu of cash for fees or utilised students loans for that purpose, but Mr Lavulavu is adamant she relied on UTRI staff to include only genuine fee-paying students on the list and had no reason to think that they have not done so.
[15] Mr Lavulavu maintained he had no involvement in the applications. He denied giving directions to staff members in relation to the lists or having any day-to-day role in the management of UTRI. He said he did not even attend board meetings of the UTRI over the 2013-2015 period.
Decision
[16] In a lengthy decision which exhaustively detailed the evidence of each witness, Cooper J found all charges against both Mr and Mrs Lavulavu proven. He identified the elements of the offences as:
- The defendant made a statement either directly or through the agency of another.
- The statement was false.
- The defendant knew it was or may be untrue.
- The statement caused the payment to be made by the MET.
- The conduct was dishonest.
The Judge identified the substantial issues before him as whether there were in fact the stated number of students attending UTRI for the Tourism and Hospitality course in question for each of the three semesters and, if the numbers were incorrect, whether the defendants knew the statements were false.
[17] We summarise his findings in relation to each element.
Statement
[18] Cooper J noted that all three applications were made in Mrs Lavulavu’s name, that each incorporated a declaration that the information in the application was true and correct and were signed by her. He made no finding on Mrs. Lavulavu’s claim that she did not sign the 2015 application. The Judge, accordingly, had no difficulty finding that Mrs Lavulavu had made the statements. He also found that she and her husband had ‘worked alongside’ each other and that she acted as his agent in making what were joint applications. Any suggestion that Mr Lavulavu ‘was not as responsible for the applications as his wife’, the judge characterized as ‘just silly’. He referred to their ownership of UTRI; their roles as Director and President respectively; and their control of the UTRI bank accounts into which payments were made.
Falsity
[19] The Judge said the issue was whether the appellants correctly stated the number of fee-paying students. He said that required payment in cash. He rejected as baseless a defence contention that fees had also been paid by other means. He found that in many cases receipts for fees to match the names of students on the enrolment form that accompanied each application were falsified at the direction of the appellants. He also accepted evidence that many of the students on the list had not been enrolled at all.
Knowledge of falsity
[20] The Judge referred to Mr Lavulavu’s agreement at a meeting with the Auditor General on 3 March 2017 to pay back a substantial amount - $300,000 was the Auditor General’s recollection – as an acknowledgement that Mr Lavulavu knew the student numbers to have been incorrect. He also noted that UTRI’s own records – its Quality Control Manual – stated that less than 5% of students pay fees. The Judge found the appellants knew that eligibility for TVET grants required not simply enrolment by a student but payment of fees. He referred to the evidence of a board member of UTRI called by Mrs Lavulavu who confirmed that this was the understanding of board members. The Judge rejected the suggestion that the appellants were unaware that payment of fees by a student was essential to eligibility.
Causation
[21] The Judge had no difficulty concluding that the false representations were operative. MET made grants according to the numbers of eligible pupils stated in the applications. On the basis of the audit, the overpayment was in the total sum of $553,800.
Dishonesty
[22] The Judge found he could infer dishonesty. He was satisfied on the evidence that both appellants knew of the inaccuracy of the claims, specifically, the falsity of the student lists and ‘most importantly’ the receipts. He referred to the appellants ordering staff to falsify receipts for sums of cash never paid.
[23] He held that dishonesty could also be inferred from the inclusion in each application of names that could not be traced; of students who did not ‘really attend’; and of students whose details had been taken from other events or documents.
Appeals against conviction
[24] After briefing new counsel, Ms Kafoa, Mrs Lavulavu sought leave to amend her notice of appeal. More recently, having instructed counsel, Mr Lavulavu also sought leave to amend his notice of appeal. While both notices contain multiple grounds of appeal, we propose to address them by reference to the four categories identified by Mrs Tavo-Mailangi in her supplementary submissions for Mr Lavulavu. Mr Lutui argued the Crown case under broadly similar heads. They are:
- The Judge erred in his analysis of the elements of the offence.
- The Judge erred in holding that the principles of agency could be invoked for the purpose of proving the offences.
- The Judge erred in finding there was evidence sufficient to establish guilt.
- The judge was biased &/or the conduct of the trial was unfair.
[25] We propose to consider each category in turn, separately as necessary where they affect the positions of the appellants differently.
Elements of offence
[26] The starting point for a consideration of the elements of an offence is, of course, the statutory provision which creates it, in this case Section 164 of the Criminal Offences Act which provides:
Every person who by any false pretense obtains for himself or for any other person any money, valuable security or other thing whatever shall be liable to the same punishment as if he had committed theft.
[27] The false pretense alleged in the indictment is the number of students represented to have attended UTRI for each of the semesters. The amount of the grant is what is alleged to have been obtained. The indictment does not identify who obtained the money.
[28] The Judge correctly identified the need for the Crown to prove that a representation had been made that was false to the knowledge of the representor and that, as a result of the representation, a benefit in the form of the grants was obtained. Where we part company from the Judge on this issue, is in his requiring, in addition, that the conduct was dishonest.
[29] We agree with the appellants that there is no need to add a further generalized requirement of dishonesty. Knowledge of the falsity of the representation of course imports dishonesty. However, in our view there is a further element of the offence that the Crown must prove.
[30] That derives from the requirement that the representor obtain a benefit for himself or another. For this purpose, principle requires an intention that the representation cause or induce the representee to confer a benefit on the representor or another person. This avoids any possibility of the representor being criminally liable for an unintended consequence of the false representation. The mens rea of the offences is, accordingly, knowledge of the falsity of the representation (the false pretense) and an intention that the representation should be acted on to secure a benefit (the obtaining). Knowledge of the falsity of the representation by itself does not constitute the mens rea of the offence. The representor must also know or intend that the representation will be acted on.
[31] The Judge erred in omitting this element of the offence from his analysis and substituting a generalized requirement for dishonesty. This ground of appeal accordingly succeeds.
Agency
[32] The Judge invoked the principles of agency in order to establish that Mr Lavulavu had made the representations. He found that Mrs Lavulavu had acted as his agent, and, in effect, made the representation on his behalf as well as in her own right. He also relied on agency to establish that the Lavulavu’s were guilty of count 3 as he made no finding that it was signed by Mrs Lavulavu.
[33] In opening its case, the Crown did not rely on the principles of agency Mr Lutui explained that the Crown case at trial was that both Mr and Mrs Lavulavu were principal offenders. The Crown did not seek to distinguish between the legal basis of their roles. However, at an early stage of the trial the Judge made it clear that, in his view, the doctrine of agency should be invoked to establish that the appellants or either of them made a false representation. So, he said, even though Mrs Lavulavu may not have signed the 2015 application and Mr Lavulavu had signed none of the applications, they may be shown to have made the representations. As to Mr lavulavu’s position he commented:
‘doesn’t matter if his name appears on it or not. Married working together the two must seen a people on a business of course of course it was both their behalf of this applications were made’[3]
[34] We have no difficulty with the proposition that it is not essential that an accused actually make the false representation in order to prove the offence. That could arise if the accused acts jointly with the representor as the Crown contends occurred here. Alternatively, and more commonly, guilt is established by the accused person’s role as an accessory. In Tonga the basis on which such secondary liability may arise is spelt out in section 8 of the Criminal Offences Act which provides:
8 Abetment of crime and punishment of abettor
Every person who directly or indirectly commands, incites, encourages or procures the commission of an offence by any other person and every person who knowingly does any act for the purpose of facilitating the commission of an offence by any other person is an abettor and shall (unless otherwise expressly specified by any enactment) —
[35] By reference to section 8, the question would relevantly be whether Mr Lavulavu encouraged or procured the commission of the offences or did any act for the purpose of facilitating the commission of the offences. The Judge appeared to recognize that Mr Lavulavu’s culpability should be analysed in that way but then reverted to his earlier stated view that the issue could be determined by reference to the law of agency. He said:[4]
That the correct way to define the role of Mr Lavulavu, as alleged, is that he aided, abetted, or procured the alleged offences. That is not how the Crown ever put their case. The doctrine of agency logically and correctly as a matter of law, summarises and encapsulates their case.
[36] While Mr Lutui stoutly maintained that agency principles could properly be invoked in a case such as this, no authority was cited to us in support. The rules of agency with their particular requirements relating to knowledge and authority have no place in a case such as this. We see no reason why the evidence should not be analysed in the usual way by considering whether the elements of the offence have been established, if necessary by reference to the statutory provisions for establishing guilt as a party.
Insufficient evidence
[37] For both appellants it is submitted that there was no false representation by either appellant or, if there was, they had no knowledge of its falsity. They submitted that, in the following respects, the evidence was deficient or the Judge erred in finding otherwise:
[38] We accept that the relevant time for determining the falsity of a representation is when it is made though it is not clear to us that the judge adopted later dates for that purpose. All other issues raised by the appellants require detailed consideration only if, individually or collectively, they show that there was insufficient evidence on which to found convictions. Mrs Mailangi acknowledged that the evidence established the falsity of the representations but did not accept that knowledge of falsity had been shown. We understand Ms Kafoa’s submissions to be advanced on the same basis.
[39] For the reasons which follow, we are satisfied their arguments cannot succeed. There was ample evidence to support the Judge’s finding on this issue.
[40] At trial, the Crown opened its case on the basis that ‘eligible students’ meant and was understood to mean ‘receipted students’ which in turn was understood to mean a student who had ‘provided some form of consideration ( be it in cash or in kind)’ to the education provider and was given a receipt in return. That this was known to the Appellants was said to be shown by the steps taken to prepare receipts for each named student and by a letter to the Tonga Development Bank signed by Mrs Lavulavu which recorded income from student fees of $200p.a for the 255 and 418 students the subject of the 2013 and 2014 applications.
[41] The false representation relied on by the Crown, was, accordingly, that the numbers of paying students in each application for the Tourist and Hospitality course was inflated. As already noted, the appellants formally acknowledged that some students in each semester never attended UTRI as students or paid tuition fees. The appellants later introduced evidence which showed that some of those students graduated at a ceremony in 2014, casting doubt in the precise number of students who did not attend. But for present purposes, it is not in issue that the Judge was entitled to proceed on the basis that the representations were false to that extent at least.
[42] The evidence of Mele Tovi and Felisita Kivalu recounted how lists of students were prepared for the purpose of the grant applications. They said they were directed to prepare lists on the basis of enrollment applications, regardless of whether students attended the school. Ms Kivalu said the lists were submitted to the appellants for approval. After approving the lists, they directed her to prepare receipts for each student whether they had paid fees or not. Although the appellants denied the accounts of Mrs Tovi and Ms Kivalu, the critical elements of their evidence were not challenged in cross examination.
[43] The Judge accepted the evidence of Mrs Tovi and Ms Kivalu as he was entitled to do. It provided a solid basis of conviction on all counts. This ground of appeal must according fail.
Unfair conduct
[44] Both appellants contend that the trial was unfair. They complain of excessive judicial interventions and conduct by the Judge which conveyed a predetermined and adverse view of their case. Their concerns were voiced at trial, culminating in an application to the Judge to recuse himself. He declined to do so.
[45] For the purpose of the appeal, the appellants compiled statistics of the questions asked and comments and other intervention made by the Judge. We were told that in the course of the trial, the Judge asked witnesses a total of 2062 questions, 33% of the total of questions asked. In comparison, the prosecution asked 2583 questions (41%), counsel for Mrs Lavulavu 1448 (18%) and Mr Lavulavu 516 (8%). The Judge’s involvement in the trial was further broken down to show that, of the 2062 questions asked by the Judge, 1280 (62%) were what were described as ‘interventions and second prosecutor’, 289 (14%) sought clarification and 493 (24%) were in the nature of comments.
[46] While on the face of it the questions asked or other interventions made by the Judge were unusually high, we are loathe to come to any firm conclusions from the statistics alone. As Mr Lutui submitted, context is required. Of particular relevance in this case was the judicial responsibility for managing a trial which at one stage threatened to involve more than 100 witnesses. A Judge is always entitled to intervene firmly and decisively to ensure that a trial proceeds expeditiously. Cooper J’s task in that regard was not made easier by Mr Lavulavu representing himself for most of the trial. The presence of a litigant in person invariably requires a Judge to engage more actively in the proceeding. We intend no criticism of Mr Lavulavu in saying that, in dispensing with counsel, he added significantly to the Judge’s level of engagement.
[47] Against that statistical background, we move to consider those aspects of the conduct of the trial raised by the appellants which we consider to be most worthy of serious consideration. They do not include every complaint raised by counsel. And in a trial lasting 23 days, requiring over 700 pages of transcripts, it is impossible to consider every intervention by the Judge that could constitute cause for criticism. What follows is, however, sufficient to provide context to the bare statistics.
[48] It is convenient to consider the Judge’s conduct in three categories, while accepting that there is considerable overlap between them:
(a) Evidence of predetermination.
(b) Inappropriate or unwarranted interventions.
(c) Findings made in reliance on evidence unfairly obtained.
Predetermination
[49] On day 5 of the trial the following exchange between the Judge and Mr Edwards, counsel for Mrs Lavulavu, took place in relation to the key issue of receipts[5]:
“Edwards Those students didn’t fill in the form but they attended the school
Ct Mr. Edwards what we’ve seen in relation to the receipts is that they state that money had been paid
Edwards Yes your honor
Ct That is totally untrue isn’t it?
Edwards Yes sir
Ct So there for you don’t need to call anyone in relation to the 14, 15 and 16 paragraphs of the audit because what was going on was that the MET were being told they had been paid school had been paid so maybe a number of students in relation to loan contracts, commodity exchange, working for the institute but that wasn’t operative on the mind of MET not the numbers. What was operative on the minds of those in Met is that
they were people who have paid.
Edwards Yes sir I accept that.
Ct That sounds like were the ford [fraud] is.
Edwards I accepted sir but what I am saying your honor.
Ct If it is not going to be relevant to initiate the case I am not going to allow it to be put before me.
Edwards But your honor they attend the school
Ct No
Edwards Please if I may make the submission
Ct You make the submission but the answer is going to be no because MET were being given receipts that payment have been made to school.
Receipt after receipt after receipt we might have to return to the indictment about it and that is in relation to paragraph 14, 15, and 16
students. That is what’s operative on the mind of MET.
Edwards I get that sir
Ct That they have been paid. So to say they were at school you might be right but that wasn’t what was operative in relation to the fraud
Edwards I accept that sir but if someone comes in and signs an agreement with the school
Ct Okay but that is not what the receipts said.”
[50] The issue of agency was soon after addressed. The following exchange with Mr Edwards illustrates that the Judge’s position in that regard was firm and immovable. We should add that the we listened to the audio record of this exchange, as we did to many of the passages relied on. While, as this excerpt shows, the Judge trenchantly resisted attempts to dissuade him from his position, we have the clear impression that his exchanges with counsel, Mr Lavulavu and witnesses were generally conducted in a courteous and respectful manner.
“Edwards There was uhm I see where he is going with 2013 and 14 but 2015 there is no witness from the crown in respect of 2015 contracts.
Ct The 2015 contracts
Edwards Application your honor
Ct Sorry what the commodity exchange?
Edwards No sir in terms of the application form made to the MET.
Ct Its in evidence. What are you referring me to?
Edwards There is no evidence to who signed it and
Ct Who signed it? You mean on behalf of UTRI?
Edwards Yes sir. My client didn’t sign it sir.
Ct Look you need to think about those that work through agents and it
doesn’t matter really who actually signed it really it was in the name Akosita Lavulavu.
Edwards Yes sir
Ct So if she hasn’t signed it then she has done so submitted I through an agent and that is absolutely sufficient evidence for me to consider that the application was made on her behalf. Well look don’t shake your head Mr. Edwards if you want to consider the law in relation to agents then look please I think it is chapter 19 on David – Book on Criminal law and it is the pre-2015 edition from recollection.
Edwards I am sorry your honor I did not mean it that way what I am saying is that I just stunned by.
Ct Don’t be stunned by it but be [en] lightened by it. This is what I am saying to you it is there for you to consider and that is the state of the law and that is the state of the common law long long established. So it really matters not and I can say now the same way that application may just be signed Akosita Lavulavu by somebody else it is plainly made on behalf on both defendants.
Edwards Sorry sir Mr. Lavulavu name does not appear on that document.
Ct Doesn’t matter. That is why I say you need to address your mind in relation to the doctrine of agency. Doesn’t matter if his name appears on it or not. Married working together the two most senior people on that business of course it was both their behalf of these applications were made.
Edwards I beg to disagree your honor
Ct Yo can beg all you like but you we’ll see where it gets to. But we will consider the law that is why I am saying to you right away you need to consider the doctrine of agency here because as far as I am concerned that is what’s going on here absolutely plain – couldn’t be clear. Okay what I want you to do Mr Edwards please in relation to those witnesses you intend to call in relation to paragraph 14, 15 and 16 for each one who provided the scholarship which student does it relate to , what amount and what document proof. And as part of case management of this trial I am going to say that needs to be available for me by 10 o’clock next Monday please so that is Monday the 27th. That list in relation to the students and those features of your case please.”[6]
[51] On day 8 of the trial the judge intervened following the cross examination of a prosecution witness, Simione Tahi, asked the witness to leave the courtroom, then said:
“Ct No. can the witness go outside please. Just give me a moment please. okay gentlemen sorry Mr Edwards at the moment I consider this witnesses’ evidence basically untruthful and that he is lying in relation to being a student at the college that he was in fact just a dancer a teacher there for the three relevant semesters and those signatures are the two signatures we saw could not possibly be his and that’s the way I am receiving the evidence at the moment,. If you think he should be given the opportunity to refresh his memory from his witness statement before he carries on I think that might be a proper step. I have not been – to be treated as hostile though it seems can fall under that category but it doesn’t have to that is what the prosecution appears to be suggesting that they don’t need to make that application because I can draw that conclusion from the evidence that has been put before me and as a matter of fairness to both of you and rather we get down the line and the prosecution say actually in relation to this witness you can’t trust his evidence for these obvious reasons, I think it is much better that I ventilate it with you now then we consider our position because well I made my”[7]
Inappropriate or unwarranted questions
[52] When a witness, Lopeti Filo, called by Mrs Lavulavu, gave evidence as to the numbers of students he taught, the Judge repeatedly questioned how he was able to remember class numbers going back 6-8 years.
“Ct In relation to these answers and these figures you’re thinking back 6-7 years, how do you remember these figures?
Wit I remember the numbers from my classes from the roll call and Your Honor some came today, some they don’t turn up and just up and down during the attendance.
Ct But how do you remember class numbers from 6-8 years ago?
Wit I was there every day Sir.
Ct You’ve taught a lot of classes and there are a lot of different amounts of people in those classes.
Wit Basically the same lot Sir.
Ct Yes between 2015 and now what have you been doing?
Wit I finished from UTRI in 2016, I was at home at 2017 I started to be an external trainer for Tonga Skills during 2018.
Ct What were you doing as an external trainer? Were you teaching classes?
Wit No I was teaching for Tonga Skills not the school classes but for the community.
Ct So you were teaching classes for the community?
Wit Yes.
Ct So in the last few years you were teaching all sort of different classes and they’ve got different number of people so how would you remember the numbers of people in relation to the second semester in 2014 which is seven years ago?
Wit The other thing, the numbers of people in my class when I started with the 70-80 they would stay with until the end of the year.
Ct Yeah but how would remember class numbers from seven years ago?
Wit I used to have my records and every day I would do my records and that’s how I know how many students I have.
Ct But you’ve not have access to those records for seven years?
Wit No Sir.”[8]
[53] The appellants contrast the Judge’s questioning of this witness with his approach to the evidence of Ms Kivalu who also gave evidence of class numbers in 2013 and 2014. Her ability to recall was not questioned.
[54] In the course of her evidence, Mrs Lavulavu was closely questioned about the inconsistent evidence of Ms Kivalu in relation to
the preparation of the lists of students. Maintaining her contrary position, it was put to her by the Judge that, if she were right,
Ms Kivalu must be lying. After questions from the prosecutor, the Judge then put to her that, unlike the witness, Ms Kivalu had no
motive to lie.
Pros So you saying she is lying?
Wit I did not instruct her to stamp any.
Ct But she said you did. Are you saying she is lying?
Wit May be so sir.
Ct Are you or are you not? Maybe is not an answer?
Wit Yes
Ct Can I ask you this therefore please Ms Kivalu said that what happened was your husband informed her that she must create the list
based on those recruited. Did you do that?
Wit I don’t recall instructing her to create the list from the list of students recruited.
Ct But did you instruct her to create the list at all?
Wit That was normal procedure.
Ct So you did instruct her to create the list?
Wit I did not instruct her your honor.
Ct You said normal procedure, just help me because I can’t really understand what you are saying about this witness.
Wit It was normal procedure because they already know what to do.
“Ct How did they know what to do?
Wit Every year they would prepare the final enrolment list
Ct Forgive me, you said that you instructed her to do that. Did you do that?
Wit No I did not instruct her.
Ct So is she lying when she said that?
Wit Yes
Ct Okay and she said that you were given the list no that you have them the list and told them to issue the receipt in relation to that and that the numbers have been proved by
you and your husband. Did you do that?
Wit No sir
Ct So is she lying?
Wit Yes, I don’t understand how could give her a list when the administration will – put the list together.
Ct Thank you Mr Lutui
Pros Thank you your honor. Akosita I had already put to you that you have directed Felisita Kivalu in relation to this document to stamp and initial on it and you said no. and I think your answer to follow up question from his honor is that you did not instruct her she is lying. I put it to you Akosita greatest respect that Felisita is not lying. She has no reason to come to court and lie in relation to that aspect of her evidence.
What do you say about that?
Wit I don’t know what I am going to say I did not instruct her to stamp and sign the list.
Pros In relation to another follow up question from his honor particularly in relation to the direction that the list was given by you to her and your direction was made to issue the receipts for those name and you have already given the answer for that and you also stated she is lying in relation to that aspect of her evidence. I put it to you again Akosita that Felisita has no reason at all to come and lie about that evidence.
Ct Mrs Lavulavu what Mr Lutui is putting to you is that just to help you as a matter of fairness to you is that Ms Kivalu got nothing out of this were as you and your husband got over a 150,000 dollars. So why would she lie?
Wit I don’t know sir but I never instructed her I was very surprised when she gave her evidence were everything she said was I instructed her. I did not instruct her about
anything.
Ct You have to think about this with us. You are the one getting the money she got nothing out of this why would she make this up?
Wit Your honor I did not get the money the money came to the school.
Ct It went to a bank account you and your husband controlled.
Wit May be because it was a reimbursement of the money
Ct Forgive me let’s get back to the question, Ms Kivalu got nothing out of this. The bank account you and your husband controlled was over a 150,000 dollars. Why would she make this up if she nothing out of it?
Wit I don’t know your honor
Ct Okay.”[9]
[55] Although not directly raised by the appellants, it is appropriate to also refer to a series of questions asked of Ms Kivalu by the Judge. Immediately after Mr Edwards had concluded his cross examination, the Judge asked Ms Kivalu about a meeting she had referred to in her evidence in chief. He explored what was said at the meeting, who attended, how long it took and questioned Ms Kivalu about a letter she was given to send to the Police Commissioner. This evidence amplified and elaborated significantly on what Ms Kivalu had said earlier. It occupied two full pages of the transcript.
[56] This part of Mrs Kivalu’s evidence had repercussions later on in the trial when Mr Lavulavu applied to have her recalled so he could cross examine her on aspects of her evidence about the meeting. They included evidence that, as characterized by the Judge in his ruling that they was a case to answer, Ms Kivalu was effectively asked by Mr Lavulavu to lie to the Police Commissioner.
[57] The Judge refused to allow Ms Kivalu to be recalled.
Judge’s findings
[58] In his decision, the Judge made some highly damaging findings against Mr and Mrs Lavulavu, in effect finding that they had conspired to pervert the course of justice. The following passages of his decision set out his reasons and his conclusion.
[59] After referring to other aspects of Ms Nasilai’s evidence that supported his view that she was lying, the Judge continued.
[60] After directing himself as to the way in which a witness giving false evidence should be treated, the Judge concluded on this issue:
127. After analysing those untruths in line with that direction, I find those steps to corrupt the trial process that both defendants undertook are capable of being received as evidence that corroborates the other evidence going to each of these key elements of the offence; falsity, knowledge and dishonesty.
[61] Muna Nasilai taught at UTRI from 2012 to 2017. She also had administrative responsibilities. She was called by Mrs Lavulavu. In important respects her evidence regarding the compilation of lists and the completion of the grant applications was contradictory to the evidence of Mrs Tovi and Ms Kivalu. She also had a different recollection of the meeting which she also attended.
[62] Simione Tahi was a prosecution witness. He was a pupil at the school in 2014-2015. He said he had entered into a loan agreement and paid fees in cash.
[63] We have already referred to the adverse assessment of Mr Tahi’s credibility formed by the Judge. No such intervention
took place in the case of Ms Nasilai’s evidence though signs that the Judge had concerns about aspects of her evidence had
emerged. In cross examination she said she began working in her current position with the Ministry of Infrastructure in 2019. At
the conclusion of her evidence the following exchange took place.
“Ct Right Miss do you have a work contract with the ministry of infrastructure?
Wit Yes.
Ct Can you bring it to court tomorrow morning first thing?
Wit Yes.”
[64] The following day, Mr Edwards informed the Judge that Ms Nasilai had been hospitalized. The Judges response was:
“Ct What I’m going to do in relation to Miss Nasilai she is to be at court on Monday 17th at 10:00am with medical certificate and work contract otherwise I shall issue a warrant. Thank you for your help with that. So moving to the next witness Please.”
[65] On the Monday, Mr Edwards informed the Court that Ms Nasilai was ‘not in good condition’ but could be available once the risk period had passed. The following exchange then took place:
“Ct So just now return to this case as it were, what I want to do in relation to Ms Nasilai is and I as it were asking you Mr Lutui I resume under section 5 of the Supreme Court Act what I can do is an officer can go to the Ministry of Infrastructure and retrieve a
copy of the works contract which will give the date she commenced.
Pros Yes your honor we can ask someone to do that without.
Ct Okay thank you. Well in I will make it an order not that I don’t believe you just to keep on top of things. To be done by 10 o’clock tomorrow. Is that acceptable?”
[66] The following day, Crown counsel advised the Judge that the Police had served the order and the employment contract had been received. He continued:
‘.....in a nutshell Ms Nasilai was engaged as the Personal Assistant for the Minister of Infrastructure which is Akosita Lavulavu which 2019’
[67] The Judge said that what he proposed to do was to make the contract an exhibit and ‘I will call this is pending representation from yourself ....but I am inviting representation’. Soon after, the defence case was closed. The record indicates that the issue was not adverted to again. It was not referred to in closing submission or raised by the Judge.
Discussion
[68] We turn now to consider whether these aspects of the trial process establish either a real possibility that the decision maker was biased or that the conduct of the trial overall was unfair. In Cox v Attorney General[10] this Court adopted the following passage from the judgment of former Lord Chief Justice Paulsen in Fa-oliu v Public Service Commission[11] as helpfully elaborating the common law test for apparent bias.
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] HCA63; 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.
[69] The approach to be adopted when the conduct of a judge is said to have rendered a trial unfair was comprehensively reviewed in Peter Michel v The Queen[12], a decision of the Privy Council on appeal from the Court of Appeal of Jersey. The Privy Council identified as ‘perhaps [the] clearest enunciation’ of what it termed the wider principle was in Randall v R,[13] where after remarking that “it is not every departure from good practice which renders a trial unfair,” Lord Bingham continued:
“But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.”
[70] As to the proper role of a judge, it is hard to go past what the Privy Council termed the ‘celebrated judgment’ of Denning LJ in Jones v National Coal Board[14] where the Judge said:
“A Judge’s part .... Is to hearken to the evidence, only himself asking questions of witness when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevances and discourage repetition; to make sure by wise interventions that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the role of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that; ‘Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-turned cymbal.”
[71] As the Privy Council went on to say, in a criminal trial the importance of a detached approach is even greater:
“The need for the judge to steer clear of advocacy is more acute still in criminal cases. It is imperative that a party to litigation, above all a convicted defendant, will leave court feeling that he has had a fair trial, or at least that a reasonable observer having attended the proceedings would so regard it.
[72] Having regard to these principles and to the aspects of the trial earlier set out, we are left in no doubt that the appellants are fully justified in feeling that they did not have a fair trial and that a fair minded observer would agree with them.
[73] In making our assessment we have due regard to the exigencies of the case and the Judge’s responsibility to ensure that the trial proceeded expeditiously. In our view, these aspects of his role justified the Judge’s intervention on the agency issue.[15] If a judge has formed a view on a legal issue, it is perfectly proper for him or her to inform counsel although, we would add, normally not as a concluded position, but as a prelude to argument on the issue if the Judge’s view is not shared by counsel. As a general rule, a final position on a legal issue should not be taken without full opportunity for input from counsel.
[74] On the other hand, a judge must take care when articulating a view on the evidence, particularly a decided view, on a critical issue, as he did in relation to receipts.[16] At an early stage of the trial the Judge was, in effect, saying that, in his view, a critical aspect of the Crown case was proven fact and the trial should proceed on that basis. Even if the state of the evidence justified his view, he should have kept it to himself. Judges habitually remind jurors of the need to keep an open mind and not to come to a decided view until they have heard all the evidence. That precept applies equally to a judge sitting alone. To ignore it is perilous. Not only does it potentially infect the integrity of the decision making process but, as occurred here, it immediately raises questions as to the impartiality of the judge.
[75] Many of the remaining interventions referred to are examples of the Judge acting not as an umpire of the contest, but effectively as a second prosecutor.[17] His questions of Ms Kivalu at the conclusion of her evidence come clearly with the description.[18] He was not seeking to clarify the witness’s evidence; he was embarking on a new round of questions which was quintessentially the job of the prosecution. He elicited evidence that was damaging to the defence, the effects of which were exacerbated when he later refused Mr Lavulavu’s application to recall the witness. It is true that Mr Lavulavu could have cross examined her at the time but that was early in trial, soon after he had dispensed with counsel, and we infer he left cross examinations to his wife’s counsel. While we do not have regard to the judge’s refusal to recall Ms Kivalu, it inevitably added to a perception that he was unfavorably disposed towards the defence.
[76] That would certainly have been the perception when the judge questioned the witness, Lopeti Filo and, earlier Mrs Lavulavu.[19] It is understandable that the appellants should compare the Judges sceptical questioning of Mr Filo with the way Ms Kivalu was treated. But the more important issue is that he should not have been questioning the witness for this purpose at all. That was the prosecutor’s job.
[77] It was also the prosecutor’s job, and no part of the Judge’s role, to quiz Mrs Lavulavu on inconsistencies between her evidence and what Ms Kivalu had said. For him to press her to brand Ms Kivalu a liar and then to suggest that it was she, the witness, not Ms Kivalu who was incentivised to lie, could not, on any account, be justified. The Judge was not only usurping the proper role of the prosecutor, but subjecting the witness to a line of rhetorical questioning which in effect reversed the onus of proof.
[78] We turn now to consider the Judge’s finding that the appellants had ‘corrupted the trial process’ and his reasons for reaching that conclusion. Critical to his finding was that Ms Nasilai had been ‘bought off’ by the appellants and given a job at the Ministry of Infrastructure where Mrs Lavulavu had become the Minister. In coming to that conclusion the Judge relied on the contract of employment which was finally produced in the circumstances we have already outlined.
[79] There are a number of disquieting aspects to that course of events. The first is that the production of the contract of employment came about solely on the initiative of and as a result of the persistence of the judge. We infer that, doubting Ms Nasilai’s evidence (in response to questions from the prosecution) that when she joined the Ministry of Infrastructure Mrs Lavulavu was not the Minister, he resolved to make enquiries of his own. We cannot emphasize too strongly that that can never be the proper role of the Judge in a criminal trial. We will accept for present purposes that he had the power; he referred to s.5(2) of the Supreme Court Act which we have previously doubted applies to the criminal jurisdiction[20]. But what is important is not whether the Judge had the power but how he chose to exercise it. And what he did can only be characterized as a misuse of that power. It was for the prosecution to seek the production of a contract of employment if it wanted to. For the judge to have done so was to descend into the arena and risk thereby being blinded by the dust of the conflict.[21]
[80] The consequences of his doing so were exacerbated by the failure to give those affected by what was, in effect, fresh evidence, an opportunity to respond to it. It is elementary that a Judge’s findings should never be based on untested evidence. That principle becomes of acute importance when the evidence is to be relied on to make adverse findings as to character, in this case findings which underpinned the Judge’s rejection of the evidence of Mr and Mrs Lavulavu. If the Judge had intended to rely on the contract, Mr and Mrs Lavulavu and Ms Nasilai should have been recalled and directly confronted with the evidence and given the opportunity of commenting on any inference that the Judge or prosecutor may seek to draw from it. It was not enough to invite representations. As the issue was not addressed in final submissions or raised by the Judge, that clearly did not provide a meaningful opportunity to address the potentially damaging effects of the evidence.
[81] It is instructive to reflect that the unfortunate consequences of this aspect of the trial would not have arisen if the Judge had confined himself to his proper role. Had the prosecution wished to pursue the issue, it could have done so in an open and above board way. Witnesses could have been called and recalled as appropriate and the evidence addressed in submissions. What happened here is a case study in what can go wrong when a Judge strays beyond the bounds of his or her proper role.
[82] Cumulatively, the irregularities we have referred to resulted in a trial that went badly awry. In what we assume to have been a well-intentioned attempt to expedite the trial, the Judge persistently and, in some cases, egregiously exceeded his proper function. It was understandable that the appellants should feel the Judge was not acting impartially and inevitable that a fair minded observer would share that view.
[83] There is accordingly ample evidence to support findings of apparent bias on the part of the Judge and that the trial was unfair. The verdicts cannot stand. For the reasons already covered, we are satisfied, however, that there was sufficient evidence to support convictions on a correct application of relevant legal principles. A retrial must accordingly follow.
Result
[84] The appeal succeeds. The convictions are quashed. The matter is remitted to the Supreme Court for retrial.
Hansen J
De Jersey J
Harrison J
Heath J
[1] The gross amount of $153,000 payable was reduced by $6,600 to adjust for a previous overpayment.
[2] We were told that each was initially charged with forgery. Those charges were withdrawn after they agreed to give evidence against
the Lavulavus.
[3] This is what it recorded in the trial transcript, which while generally accurate, is accepted to require significant editing. Elsewhere,
as noted, we have used an edited transcript used by the counsel for the purpose of this appeal.
[4] At paragraph 1155.
[5] edited transcript
[6] edited transcript
[7] edited transcript
[8] edited transcript
[9] edited transcript
[10] AC 4 of 2022
[11] [2017] TOSC 32 at [44]- [47]
[12] [2009] UKPC 41
[13] [2002] 2 Crim App R, 267, 284
[14] [1957] 2 QB 55, 64
[15] Paragraph 50 above
[16] Para 49 above
[17] Peter Michel above n 7 at [27]
[18] Para [55]-[57] above
[19] Para [52]-[55] above
[20] Cox v Attorney General above note 10
[21] Jones v National Coal Board above n 14
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