Lavulavu v R [2023] TOCA 21; AC 12 of 2023 (5 October 2023)

IN THE COURT OF APPEAL OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

AC 12 of 2023 [CR 173 & 174 of 2018]

BETWEEN

‘ETUATE LAVULAVU Appellant

AND

REX Respondent

_____________________________________________________________________________

JUDGMENT OF THE COURT

_________________________________________________________________________

Court: Randerson J

Harrison J

Dalton J

Counsel: Appellant in person
Ms F. Faanunu & Ms F. Afu for ‘Akosita Lavulavu as observer
Mr J Lutui, Director of Public Prosecutions

Hearing: 29 September 2023

Judgment: 5 October 2023

Introduction

[1] The appellant Mr Lavulavu and others founded a private education institute in Tonga in 2003. He was its president and, at all material times, Mrs Lavulavu was its director. In the years 2013, 2014 and 2015 the Institute obtained grants from the Ministry of Education and Training. The grants were later audited by the Office of the Auditor-General and some irregularities were found. It was recommended that $553,800 be reimbursed to the Ministry and that the case be referred to the police for possible further investigation.
[2] In March 2018 Mr and Mrs Lavulavu were charged with three counts of obtaining money by false pretences contrary to s 164 of the Criminal Offences Act. They were convicted of those charges after a trial before Cooper J. In July 2021 they were each sentenced to six years imprisonment with the final year of Mrs Lavulavu’s sentence suspended for two years on conditions. They remained in custody until bail was granted in September 2022.
[3] Mr and Mrs Lavulavu successfully appealed against their convictions. On 10 October 2022 this Court allowed their appeals, quashed their convictions and ordered a retrial.^[1] The focus of the appeals related to the mens rea elements required to prove the charges and issues about the correct legal basis for party liability in the case of Mr Lavulavu.
[4] In November 2022 former Lord Chief Justice Whitten KC ruled on certain interlocutory applications by Mr Lavulavu and set a trial date, for 8 May 2023 if the DPP wished to proceed with the retrial. Shortly before the trial date the DPP filed an amended indictment which, amongst other things, invoked s 8 of the Criminal Offences Act against Mr Lavulavu alleging that he was guilty as a party rather than as a principal offender. Mr Lavulavu then applied to have the charges against him dismissed on the grounds of abuse of process. In consequence, the proposed trial date was vacated. On 19 May 2023, Lord Chief Justice Whitten dismissed Mr Lavulavu’s application. He has been granted leave to appeal. Mrs Lavulavu did not appeal but has been permitted to appear as an observer through counsel.
[5] If a new trial is to be held it is scheduled to proceed before a Judge sitting alone commencing on 16 October 2023.

Grounds of appeal

[6] Numerous grounds of appeal are relied upon by Mr Lavulavu but for convenience we place them in two groups:

• (a) Was it an abuse of process to amend the indictment in the form in which it now stands?
• (b) Are there any other grounds amounting to an abuse of process?

Was it an abuse of process to amend the indictment in the form in which it now stands?

The original indictment

[7] The trial before Cooper J proceeded on an indictment in this form:

Count 1

OBTAINING MONEY BY FALSE PRETENCE, contrary to section 164 of the Criminal Offences Act.

PARTICULARS OF THE OFFENCE

‘Akosita Lavulavu and ‘Etuate Lavulavu of Vava’u on or about 29 May 2014, at Nuku'alofa, you did obtain $146,400 from the Ministry of Education and Training by false pretence, when you represented in an application for funds from the Technical Vocational Educational Training Grant that there were 255 students at ‘Unuaki ‘o Tonga Royal Institute for semester 1 of 2013 but you knew that was false, and the Ministry of Education and Training relied on that false representation and paid the said money.

Count2

OBTAINING MONEY BY FALSE PRETENCE, contrary to section 164 of the Criminal Offences Act.

PARTICULARS OF THE OFFENCE

‘Akosita Lavulavu and 'Etuate Lavulavu of Vava’u on or about 18 November 2014, at Nuku'alofa, you did obtain $249,600 from the Ministry of Education and Training by false pretence, when you represented in an application for funds from the Technical Vocational Educational Training Grant that there were 416 students at ‘Unuaki ‘o Tonga Royal Institute for semester 2 of 2014 but you knew that was false, and the Ministry of Education and Training relied on that false representation and paid the said money.

Count 3

OBTAINING MONEY BY FALSE PRETENCE, contrary to section 164 of the Criminal Offences Act.

PARTICULARS OF THE OFFENCE

‘Akosita Lavulavu and ‘Etuate Lavulavu of Vava’u on or about 29 June 2015, at Nuku'alofa, you did obtain $162,600 from the Ministry of Education and Training by false pretence, when you represented in an application for funds from the Technical Vocational Educational Training Grant that there were 271 students at ‘Unuaki ‘o Tonga Royal Institute for semester 2 of 2015 but you knew that was false, and the Ministry of Education and Training relied on that false representation and paid the said money.

[8] At trial, the prosecution case was that both Mr and Mrs Lavulavu were principal offenders. However, during the trial, Cooper J had raised the question of agency. On appeal, this Court said:

[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’ [sic ]

[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:

‘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.

[9] This Court also took the opportunity in the appeal to clarify the issue of intention required for proof of the crime alleged under s164 holding:

[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 pretence) 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.

[10] This Court concluded:

[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.

The amended indictment

[11] The amended indictment is in the following form with material changes underlined:

‘AKOSITA LAVULAVU

Count 1

Obtaining Money by False Pretences, contrary to section 164 of the Criminal Offences Act

PARTICULARS OF THE OFFENCE

‘Akosita Lavulavu of Vava’u on or about 29 May 2014, at Nuku’alofa, together with ‘Etuate Lavulavu, you did obtain $146,400 from the Ministry of Education and Training by false pretence, when you represented in an application for funds from the Technical Vocational Education Training Grant that there were 255 students at ‘Unuaki ‘o Tonga Royal Institute for semester I of 2013 but you knew that was false, and you intended for the Ministry of Education and Training to act on the false representation, and the Ministry of Education and Training relied on that false representation and paid the said money.

Count 2

Obtaining Money by False Pretences, contrary to section 164 of the Criminal Offences Act

PARTICULARS OF THE OFFENCE

‘Akosita Lavulavu of Vava’u on or about 18 November 2014, at Nuku'alofa, together with 'Etuate Lavulavu, you did obtain $249,600 from the Ministry of Education and Training by false pretence, when you represented in an application for funds from the Technical Vocational Education Training Grant that there were 416 students at ‘Unuaki 'o Tonga Royal Institute for semester 2 of 2014 but you knew that was false, and you intended for the Ministry of Education and Training to act on the false representation, and the Ministry of Education and Training relied on that false representation and paid the said money.

Count 3

Obtaining Money by False Pretences, contrary to section 164 of the Criminal Offences Act

PARTICULARS OF THE OFFENCE

‘Akosita Lavulavu of Vava’u on or about 29 June 2015, at Nuku’alofa, together with ‘Etuate Lavulavu, you did obtain $162,600 from the Ministry of Education and Training by false pretence, when you represented through Mele Tovi, in an application for funds from the Technical Vocational Education Training Grant that there were 271 students at ‘Unuaki ‘o Tonga Royal Institute for semester 1 of 2015 but you knew that was false, and you intended for the Ministry of Education and Training to act on that false representation, and the Ministry of Education and Training relied on that false representation and paid the said money.

‘ETUATE LA VULA VU

Count 4

Abetment to Obtaining Money by False Pretences, contrary to section 8 and 164 of the Criminal Offences Act

PARTICULARS OF THE OFFENCE

‘Etuate Lavulavu ofVava'u on or about 29 May 2014, at Nuku’alofa together with ‘Akosita Lavulavu, you did obtain $164,400 from the Ministry of Education and Training by false pretence, by indirectly encouraging ‘Akosita Lavulavu to represent in an application for funds from the Technical Vocational Educational Training Grant that there were 255 students at ‘Unuaki ‘o Tonga Royal Institute for semester I of 2013 but you knew that was false, and you intended for the Ministry of Education and Training to act on that false representation, and the Ministry of Education and Training relied on that false representation and paid the said money.

Count 5

Abetment to Obtaining Money by False Pretences, contrary to section 8 and 164 of the Criminal Offences Act

PARTICULARS OF THE OFFENCE

‘Etuate Lavulavu of Vava'u on or about 18 November 2014, at Nuku’alofa together with ‘Akosita Lavulavu, you did obtain $249,600 from the Ministry of Education and Training by false pretence, by indirectly encouraging ‘Akosita Lavulavu to represent in an application for funds from the Technical Vocational Educational Training Grant that there were 416 students at ‘Unuaki ‘o Tonga Royal Institute for semester 2 of 2014 but you knew that was false, and you intended for the Ministry of Education and Training to act on that false representation, and the Ministry of Education and Training relied on that false representation and paid the said money.

Count 6

Abetment to Obtaining Money by False Pretences, contrary to section 8 and 164 of the Criminal Offences Act

PARTICULARS OF THE OFFENCE

‘Etuate Lavulavu ofVava'u on or about 29 May 2015, at Nuku’alofa, together with ‘Akosita Lavulavu, you did obtain $162,600 from the Ministry of Education and Training by false pretence, by indirectly encouraging ‘Akosita Lavulavu to represent in an application for funds from the Technical Vocational Educational Training Grant that there were 271 students at ‘Unuaki ‘o Tonga Royal Institute for semester 1 of 2015 but you knew that was false, and you intended for the Ministry of Education and Training to act on that false representation, and the Ministry of Education and Training relied on that false representation and paid the said money.

[12] It is evident that the changes made to the indictment were:
(a) The original indictment of three joint counts involving Mr and Mrs Lavulavu was split into six counts, three for Mrs Lavulavu and three for Mr Lavulavu;
(b) The participants were described as acting “together with” the other.
(c) In Mr Lavulavu’s case, reliance was placed on s 8 as well as s 164 of the Criminal Offences Act and an allegation was added that his role in the offending was “by indirectly encouraging” Mrs Lavulavu to make the relevant representations;
(d) For all counts, the indictment added “and you intended for the Ministry of Education and Training to act on the false representation”.
(e) For Count 3, the particulars identify the representation was made “through Mele Tovi” (an employee of the Institute)

A Preliminary Point

[13] Mr Lavulavu submitted there was no power to amend the indictment on the retrial directed by this Court. He had relied at an earlier stage in the Court below on clause 12 of the Constitution which provides:

Accused cannot be tried twice

No one shall be tried again for any offence for which he has already been tried whether he was acquitted or convicted except in cases where the accused shall confess after having been acquitted by the Court and when there is sufficient evidence to prove the truth of his confession.

[14] Lord Chief Justice Whitten had already dealt with this point in a ruling made on 24 November 2022. He found^[2] that the effect of the order of the Court of Appeal quashing the verdicts was that there was no verdict in respect of the indictment presented upon which the original trial proceeded. He considered that the legal definition of the word “quash” was to make void or annul. It followed that there was no risk of double jeopardy to which clause 12 is directed.
[15] Although Mr Lavulavu acknowledged he had not appealed this point he nevertheless advanced this submission before us. It is as well that we deal with the point in case it should arise again. We agree with the conclusion reached by the Lord Chief Justice. Clause 12 of the Constitution is directed to the common law doctrines of autrefois and autrefois acquit.^[3] The effect of the order made by this Court was to place Mr and Mrs Lavulavu in the same position as they were before convictions were entered. In other words, they are to be treated as if they have been neither previously convicted nor acquitted of the index offending.
[16] It follows that Mr Lavulavu’s related submission that s 17(2) of the Court of Appeal Act was invalid for inconsistency with clause 12 of the Constitution must also be rejected. Section 17(2) provides:

Subject to the special provisions of this Act, the Court of Appeal shall, if they allow an appeal against conviction, either quash the conviction and direct a judgment and verdict of acquittal to be entered or if the interests of justice so require, order a new trial.

[17] Mr Lavulavu sought to draw a distinction between a “new trial” in terms of ss 17(2) and this Court’s order that there be a “retrial”. In this context, there is no material distinction between the two. However, a question arises about whether the trial court has power to permit or direct an amendment of the indictment if the prosecution decides to proceed with a new trial.
[18] The powers of the Supreme Court to amend an indictment were dealt with by this Court in R v Fukofuka^[4] albeit not in the context of a new trial. There, an issue had arisen about the effect of clause 13 of the Constitution which, with some exceptions, provides that no one shall be tried on any charge but that which appears in the indictment, summons or warrant for which that person is brought to trial. This Court held:

[27] This provision must be read with clause 89 of the Constitution which confers upon judges the power to direct the form of indictments. This provision, supplemented by the inherent jurisdiction of the Supreme Court to control its processes to ensure the proper administration of justice, enables the trial judge to direct the amendment of an indictment appropriately so long as any such amendment does not conflict with the Constitution or any enactment.

[28] So, for example, the judge may direct an amendment of the charge to conform to the proof established by the evidence; to amend the indictment in all or any of the ways set out in Clause 13 of the Constitution; or as permitted by section 196(2) of the Criminal Offences Act in relation to alternate charges. It should also he noted that section 42 of the Criminal Offences Act deals with the substitution of lesser charges in murder trials and with the circumstances in which an accused may be convicted of included charges.

[29] All these provisions demonstrate that, subject to the identified restrictions in the Constitution or by statute, there are extensive powers to present and amend an indictment in the Supreme Court and that the charges presented are not confined to those upon which the accused is committed for trial. This conclusion is consistent with the proper administration of justice in the criminal jurisdiction.

[19] As Lord Chief Justice Whitten observed in the judgment under appeal, the Court of Appeal Act and its Rules are silent on the issue of amendment before a new trial or retrial. Nor, it appears, are there any other statutes or criminal procedure rules in force in Tonga which address this issue. However we are satisfied, consistently with Fukofuka, that the Supreme Court has inherent jurisdiction to control its processes to ensure the proper administration of justice and that this extends to permitting or directing an amendment of an indictment after a new trial or retrial is directed by this Court. We do not accept the submission made by Mr Lavulavu that leave of this Court is required to permit any such amendment. No condition or limitation of this kind was imposed by this Court when directing the retrial. It was envisaged that any application for leave to amend the indictment would be made and dealt with in the Supreme Court.
[20] Whether the Supreme Court should exercise its discretion to permit or direct an amendment of the indictment is a matter in the discretion of that Court including consideration of whether any such amendment would amount to an abuse of process or is otherwise inappropriate.
[21] For completeness, we record that Mr Lavulavu had, at an earlier stage of the proceedings, relied on the application of certain UK statutes which he had submitted had the effect that, where a retrial was directed on appeal, he could only be retried on the same offence and on the same facts. The Lord Chief Justice had rejected this submission but dealt with it again on the ruling under appeal and again dismissed it. We do not intend to deal with this issue in detail. Suffice to say that we agree with the conclusions and reasoning of the Lord Chief Justice as recorded in paragraphs 111–122 of the judgment under appeal. Essentially, resort to UK statutes is no longer part of the law of Tonga since ss 3 and 4 of the Civil Law Act were amended by ss 2 and 3 of the Civil Law Amendment Act 2003.

Abuse of Process- Legal principles

[22] Lord Chief Justice Whitten undertook an extensive review of Commonwealth authorities dealing with the principles relating to an application for a stay of proceedings on the grounds of abuse of process. It is unnecessary for us to review his analysis of the relevant case law^[5] which we gratefully adopt. For present purposes, we summarise the relevant principles:

(a) The Court possesses an inherent power to protect the integrity of its own processes, to prevent those processes being used in a manner which gives rise to injustice, to prevent abuse of process and to safeguard the administration of justice;^[6]

(b) The High Court of Australia in Moti^[7] has identified two fundamental policy considerations. First, “the public interest in the administration of justice requires that the Court protect its ability to function as a Court of law by ensuring that its processes are used fairly by State and citizen alike”. Second, “unless the Court protects its ability to so function in that way, its failure will lead to an erosion of public confidence by reason of concern that the courts’ processes may lend themselves to oppression and injustice”;^[8]

(a) The touchstone in every case is fairness^[9] but abuse of process is not confined to circumstances in which the defendant will not be able to have a fair trial. It also includes circumstances where the court’s processes are being so misused that to proceed with the prosecution would tarnish the court’s integrity or offend the court’s sense of justice and propriety. The hallmarks of conduct that warrant a stay will often be bad faith or improper motive but may also simply be a change of course by the prosecution having a serious prejudicial effect on the defendant.^[10]
(b) It is necessary to balance the interests of the accused with the community’s right to expect that persons charged with criminal offences are brought to trial;
(c) The applicant bears the onus of establishing an abuse of process which justifies a stay;^[11]
(d) A permanent stay of proceedings for abuse of process is a measure of last resort, to be used sparingly and in compelling circumstances;^[12]
(e) The circumstances which may constitute an abuse of process are many and varied and the Court should not attempt to define the circumstances which may amount to such abuse.

Consideration

[23] Mr Lavulavu submitted that the amended form of indictment constituted an abuse of process on a variety of grounds we summarise as follows:

• (a) It amounted to a completely different charge;
• (b) The prosecution was impermissibly “patching up” its case;
• (c) It introduced a new element of intention and was prejudicial;
• (d) He would be facing new and different evidence;
• (e) It introduced the element of “indirectly encouraging” Mrs Lavulavu to make the alleged representations and was also prejudicial.

[24] We cannot fault the Lord Chief Justice’s conclusions and reasoning on these points. His Lordship said:^[13]

86. The present amendments, expressly invoking section 8 do nothing more than give effect to the Court of Appeal’s decision. It was one of correcting the legal characterisation of the allegations against Mr Lavulavu, not a change to their factual substratum or the substantive offence to be considered at retrial. In that way, the reference to section 8 in the amended indictment serves to refine and add precision to the allegations against Mr Lavulavu by specifying his alleged role in the offending. The requisite element of section 164, for both Defendants in each count, of false pretences, remains unchanged.
87. As Cato J, explained in Taliai,^[14] the accessorial liability provisions of section 8 of the Act do not create a separate offence. It merely prescribes the circumstances, actions and role by which a person, other than a principal offender, may be liable in respect of the offence. Section 8 therefore does not give rise [to] any additional or different legal elements to the offence created by section 164, ...

[25] Mr Lavulavu had placed strong reliance in the Court below on a decision of the NSW District Court in Hamzy v R.^[15] However, we are satisfied for the reasons the Judge gave that this case is readily distinguished from the present.
[26] As the Lord Chief Justice pointed out, this Court has said the prosecution evidence was sufficient to support convictions for the offence under s 164 which remains the charge Mr Lavulavu is facing. As well, there is no suggestion here of any alternative or different charge being alleged in the amended indictment.
[27] We are satisfied for the reasons given by the Lord Chief Justice that there is no basis for Mr Lavulavu’s submission that the prosecution was impermissibly “patching up” its case by the amended indictment. Nor are we persuaded there is any prejudice to Mr Lavulavu in the addition of the intention element in the amended indictment. This does nothing more than give effect to this Court’s decision about the mens rea elements the prosecution is required to prove. If anything, the amendment places an additional onus on the prosecution
[28] As to the submission that Mr Lavulavu would be required to face new and different evidence, we note that the Lord Chief Justice accepted Mr Lutui’s advice that the prosecution would be essentially relying on the same evidence adduced at the first trial with the exception of any additional evidence resulting from Mr Lavulavu’s change of stance on his prior agreement to admit certain facts. Mr Lutui confirmed this remained the case.
[29] There is nothing in the submission that the addition of reference to Mele Tovi in Court 3 is prejudicial or a material change. The prosecution case has always been that identified Institute staff including Mele Tovi, were directed by Mr and /or Mrs Lavulavu to undertake the grant applications.
[30] Finally, under this heading, we note that the Lord Chief Justice directed that the prosecution should provide particulars of the allegation of indirect encouragement. In that respect Mr Lutui provided us with a copy of a statement of facts which was filed and served on 2 June 2023.
[31] During the hearing of the appeal, we proposed a small amendment to Counts 4, 5 & 6 of the indictment to better reflect the mens rea elements to be proved for accessory liability. We proposed in each case that the last four lines should read:

“... but you knew that was false and you knew ‘Akosita Lavulavu intended for the Ministry of Education and Training to act on that false representation, and the Ministry of Education and Training relied on that false representation and paid the said money.”

[32] This reflects the mens rea for the crimes alleged against Mr Lavulavu. The Crown must prove beyond reasonable doubt that he knew the representation was false and that Mrs. Lavulavu intended the Ministry to act on it.
[33] Mr. Lutui had no objection to this proposed amendment but it was opposed by Mr. Lavulavu and by Ms Fa’anunu & Ms Afu for Mrs Lavulavu. We consider the amendment is appropriate and would not materially prejudice Mr or Mrs Lavulavu. We have power to direct the amendment of any indictment under Clause 89 of the Constitution and Order 8 r1(2) of the Court of Appeal Rules 1990 and we intend to do so.

Were there any other grounds which amounted to an abuse of process?

[34] In his notice of appeal and submissions Mr Lavulavu raised numerous other grounds in support of his contention that there had been an abuse of process such that a fair trial could not be held. Some of these had not been raised in the court below. In summary, the grounds raised were:

• (a) There was unjustified delay since he was first arrested;
• (b) There was improper manipulation or misuse of evidence;
• (c) Evidence had been lost or destroyed;
• (d) There had been adverse publicity in the media;
• (e) The ruling of the Lord Chief Justice under appeal was unfair and constituted apparent bias.

[35] The first two grounds had not been raised in the Court below and we do not have the benefit of the views of the Lord Chief Justice on them. However, the events in question occurred in 2013 to 2015 and it is now over five and a half years since Mr and Mrs Lavulavu were arrested. They have been in custody for over a year and more than two years have elapsed since their original trial before Cooper J.

Delay

[36] Delay is inherent in any judicial system and is undesirable. Where it is unjustified and leads to serious prejudice such that a defendant is unable to have a fair trial, it may support a finding of abuse of process and may lead to the dismissal or permanent stay of the charges. The central question is whether a fair trial is still possible in the light of the prejudice caused to the defendant by the delay.^[16]
[37] In the present case Mr Lavulavu complained there had been delay in obtaining full transcripts of the evidence at the original trial but acknowledges these were received in August 2022. He alleges further that the Audit Office unlawfully removed all the Institute’s documents without obtaining the approval of the managing authority of the Institute. The Crown does not accept this and says documents were removed with the consent of the Institute. This issue was raised in the Court below and subpoenas have been granted for their production from the Audit Office along with documents from other institutions. That is a matter for Mr Lavulavu to pursue.
[38] Mr Lavulavu stated that some witnesses had died or had moved away. One was Ms. Emily Pouvalu who signed the relevant grants. She was too ill to give evidence at the first trial and has since died. Another who worked in the finance division of the Ministry has since died. The evidence expected from these witnesses will be given by other Ministry staff.
[39] Mr Lutui informed the Court that the prosecution had given notice on 19 April 2023 of the documents it intended to rely upon; on 27 April 2023 the prosecution had given notice of its request for witness subpoenas to issue; and on 2 June 2023 it provided Mr Lavulavu with the summary of facts we have already mentioned.
[40] The prosecution intends to rely on 12 witnesses all but one of whom gave evidence at the first trial. The exception is a police officer who has since died and whose evidence will now be given by another officer. In addition, the prosecution intends to call up to 150 student witnesses. This is necessary because sensible agreements dispensing with the need to call these witnesses have not been maintained.
[41] While the delay since the arrest of Mr and Mrs Lavulavu has been significant, we are not persuaded that any of these matters is such as to preclude a fair trial or to justify the allegation of abuse of process.
[42] Mr Lavulavu submitted that the Institute itself as the relevant legal entity ought to have been charged rather than himself and his wife. There is nothing in this point. The prosecution is entitled to charge the individuals responsible for the alleged crime of obtaining by false pretences. He also alleged that the Attorney-General and prosecutors had refused to provide a copy of the complaint leading to their arrest, had acted dishonestly in the preparation of the indictments and the making of submissions and tried to hide evidence. As well, he submitted the Police had threatened witnesses, especially students and employees of the Institute, when interviewing them and had manipulated statements. He also alleged that the Attorney-General had acted unfairly and abused her powers.
[43] These allegations lack specificity and are unsupported by any evidence. We reject them accordingly. We add that there is no obligation to disclose the identity of the complainant in the circumstances of this case where the complainant is not a material witness. To do so would compromise the ability of the police in the detection and investigation of criminal conduct and is not in the public interest.

Loss of or destruction of evidence and adverse publicity

Similarly, no evidence is offered to support the allegations of the loss or destruction of evidence or claims of prejudice through adverse publicity.

Apparent bias

[44] Finally, we also reject the allegation that the Lord Chief Justice’s ruling was unfair and constituted apparent bias. There is nothing in the extensive materials before us to suggest that the Lord Chief Justice was unfair in any way to Mr Lavulavu or exhibited any favouritism to the prosecutors. By this judgment, we have found his careful and thorough ruling to be correct in law in all respects. This ground is also rejected.

Result:

1. The appeal is dismissed.
2. We direct that counts 4, 5, and 6 of the indictment be amended as set out in [31] hereof.
   

Randerson J

Harrison J

Dalton J

---

^[1] Lavulavu v The Queen [2022] TOCA 22.
^[2] As recorded in paragraph 28 of the judgment under appeal.
^[3] Police v Kulanoa [1908-1954] Tonga LR 104 and R v Pahulu [2021] TOSC 138.
^[4] R v Fukofuka [2019] TOCA 11.
^[5] At paras 67–80.

^[6] Strickland v Commonwealth Director of Public Prosecutions [2018] 266 CLR 325 at [113] and Moti v R [2011] HCA 50; [2011] 245 CLR 456 at [11], Connelly v DPP [1964] AC 1254 and Attorney-General of Trinidad and Tobago v Philip [1995] 1 AC 396, (PC).
^[7] Moti v R supra at [11].

^[8] In Moevao v Department of Labour [1981] NZLR 464 at 470, 473 and 478 the New Zealand Court of Appeal elaborated on the same public interest considerations.
^[9] Petroulias v R [2007] NSWCCA 154; (2007) 176 A Crim R 302 per Ipp JA at [17].
^[10] Fox v Attorney-General [2002] NZCA 158; [2002] 3 NZLR 62 at 7 (CA)
^[11] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 529.

^[12] Jago v District Court of New South Wales (supra) at [1989] CLR 23 and Rex v Tupou [2000] TOSC 35, Rex v Taloa [ TOSC 61, Fox v. Attorney-General (supra) at [37], and R v Horseferry Road Magistrates Court ex parte Bennett [1993] UKHL 10; [1994] 1 AC 42,74 per Lord Lowry.
^[13] At paras 86 and 87.
^[14] R v. Taliali [2018] TOSC 36 at [18]
^[15] Hamzy v R [2019] NSWDC 7.
^[16] CT v R [2014] NZSC 155 at 30.