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R v Lavulavu [2024] TOSC 55; CR 173-174 of 2018 (16 August 2024)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY


CR 173-174 of 2018


REX
-v-


[1] ‘AKOSITA LAVULAVU
[2] ‘ETUATE LAVULAVU


RULING
VOIR DIRE ON THE ADMISSIBILITY OF THE AUDITOR’S REPORT


BEFORE: ACTING JUSTICE LANGI


Counsels: Mr. Joe Fifita on behalf of DPP for the Prosecution
Mrs. Fitilagi Fa’anunu and Ms. Fanga Afu for Mrs. ‘Akosita Lavulavu
Mr. ‘Etuate Lavulavu in person


Hearing: 07 November 2023
Ruling: 16 August 2024


Table of Contents

A.
INTRODUCTION
2
B.
EXBIHITS
5
C.
THE CROWN’S EVIDENCE
7
D.
THE DEFENDANTS’ EVIDENCE
22
E.
CROWN’S CLOSING SUBMISSIONS
26
F.
CLOSING SUBMISSIONS: FIRST DEFENDANT MRS. ‘AKOSITA LAVULAVU
32
G.
CLOSING SUBMISSIONS: SECOND DEFENDANT MR. ‘ETUATE LAVULAVU
37
H.
CONSIDERATIONS
40
I.
FINAL RESULT
48

  1. INTRODUCTION
    1. On 10 October 2022, the Court of Appeal quashed convictions against both Defendants for obtaining money by false pretenses and ordered a retrial.[1]
    2. The retrial was set to run before the then Lord Chief Justice Whitten on 08 May 2023. The Crown intended to rely, as it had during the first trial before Cooper J, on a report from the Auditor General dated 5 October 2016 (“the Report”). However, on 1 May 2023, the Defendants’ filed objections to the admissibility of the Auditor General’s Report.[2] I note that the Defendants’ raised a similar objection before Cooper J but which was apparently abandoned during the first trial.
    3. The retrial was initially listed to commence in May 2023. Due to issues and a subsequent appeal arising from the Crown’s amendments to the indictment shortly beforehand, the retrial could not proceed.
    4. On 14 July 2023, directions were issued in respect of the objections as to admissibility and after several delays and adjournments, the objections were listed for hearing before LCJ Whitten on 18 August 2023.
    5. However, on that date, the Defendants had again failed to comply with the directions to file supplementary submissions by 4 August 2023.
    6. On 16 August 2023, Mr. Lavulavu filed supplementary submissions in respect of his objections to the Report and contended that the process by which the Auditor General produced his Report was improper, unlawful, unreasonable, irrational, procedurally unfair and is unacceptable.
    7. Former Lord Chief Justice Whitten determined that the content of those supplementary submissions would have to be dealt with by way of a voir dire, including the calling of evidence.
    8. As a result, His Lordship directed the Crown to file submissions in response to Mr. Lavulavu’s supplementary objections by 15 September 2023.
    9. The hearing of Mr. Lavulavu’s objections was listed for 16 October 2023, being the first day of the re-listed retrial. I was assigned the file, and the parties were informed that I would be hearing the voir dire and retrial. Yet, on 10 October 2023, the Defendants’ filed an application for my recusal on the ground of apparent bias. After hearing arguments, I refused the application. The Defendants’ appealed that ruling, and that appeal was subsequently dismissed.
    10. As a result, the voir dire did not commence until 7 November 2023.
      1. The defendants’ grounds of objection to the admissibility of the auditor general’s report
  1. As mentioned above in paragraph 2, on 1 May 2023, the Defendant’s had filed several grounds of objection to the admissibility of the report.[3]
  2. Numerous supplementary submissions were later filed by the Defendants’ and by the commencement of the voir dire, the grounds of objection had reached approximately 23 grounds;
  3. On 3 May 2023 the Crown filed a response to the then grounds of objection referred to above;[4]
  4. The voir dire therefore commenced on those grounds of objections by the Defendant’s and response by the Crown;
  5. However, on 11 December 2023, during the evidence of Crown witness, Popua Mafi, Mrs. Fa’anunu for the First Defendant and Mr. Lavulavu complained that the Crown was proceeding far beyond what was required to prove that the Auditor General’s report was admissible.
  6. The Defendants’ filed written submission on the scope of the voir dire on 12 December 2023.[5] A further submission was filed with a recommendation to declare a mistrial and for me to retract a ruling I had made on the order of cross-examination and in which I allowed the worksheet to be tendered as an exhibit;[6]
  7. On 13 December 2023, the Crown filed written submissions in response.
  8. After considering the submissions of both parties on the scope of the voir dire, I agreed with Mrs. Fa’anunu and Mr. Lavulavu that the evidence by Crown witness Ms. Popua Mafi may have exceeded the scope of the voir dire. Despite this, I also conveyed to Ms. Fa’anunu and Mr. Lavulavu that they too had contributed to the evidence going beyond the scope of the voir dire by their duplicated grounds and factual assertions which had given notice to the Crown of the matters to cover and the scope of the voir dire.
  9. After further discussions, it was agreed that the Defendant’s would review their grounds of objections and the Crown would file an amended response to those amended grounds.
  10. On 18 December 2023, the amended grounds of objections was filed on behalf of the First Defendant.[7] On 31 January 2024, I issued written directions on the scope of the voir dire;[8]
    1. The revised grounds of objection to the admissibility of the Auditor General’s Report
  11. Before the continuation of the evidence of Popua Mafi and during discussions on the scope of the voir dire, I informed the parties that the only grounds that I would consider for the purposes of this voir dire were hearsay and unlawfully obtained evidence. I informed them that I would not be concerned with any issues of credibility or reliability, as they were matters for the trial proper.
  12. The Defendants’ refused to heed my directions. The First Defendant proceeded to file the following revised grounds of objection:
    1. The report was not a report of the Auditor General and he only rubber stamped it;
    2. The report is hearsay and in breach of section 88 of the Evidence Act;
    1. The audit report is unclear or decisive on relevant aspects and therefore prejudicial to the defendants;
    1. The audit report infringed on the defendant’s rights to natural justice into the conduct of the audit of the school and the audit report.
  13. Mr. Lavulavu adopted the same amended grounds of objections but added that:
    1. The audit report, worksheet and the UTRI documents are hearsay documents;
    2. The audit report is illegal or unlawful;
    1. The audit report is unreliable evidence;
    1. The audit report has no relevance to the charges against the Defendants’;
    2. Prejudicial;
    3. The audit report is not a report of the Auditor General as the report was informed by the worksheet;
  1. EXBIHITS
  1. The following exhibits were tendered throughout the course of the voir dire.
  2. The Prosecutions Exhibits:
  3. The First Defendant’s Exhibits:
  4. The Second Defendant’s Exhibits:
  1. THE CROWN’S EVIDENCE
  1. The Crown called Salome Lavemaau, Lutimila Tafea, Popua Mafi, who were audit officers employed at the Auditor General’s Office and the Auditor General, Sefita Tangi.
  2. Given the voluminous evidence from each witness, I do not propose to recite all of it but will summarize those parts that are relevant to the legal issues I had directed the parties to focus on, namely, hearsay and unlawfully obtained evidence.
    1. Salome Lavemaau
  3. The first witness was Salome Lavemaau. She is an audit officer at the Auditor General’s office and has been employed there for 9 years. She has had experience in auditing several educational institutions in Tonga including the Catholic schools and the Free Wesleyan schools and other private schools.
  4. In 2016, Salome was part of a team assigned to audit the relevant TVET grants to ‘Unuaki ‘o Tonga Royal Institute (UTRI) together with Lutimila Tafea and Sefita Leha. Popua Mafi had not yet joined them. Sefita was the team leader.
  5. They were directed to audit the school for the period Semester 1 of 2013, Semester 2 of 2014 and Semester 1 of 2015;
  6. Salome’s role was to review the expenses for which the grants were used. Fifty percent of the grant was to be used for teachers’ salaries with the remaining fifty percent divided between teaching and learning resources. She carried out the audit in relation to the teaching and learning resources. That accounted for 25% of the grant. Lutimila Tafea carried out the audit for minor reservations which accounted for 25% of the grant;
  7. Salome was provided with UTRI financial statement and receipts. She then compared the financial statements with the receipts. She noticed that the details on the receipts were inconsistent with the financial statements. Upon further review of the documents, she noticed that the majority of the receipts were not for expenses for renovating the school which was the main purpose of this part of the grant. Consequently, when the expenses did not add up, she submitted her report in which she stated that she was not satisfied with the information provided.
  8. The audit took approximately 3 to 4 weeks which was the normal period for schools. Prior to conducting the audit of UTRI, she had been involved in carrying out the audit of ‘Ahopanilolo in relation to TVET grants. Salome was also involved in going out to various villages with Lutimila Tafea and Popua Mafi, to interview students whose names were on the UTRI enrolment list.
  9. The interviews were recorded on a worksheet. The interviews were necessary to confirm the correct number of students because when the officers discussed their findings, it was apparent that some of the names on the UTRI list were also names of students that were on the list of students for ‘Ahopanilolo for the year 2015. Popua Mafi first noticed that the names form the ‘Ahopanilolo list were also on the UTRI list. They therefore had to search for these students to confirm whether they had attended UTRI;
  10. They commenced going out to the villages to interview students in June 2016. The interview dates, name of the interviewer and those interviewed were recorded on the worksheet. Sometimes the actual students would not be present and the person who was being interviewed was written in a bracket beside the name of the student;
  11. The UTRI enrolment list contained each student’s name and the village in which she/he resided. The officers categorized the names and villages and began their interviews from Ma’ufanga and went out from there;
  12. They had already discussed how the interviews were going to be conducted. They would find the homes of the students listed and inform them that they wish to interview them. Then they asked the following questions:
    1. Did you attend UTRI?
    2. What year did you attend?
    1. How were your school fees paid?
  13. After the answers were recorded, they were read back to the student and if they were happy with those answers, the student was then asked to sign the worksheet.
  14. It was important for them to ask the students their form of payment for school fees because the UTRI documents contained different forms of payment such as student loan or by Tongan goods and so forth.
  15. The student interviews were carried out when they had returned back to their office after completing the audit at the UTRI compounds. Due to the nature of their findings and certain suspicions surrounding those findings, they needed to return to their office to conduct a more thorough investigation of those matters of concern.
  16. When they left the UTRI compound, they left all the UTRI documents in the room they had been allocated at UTRI to use for the audit. However, when they discussed their findings with their supervisor, Maama Fotofili, he directed them to return to UTRI and to bring back the enrolment books.
  17. They returned to UTRI and retrieved those documents and then drove by the office. Salome saw ‘Akosita Lavulavu, Mele Tovi and others inside the office. Popua Mafi told them that they were taking the documents to conduct further work on them to which ‘Akosita said “Yes, it’s okay.”
  18. During cross-examination by Mr. Lavulavu, Salome stated that she was an assistant auditor at the time of the UTRI audit and by the time of giving evidence she had been promoted to the rank of auditor. She was also an authorized officer and lawfully able to conduct audits of educational institutions in Tonga. The reason she concluded that the expenses for this part of the audit were unreliable was because the purpose of this grant money was to aid student resources intended for learning purposes for the students and the teachers.
  19. Salome interviewed 42 of the 170 students interviewed by the team. After counting the exact names on the list she agreed there may be a total of 178 students because some names may have been recorded twice. During cross-examination by Mrs. Fa’anunu, Salome stated that when they had completed the audit of UTRI they returned to their office. They were directed by the Deputy Auditor General at the time, Maama Fotofili, to expand the scope of the audit and go out to the villages to conduct interviews of students. They did not notify UTRI or the Ministry of Education that they had expanded the scope of the audit to go out to the villages to interview students. The audit officers who conducted the field work and interviews were herself, Lutimila and Popua Mafi. They discussed their findings and compiled a report based on their interviews of students.
  20. Salome was not involved in the compiling of the report. Her role was limited to recording the interviews. It was Popua Mafi and another person named ‘Ilaisaane Sikalu who compiled the report. When she had concluded her findings at UTRI, Salome submitted a report to her superiors who later used that part of the report to compile the Auditor General’s report.
  21. They went back to UTRI on 9 June 2016 to retrieve documents to finalize their report. They did not give UTRI a written notice that they intended to take the documents and there was nothing in writing to outline the documents they took. They only went and took the documents from where they had carried out the audit and stopped by the office and verbally informed ‘Akosita and Mele Tovi that they were taking the documents. ‘Akosita Lavulavu was in the office that day because she had seen her there.
  22. In re-examination, Salome said they were requested to carry out an audit of UTRI in relation to grant money from the government which had been used. Each audit officer had a different work plan on how to carry out their individual audit. Her work plan was different from Lutimila and Popua Mafi. The work plans are prepared by their supervisor Maama Fotofili.
  23. Salome agreed that it was not normal to go out and interview people in previous audits because there had been no suspicion in relation to previous audits. But in this case they had noticed names of students who had attended ‘Ahopanilolo also being on the UTRI student list.
  24. Salome said that it was normal for the audit team to take documents from schools to carry out work at their office. The procedure is that they would verbally inform the schools that they would take some documents back to the office to work on them and then return them.
    1. Lutimila Tafea
  25. In 2016, she was part of a team assigned to audit the relevant TVET grants to ‘Unuaki ‘o Tonga Royal Institute (UTRI).
  26. They were requested to audit the TVET grant money received by UTRI and how the money had been spent. There was a Cabinet Decision which stated that 50% of the money was to be used for teachers’ salary and the other 50% was to be divided into 25% for teaching and learning resources and the other 25% for minor renovations.[9]
  27. Lutimila’s role was to audit the expenses for minor renovations. For that purpose, she required invoices from hired contractors that had carried out the renovations, bank statements and invoices. She also wished to talk to the contractors.
  28. After she assessed the documents provided and carried out physical examinations of the buildings and renovations claimed, she was not satisfied that the expenses added up. Her suspicions heightened when she found out that the company that had carried out the so-called renovations were registered to the name of ‘Etuate Lavulavu and ‘Akosita Lavulavu;
  29. They were at UTRI for 3 to 4 weeks before returning to their office. Because of the suspicions formed during their assessments and findings, they were required to return to their office and report to their supervisor.
  30. One of the factors that put them on alert was the names of students who were already enrolled at ‘Ahopanilolo, listed as students of UTRI. After reporting to their supervisor, they were ordered to carry out a special audit.
  31. Lutimila explained that a normal audit required only an assessment of the documents provided to them by UTRI. In contrast, a special audit required them to go beyond their normal procedure and conduct interviews with the students on the list.
  32. For the interviews, they used a list of names already provided by UTRI and the list had telephone numbers for students. They found that most of the phone numbers were not in operation. They then had to physically go out to the villages shown on the list and asked the names of the students.
  33. If they found the person whose name was on the list, they would carry out the interview straight away. One of the audit officers would ask the questions and another one would record the questions and the answers.
  34. There were some days when only herself, Salome and Popua Mafi would go out to carry out the interviews. However, there were other days when they were joined by other audit officers.
  35. The normal process was that Popua Mafi would ask the questions, and the answers were recorded by either herself or Salome Lavemaau;
  36. The information they were after in interviewing the students were:
    1. Whether they had attended UTRI,
    2. If yes, what year did they attend UTRI and,
    1. The form of payment for their school fees.
  37. The importance of the first question was so they can confirm that the registration of this person’s name as a student of UTRI was correct. The second question was relevant to confirm which year of the three years being audited did that person attend and the third question was to identify what form of payment had been made for school fees, such as whether paid by cash or other forms of payment.
  38. The importance of knowing the payment form was to confirm whether this person had paid cash. If the student had paid cash, then it would show in the receipt book. If the student used other forms of payment, they would need to determine what those forms of payment were.
  39. Sometimes they would ask a student’s name and were told there was no such person. Other times the actual person they were looking for was not at home so members of their family were interviewed.
  40. Lutimila said that they would just go to the villages and ask people walking on the road if they knew so and so.
    1. Popua Mafi
  41. She has been working for the Auditor General’s office since 2009. She started out as an assistant auditor and is now a senior auditor. Her qualification is a New Zealand Diploma in Business.
  42. The Auditor General’s office received a request from the Ministry of Education to conduct an audit on UTRI for the year 2015. Their team is the Compliance Audit team in which the grants from Ministry of Education (“MET”) fall under, supervised by Maama Fotofilia (“Maama”).
  43. MET provided them with UTRI’s 2015 TVET grant application.[10] The application listed the total number of students to be confirmed in the audit. They went to MET to request the payment vouchers for 2015 and found out there were also payouts under the TVET grant in 2013 and 2014.
  44. For the Compliance Audit, they are guided by the directions set out in Cabinet Decision No.1182.[11] The decision sets out the amount allocated to each student, how the money would be used and the type of expenses allowed under the grant.
  45. They assess the receipts and documents provided to ensure the grant money is used according to the cabinet decision. The government policies that guide their work in auditing TVET grants are listed in Exhibit 9.[12]
  46. They requested documentation and records of UTRI’s payroll system and the teachers that were registered under the school. The goal here was to verify the grant funds were being used for teachers salaries.
  47. The audit team did not receive UTRI’s payroll information as it was not done through banking systems. UTRI did not have any automated system and used manual means to distribute salaries. The documentation made available to them was unreliable, and they could not confirm the list of teachers were people that taught at the school.
  48. Popua and the audit officers reviewed receipts from 2013, 2014 and 2015. Cabinet decision 367 was clear that only students who had paid their school fees or “receipted students” would be eligible to receive money from the grant.[13]
  49. They concluded that the receipts were reliable as they showed where money had been paid, receipted and a copy given to the other person. However, upon closer scrutiny, they noticed anomalies in the last day of March, in the first receipt book for 2014.
  50. As a result, they requested further documents, the individual student enrolment applications, to give more information and to clarify what was shown on the receipts.
  51. After assessing the student roll calls and individual student enrolment applications, the team reported their findings to Maama, who then reported it to Sefita Tangi. They were directed to shift and conduct a special audit. This expanded the scope of the original compliance audit meaning they were to look deeper into the school’s records.
  52. The special audit meant that they had to sift through individual student applications, call student phone numbers and approach them directly to get information and ensure that these students existed and attended school.
  53. They found that a lot of the individual student application forms were incomplete. Forms were missing passport photos, copies of student birth certificates and portions of the form left blank. They also noted inconsistencies in signatures throughout the student loan agreement and the enrolment application for several students.
  54. Moreover, they noted receipts of students whose fees were receipted after the cut off dates for a semester, making them ineligible for the grant. They also discovered from the interviews and talking to individuals and their relatives that some of the names of students listed for UTRI had absolutely no relation to the school and never attended.
  55. Popua also found that the majority of the documents provided were unreliable and false due to the inconsistencies and information they gathered from the interviews conducted.
  56. Once their investigation concluded, the audit team met in their office where all their findings were compiled into the worksheet.
  57. Using the information they had gathered from their fieldwork and audit at UTRI, Sisi’uno prepared the draft report. This draft was submitted to Sefita for review. During the review, they met with the Auditor General to discuss their findings.
  58. The final report for UTRI included tables showing the number of students classified under certain headings according to the answers collected through the interviews they conducted.[14] These included classifications of students that paid their fees by student loan agreements, commodity exchange, working part-time for the institute and unverified receipted students.
  59. During cross examination by Mr. Lavulavu, Popua stated that prior to the audit, UTRI was instructed to prepare 2015-related documents, such as invoices and receipts, for the audit team.
  60. Upon visiting UTRI, the audit team also requested student attendance sheets. They were informed that roll call was done electronically. Popua concluded that this was unreliable as it had potential for tampering.
  61. During the audit, students were interviewed with three key questions: if they attended UTRI, the year of attendance, and how their fees were paid. Popua conducted the interviews, and one of the audit officers would record their answers.
  62. The process of conducting the interviews was, identifying themselves as audit officers to the people they found, informing them that they were conducting work in relation to UTRI and if they would be willing to answer a few questions. Of all the people they interviewed, no one refused to answer their questions, and they were informed their answers would be recorded by one of their officers.
  63. When students were unreachable, interviews were conducted with their relatives. The information from these relatives was considered reliable due to their close relationship with the students, though no further verification was done and only one attempt to contact the students was made.
  64. Exhibit 16 (“the worksheet”) has no record of the questions that were asked to the people that were interviewed, or that they were protected by the law if they responded to their questions.[15]
  65. She agrees UTRI was not informed of the interviews taking place and never consented to them conducting interviews on the students. Once the interview was complete, the worksheet was given to her to compile and assist in drafting.
  66. Popua stated that proper documentation of work procedures is important as it also speaks to reliability of that document. It was one of the main reasons why they deemed the student applications unreliable because they were incomplete.
  67. Popua did not agree to the suggestion that because some interviewees did not sign the worksheet did not record all the work that was done. She could not recall why some of the people interviewed had not signed.
  68. Popua agreed that the worksheet contained statements with no name listed as to who had given that statement. In auditing standards, such a statement is unreliable. Despite this, she maintained that the worksheet was complete. She conducted the interviews with the team, and the information on the worksheet was the full record of their work.
  69. On 9 June 2016, she and the audit team were instructed by their supervisor to return to UTRI and bring the UTRI documents used for the audit, back to the office. This was to enable them to scrutinize the documents further.
  70. Popua, Lutimila, Salome and the office driver went back to UTRI to collect the documents from where they had carried out the audit at UTRI. They put the documents in the vehicle and on their way out they stopped by the main office. Popua informed Mele Tovi that they were taking the documents with them back to the office. Mele Tovi said it was fine.
  71. Popua admitted that she had not interviewed all the people on the worksheet despite first stating that she had. She recalled that there had been a period during the fieldwork where she had not attended. Audit officers Patele Tongilava and Kalisi Fifita had completed some of the interviews. She confirmed that the interviews she conducted are from pages 66 to 89 of the worksheet.
  72. During cross-examination by Mr. Lavulavu, Popua stated that Maama Fotofili and Sefita Tangi were never present during the fieldwork and the interviews.
  73. Exhibit 14 is the list of 170 people that were interviewed. Two of the names on the list are duplicated. Seven names are listed but no statement recorded. Popua agreed that an error had been made in those instances.
  74. In 2015, there was a change in the procurement policy which affected the scope of the cabinet decision 1182. Popua was aware of this change in policy but did not know this impacted the regulations around the TVET Grant. The change in policy entailed that before any TVET grant can be released to any school, there must be an existing TVET agreement through a Memorandum of Understanding between TVET provider and MET.
  75. Despite the change in the policy, Popua did not agree that this affected the audit they had conducted. She maintained that all work carried out by her and the audit team was correct and in accordance with policies governing TVET grants and the relevant laws.
  76. Popua did not agree that they had stolen the documents. She stated that it was common procedure for auditors to take documents from schools for the purpose of completing their audits. When or if they required further documents from schools, they would just make a verbal request and there was no need for written requests. This was the same for all schools they are requested to audit.
  77. In re-examination by Mr. Lutui, Popua stated that the numbers on paragraphs 10 to 13 and 18 of Annex II of the Audit Report were all based on the information in the worksheet. The rest of the paragraphs were from other documents such as the student enrolment applications.
  78. She was asked to clarify the reliability of the worksheet for the answers that were noted but have no signatures. She explained, the work was conducted by their audit team, there is a level of trust and assurance that the work they conduct and the information they collect is accurate.
    1. Sefita Tangi
  79. He is the current Auditor General of the Auditor General’s Office of Tonga. He has been in office for 8 years and 8 months.
  80. He had prepared and signed the Auditor General’s Report dated 5 October 2016 for the audit of UTRI in relation to TVET grant’s that had been allocated to UTRI from the Ministry of Education for the period Semester 1 of 2013, Semester 2 of 2014 and Semester 1 of 2015.
  81. His qualifications include:
    1. a BA in accounting and economics from Western Sydney University in 1987
    2. a Master of Commerce from Macquarie University in 1997
    1. A Certified Practicing Accountant certified by CPA Australia Ltd in 1997
    1. He was made a Fellow Certified Practicing Accountant in 1999 or 2000
  82. After he received his BA in Accounting and Economics he returned to Tonga and became the chief accountant for the Free Wesleyan Church of Tonga for one year. He then worked as the internal auditor for two years. He moved to work at the government Audit Office as the chief auditor for one year before becoming the Assistant Auditor General for 10 years. He was appointed the Commissioner for Customs and Revenue in 2003 to 2011. After that he became the Technical Advisor for Australia Aid. At the same time, he was appointed as a member of the Remuneration Authority and later became the chair of the Authority in 2013 up until he was appointed as the Auditor General in 2015 up until the present time.
  83. On 7 March 2016, he received a saving gram from the Chief Executive Officer for MET requesting the audit of 5 TVET Institutions, including Semester 2 of 2015 for UTRI. He forwarded the letter to Maama and instructed him to carry out the audit of UTRI.
  84. At the time, Maama oversaw the division that dealt with TVET grants. To his understanding, the request was to audit the grants for the fiscal year 1July 2014 to 30 June 2015.
  85. The audit team assigned to carry out the audit of UTRI included Sefita Toko, Popua Mafi, Lutimila Tafea and Salome Lavemaau. Sisi’uno Sikulu joined the team when they moved to special audit.
  86. Despite the covering letter from MET only specifying semester 2 of 2015, they conducted the audit based on the materials or documents given to them. It was also important that the TVET grants were consistently audited because every dollar from the grant had to be accounted for.
  87. The cover letter from MET had several attachments to it but it was normal for some documents to be missing, such as receipts and voucher payments. The auditors would normally wait to get those documents from the audited institutions. So, when he received the request from MET, he forwarded the letter and the attachments to Maama and directed him to carry out the audit of the institutions shown in the letter.
  88. Sefita was involved with the audit of UTRI from the beginning because Maama updated him on the plans and timetable up to the end of the audit. However, he and Maama worked more closely when they switched to a ‘special audit’.
  89. The scope for a normal audit was very straightforward. But when it moves into ‘special audit’, the scope is extended to get more reliable evidence.
  90. The reason for an extension of the audit's scope is if some wrongdoing has been identified or the records cannot satisfy the auditors to the level required, so the audit is extended to test other sources of information.
  91. Paragraph 6 of the Report was based on information that was received from the result of the work carried out by the audit officers and which required the special audit stated in paragraph 7 of the Report.
  92. They were required to get direct confirmation from the students that they had attended UTRI and had paid school fees. This was required to comply with the directions in Cabinet Decision number 1182.[16] Exhibit 9 is a compilation of all cabinet decisions that incorporate the policies for TVET grants.
  93. The main purpose for the TVET grants audit was to confirm the number of students that received the grant. To confirm this from an auditor’s perspective, there were two crucial questions to be answered. Firstly, did the student pay school fees and secondly, did he or she attend school? The risk was that a student could be receipted as having paid school fees, but they did not attend school. There was also the risk of a name being submitted, but there was no such student. The same could be said if reversed, in that a name on the list could show attendance but that person never paid school fees.
  94. The importance of paragraph 8 of the Report in highlighting the practices of UTRI was to demonstrate the risk of government losing money because anyone could fill in the application forms. The most accurate way would be for the actual student to fill the application form. If someone else were to fill in the form, then there was a risk of grant money being squandered on people who were not attending school or where there were no such students. In relation to the section titled “unverified receipted students”, the numbers shown in paragraphs 11 to 13 were taken directly from the students that were interviewed.
  95. In relation to paragraph 22 of the Report showing Table 2 with paragraphs numbered 10 -18, the categorization was made based on the semester and nature of each group. Paragraph 11 of the table were students that were identified as ineligible for the TVET grant because the forms of payment had not been approved by the Cabinet decisions and there was a risk because the auditors were unable to verify the accuracy of these forms of payment.
  96. The information shown on paragraphs 11 – 18 were derived from the actual interviews of students and UTRI documents such as Student Loan Agreements and Application forms.
  97. As part of the audit process, all the information that were gathered by the audit team were assembled and used to compile the final report. This is called a worksheet, and it consisted of the planning of the work to be conducted, a summary of each area that they were concerned and then an overall summary that would then go into the report.
  98. Each officer would summarise their work, and this would be reviewed by the team leader or supervisor who would then compile an overall summary of all the divisions/areas submitted to him and he would sign off.
  99. In this case, Maama Fotofili was the Deputy Auditor General and had compiled the overall summary. The reviewing of the work carried out is done in stages. The team members first review is carried out by the team leader and from there to the supervisor who prepares a draft. The overall summary is then completed by Maama Fotofili and the last is the actual report which is completed by the Auditor General.
  100. The actual names of students are not listed in the report such as that shown on Table 2. The reason is that the numbers are only evidential information and data and part of their working paper but not part of the report.
  101. The report was sent to various people listed on the last page of the report as persons or Ministries who had a direct connection or involvement with the report. For instance, ‘Etuate Lavulavu was the director of UTRI, the Ministry of Finance is always involved as one of the Ministries in charge of the TVET funds and so forth. If any unlawful activity is apparent from the work carried out, the police will be involved to investigate.
  102. The objective or purpose of the Report is stipulated in paragraph 2 “to confirm the true and correct number of students during the period as the basis of the calculation of the total grant $600 per student per semester as well as whether the institute spent the grant money in compliance with the conditions of the TVET Grant Agreement”.
  103. The recommendation made in paragraph 24 of the report was to ensure better and proper compliance in terms of carrying out audits. So, the first recommendation for UTRI to pay back $553,800 was because they had proved that UTRI should not have received those monies and should therefore return it.
  104. The second recommendation was to disapprove the UTRI practice of recruiting from outside and using various forms of payment. It was MET to put in writing the acceptable forms of payment of school fees. If the forms of payment used had not been approved in writing by the MET, then those forms of payment should be stopped.
  105. The third recommendation was for the approval of any institute and course/s for the TVET grant purposes be complied with before any grant is paid.
  106. Lastly, the recommendation that the matter is referred to the Police was made because they had evidence that the grant money had unlawfully been used and further investigation by the police was necessary.
  107. In cross-examination by Mrs. Fa’anunu, Sefita denied any unlawful acts by the audit officers in carrying out the audit of UTRI. He maintained that they had all followed the correct procedures and guidelines for auditing all schools that received TVET grants.
  108. Sefita agreed that the audit was a compliance audit but that it was also a combination of compliance audit and financial audit. He did not agree with the suggestion by Mrs. Fa’anunu that they were required to consider relevant laws and regulations that governs compliance audit. Sefita stated that they are guided by the TVET grant policy which is composed of all cabinet decisions regarding TVET grants, and the Tonga National Qualifications Accreditation Board. He said they do not need to go to the Education Act and regulations.
  109. Sefita also maintained that a draft report of 27 July 2026 had been provided to UTRI before the final Report was issued on 5 October 2016. He said that the draft report provided to UTRI was sufficient for Mr. Lavulavu to be aware of the results of the audit before it became final. That draft report is Annex I & II which is attached to the final Report.
  110. In cross-examination by Mr. Lavulavu, Sefita again maintained that there was no breach of the Public Audit Act and that the audit carried out on UTRI was in accordance with the law. He also confirmed that the audit officers are authorized officers and are employed under section 8 of the Act. Section 15 will only operate when someone outside the Auditor General’s office is employed, for instance, a technical expert who is required from outside to assist them will have to be made an authorized officer under section 15. Sefita also stated that employees of the Auditor Generals are not required to be gazetted.
  111. Sefita further stated that he had authority to delegate the work for auditing of UTRI to the audit officers involved with the audit in 2016. He did not accept that he was physically required to carry out the audit himself.
  112. Sefita continued to maintain that the ISSAI requirements were complied with and the audit officers had carried out their duties in compliance with the law and policies referred to.
  113. Paragraph 10 states that only 19 students paid their school fees. He confirmed that they did not confirm this with UTRI because it is “not an audit procedure” to confirm with the entity their findings.
  114. UTRI should have been able to remember the names of the students from 2013 to 2016 without the records that the audit team removed from UTRI to complete the audit.
  115. The Auditor General does not accept that the defendants were not given an opportunity to respond because that was the purpose of the exit meeting in which Mr. Lavulavu provided a response.
  116. The names of the students were not released because these were the AUDIT working papers and as such were confidential evidential information.
  117. Sefita confirmed that CD 1182 does not specify school fees must be paid in cash and further elaborates that that is their assumption in accounting with the term “receipt” being used.
  118. Section 14B of the Public Audit Act is what they acted on in removing the documents from UTRI.[17] These documents should have been initially provided by the entity to MET, then from MET directly to the Auditor General’s office for auditing purposes.
  119. Mr. Lavulavu put to Sefita that the Report had not been completed by him but by Popua Mafi and Sisi’uno and that Sefita had only rubber stamped the Report. In response, Sefita stated that the Report was his even though he had not typed it up himself. Sefita said the Report was his report and he takes full responsibility for the Report.
  120. It was also put to Sefita that he had a duty to review the Worksheet to ensure that it was correct. Sefita stated that they cannot review the Worksheet because they cannot add or delete anything from it.
  121. Sefita was also adamant that the UTRI documents that were taken by the audit officers from the UTRI classroom were not stolen. He explained that it has always been the normal procedure for audit officers to request documents from schools that are being audited. They have not had any instances where any requests for documents were denied. And in this case, the audit officers were directed to go and bring the documents back to the office for further scrutiny and assessment.
  122. In re-examination, Sefita clarified the process for preparing for an audit once they receive requests for audits to be carried out. First, the MET has to prepare a financial statement all necessary records directly relevant to each institution and the grant application from the institution. MET then sends those documents together with a request to the Auditor General’s office for that particular institution to be audited. When they receive the request, the go over the documents to ensure that it is complete. They then make a plan as to how or when they begin and inform the institution they are coming over to carry out the audit.
  1. THE DEFENDANTS’ EVIDENCE
  1. The First Defendant called two witnesses. Mr. Lavulavu also chose to give evidence. As with the Crown witnesses, I summarize only the parts of the evidence of the Defence witnesses that I consider are relevant for the purposes of this voir dire.
    1. Mele Muimui Vaipulu
  2. Mele is currently a Senior Procurement Officer at the Ministry of Finance. Prior to working at the Ministry of Finance she had been a price and measure officer with the Ministry of Trade and Economic Development. In 2011 – 2016 she was employed at UTRI first as a teacher and Deputy Principal;
  3. Mele stated that was already an employer at UTRI when it was first audited in 2011 and then later in 2013 to 2016. She cannot clearly remember the first few audits but recalls the audit that was carried out in 2016;
  4. Mele also recalled being told that an audit would be carried out. Their normal duties were to prepare the files and documents required for the audit. These documents consisted of student application forms, student loan contracts, school program and attendance. If the audit officers required anything else, they would provide them.
  5. Mele recalled that during the audit, the Defendants’ were in Vava’u. Only herself, Lopeti Filo, Muna and Loleini were in the office.
  6. They had allocated one of the classrooms at UTRI for the auditors to use and had put the required documents there.
  7. Mele recalled the time the audit officers came to take the documents from UTRI. They had first arrived at around 9am and went straight to the room allocated for the audit. Between 11 – 12 noon they came to the office and Popua Mafi got out of the car and called out to them that they were taking the files with them. She was inside the office at the time with Lopeti Filo, Lisa and Tupou. Popua told her that they would return the files the next day.
  8. During cross-examination by Mr. Lavulavu, Mele confirmed that the documents had been taken from UTRI on the 9th June 2016. She said that they had never received and written request for the documents the auditors took with them;
  9. Mele also stated that ‘Akosita had been present during their first meeting with the audit officers but left Tongatapu after that first meeting;
    1. Muna Nasilai
  10. Muna is the secretary for LT Constructions. Before that, she worked at the Ministry of Infrastructure in 2019–2021. She was employed at UTRI in 2010 – 2016;
  11. When employed by UTRI, she was a teacher and responsible for administration matters. Muna first entered UTRI as a student in 2010. She completed a course in tourism and hospitality. She graduated in 2011 with a Certificate Level 4 in Tourism and Hospitality. She then began teaching basic English and Quality Customer Service and Management at UTRI in 2011-2016;
  12. The administration part of her duties included taking care of student records and quality assurance division. The records included student roll call, enrolment and all other duties involving students at the school;
  13. In relation to the 2016 audit, Muna was assigned to work with the auditors and ensure they were provided with all the information they required.
  14. She recalled that she was in the office on the day the officers had taken the documents from UTRI back to the Auditor General’s office. She was in the office with Mele Tovi, Lopeti Filo and Loleini Satini. ‘Akosita was in Vava’u during this time;
  15. The only thing she remembers is that Popua Mafi had called out to them that they were going to take the documents and return them the next day. After they left, she went to the room where the documents had been kept and saw that all the documents had been taken;
    1. Second Defendant, ‘Etuate Lavulavu
  16. Mr. Lavulavu applied to call two witnesses to give evidence on his behalf. They were former Minister of Finance, ‘Aisake Eke and independent auditor Christine ‘Uta’atu. On further inquiry with Mr. Lavulavu as to the relevance of their evidence, he said that they held various qualifications in accounting and auditing. Mrs. ‘Uta’atu was also the independent auditor who had been hired by the Ombudsman to carry out investigations in relation to the Auditor General’s report.
  17. I informed Mr. Lavulavu that I did not see the relevance of those two witnesses to the issue of admissibility of the report and advised him against it.
  18. Mr. Lavulavu then proceeded to give sworn evidence. He was one of the founders of ‘Unuaki ‘o Tonga Royal Institute;
  19. Mr. Lavulavu stated he had never once been contacted by anyone from the Auditor General’s Office to inform him that there were any problems or discrepancies in all the audits carried out on UTRI for TVET grants in 2010, 2011, 2012, 2013, 2014 and 2015.
  20. On 9th June 2016 Mele Tovi called to inform him that the auditors had taken all of the UTRI documents with them to their office. She told him that they had not received any letter or notice requesting the documents.
  21. On 10 June 2016, he emailed Maama Fotofili requesting a meeting to discuss his dissatisfaction with the audit offices stealing UTRI documents. Mr. Lavulavu stated the auditors took the documents and could have photocopied them, but they did not and have not returned the documents up to the present day.
  22. Mr. Lavulavu said he consistently tried to set up a meeting to discuss his concerns about the unlawful taking of the UTRI documents. On the date they met, the audit officers stated it was the exit meeting for the audit. However, that was not true and it was actually him who had requested the meeting. He was surprised to receive the Auditor General’s report of 5 October 2016 while he was waiting for them to return the UTRI documents. This report had been compiled from documents that had been stolen from UTRI;
  23. During cross-examination by Mrs. Fa’anunu, Mr. Lavulavu stated that one of his main concerns with the Report was in relation to the numbers of students referred to in the Report with no names indicated. Mr. Lavulavu said he found it difficult to understand who those figures represented and he required the disclosure of those names so that he could ask the staff and teachers at UTRI exactly what the allegations were about. He wanted their views on these allegations and that was the reason he had requested Maama Fotofili to have a meeting. Maama informed him that the names he was requesting were confidential and could not be released;
  24. In reply to cross-examination by Mr. Lutui, Mr. Lavulavu stated that prior to 2016, he did not have much to do with the daily administration of UTRI. He was occupied with politics and had been appointed Minister at one time.
  25. Mr. Lutui then put to Mr. Lavulavu that the reason the audit officers did not communicate with him in regards the audits of 2013 – 2015 was because he only became the managing director around June 2016. This was around the time ‘Akosita left for Vava’u to campaign for the upcoming elections in 2016.
  26. Mr. Lutui put to him that because he had only become the managing director around June 2016, he would not have been able to answer any queries relating to the audit of the years 2013-2015. Mr. Lavulavu disagreed and stated that he had been managing director off and on since 2003. He was adamant that the audit officers had a legal obligation to communicate directly with him and not with the staff of UTRI;
  27. It was also put to Mr. Lavulavu that as Principal of UTRI at the time, Mele Tovi was the correct person to communicate with the auditors because she was involved in the daily operation of the school and was in a better position to answer the queries of the auditors. Mr. Lavulavu disagreed and maintained that he was the correct person the auditors’ should have contacted.
  28. Mr. Lavulavu argued that the documents had been unlawfully taken from UTRI contrary to the law and to the internal policies of UTRI. In his opinion, the documents were stolen and the elements of theft were complete.
  29. Mr. Lutui also put to him that the process for auditing begins with a request from MET who sends the auditors the request together with documents that had been provided by UTRI to MET. If further documents were required, then the auditors would expect UTRI to provide them. Mr. Lavulavu did not agree and stated that if the documents submitted by UTRI to MET were incomplete, the correct channel would be for the auditors to go back to MET and request them to give them the complete documents;
  30. Mr. Lavulavu adamantly disputed the claim that no audit had been conducted for Semester 1 2013, Semester 2 of 2014 and Semester 1 of 2015. He recalled that audits had been carried out for those periods as they would not have received any money if those periods had not been audited. He said the reason they were able to receive the monies for those periods was because those terms had already been audited;
  1. CROWN’S CLOSING SUBMISSIONS
    1. Hearsay Evidence and Exceptions to the hearsay rule
  1. In his closing submissions, Mr. Lutui submitted that the approach to be taken by the Court in deciding whether the worksheet or the Report is admissible or inadmissible, must be based solely on the provisions of the Evidence Act or under recognized common law principles.
  2. Mr. Lutui stated the only part of the Report that the Crown agrees can be treated as hearsay are the paragraphs and figures of the Report that arise from interviews of students listed on the worksheet. He submitted that the paragraphs and figures that are the result of the assessment by the auditors of the documents cannot be treated as hearsay evidence.
  3. Accordingly, Mr. Lutui opined that only the following paragraphs of the auditor general’s report is hearsay evidence:
    1. Paragraph 10 (19 students);
    2. Paragraph 11 (34 students);
    1. Paragraph 12 (23 students);
    1. Paragraph 13 (105 students);
    2. Paragraph 18 (35 students);
  4. Mr. Lutui further submitted that the hearsay evidence in this case is admissible under the exception to the hearsay rule outlined in section 89(f) of the Evidence Act;
  5. Moreover, the interview worksheets and the Report are two different documents with the interview worksheet being the source document which contains the source information, being the interviews. The paragraphs of the audit report in question simply contain figures and information extrapolated from the interview worksheet. The worksheet can be relied upon independently of the audit report but the relevant paragraphs in the report cannot be relied upon in isolation from the worksheet.
  6. Considering the above, the facts contained in the worksheet and the relevant paragraphs of the auditor’s report are in issue. The Defendants deny the figures relied upon by the Crown to establish the number of students claimed by UTRI for the TVET grant. This is the basis of the obtaining by false pretense charges.
  7. The interview worksheets and the Report are an official record of the audit evidence compiled by the auditors during the audit of the TVET grant money (public funds) paid to UTRI. The auditor general had given evidence that the Report is in fact a public document.
  8. Mr. Lutui contended that the interview worksheets and the Report were made by the auditors and Auditor General, whom are all public servants for the purposes of the Evidence Act, and in discharge of their official duties as the Auditor General and employees of the Auditor General.
  9. If the hearsay evidence cannot be admitted under section 89(f) exception, then it can be admitted under the newly added section 89(o) of the Evidence Act. This section was adopted from section 114 of the Criminal Justice Act 2003 of the United Kingdom, which provides that the matters to be considered by the Court in contemplating whether it is in the interest of justice to admit hearsay evidence.
  10. Section 14 of the UK Criminal Justice Act 2003 lists out those matters as follows:
    1. How much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
    2. What other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);
    1. How important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;
    1. The circumstances in which the statement was made;
    2. How reliable the maker of the statement appears to be;
    3. How reliable the evidence of the making of the statement appears to be;
    4. Whether oral evidence of the matter stated can be given and, if not, why it cannot;
    5. The amount of difficulty involved in challenging the statement;
    6. The extent to which that difficulty would be likely to prejudice the party facing it.
  11. Mr. Lutui submitted that section 89(o) applies in this case because, firstly, the number of students alleged by the Prosecution that UTRI claimed as eligible students to receive the TVET grants and for which grants were received, are facts in issue. This goes to the heart of the Prosecution’s case and its probative value is therefore extremely high.
  12. Secondly, the Crown relies on the interview worksheet and hearsay paragraphs as it is applicable to the categorization assigned to each category of students by the auditors expressed in the audit report. The categories for which the hearsay paragraphs fall under could be easily categorised through evidence of the auditors be categorized under another category, where reliance on the hearsay evidence (the interviews) can be dispensed with by assessing the relevant applications and reassigning the category of students in the hearsay paragraphs to other paragraphs where the categorization of students is based on an assessment of the documents, such as incomplete applications;
  13. The hearsay paragraphs in the Report arise from interviews forming the Worksheet. Those interviews were necessary for the auditors to verify if students were eligible to receive the TVET grant as claimed by UTRI. The statements were recorded contemporaneously and relied on for the Report's purposes. The recording process of the interviews was for the sole purpose of collecting audit evidence for the purposes of the audit finding and audit report. It was not intended at the time that it would be used and relied upon for the purposes of prosecution;
  14. The interviews were conducted of students themselves, family members and town officers, which made up the statements recorded and relied upon by the auditors. There was no reason suggested or put, that the persons interviewed had ulterior motives or in fact lied about the statements given to the auditors;
  15. In respect of the category “does not exist” no oral evidence can be adduced to establish the numbers in that category other than the findings of the auditors, after their enquiries;
  16. In respect of the other categories in question, only some of the students can now be located to give oral evidence, given that length of time that has elapsed between the alleged offending and the time in question being the years 2013 to 2015. As a natural result of migration abroad and phone numbers listed no longer in operation, the auditors were forced to physically attempt to locate students;
  17. In addition, Mr. Lutui submitted there would be no difficulty on the part of the Defendants, to challenge the statements. They have demonstrated through the voir dire that they can challenge the reliability and accuracy of the statements in the trial proper. According to Mr. Lutui, there is therefore no prejudice to the Defendants if the Report is admitted.
  18. Lastly, Mr. Lutui submitted that if the hearsay paragraphs do not qualify under sections 89(f) and 89(o), then the evidence can still be admitted under the common law exception. He argues that under the common law exception, the Crown will not rely on hearsay paragraphs to prove the truth of the statements. He states that the report's entirety cannot be ruled inadmissible because only part of it is hearsay. The whole report, including the hearsay paragraphs, should be admitted into evidence because the Prosecution will not rely on the facts established by those statements.
    1. Unlawfully Obtained Evidence
  19. Mr. Lutui disputed the allegation by the Defendant’s that the UTRI documents had been unlawfully obtained. He argued that the documents were lawfully obtained because all three audit officers, namely Salome Lavemaau, Lutimila Tafea and Popua Mafi gave evidence and confirmed that Popua Mafi had asked for permission to take the documents;
  20. Defence witness Mele Tovi had stated in her evidence that she recalls the auditor’s seeking permission to take the documents.
  21. Defence witness Muna Nasilai also gave evidence and said she was present when permissions was sought by the auditors to take the documents;
  22. The only difference in the accounts is in relation to the evidence of both Mrs. Mele Tovi and Ms. Nasilai. This is in relation to Popua Mafi saying that the documents would be returned the following day. Mrs. Vaipulu stated that her statement is based only on her recollection of events now. Mrs. Nasilai evidence in cross-examination clearly demonstrated her as an unreliable witness, such as her claiming to be involved in the audit of the school, whilst she was still a student at UTRI;
  23. Accordingly, Mr. Lutui submitted that the differing accounts by Mrs. Vaipulu and Ms. Nasilai should not be accepted by the Court as reliable in respect of the material difference referred to. The court should therefore not accept the allegation by the Defendants that the auditors unlawfully took documents from UTRI in June 2016 because this allegation is not based on evidence;
  24. Mr. Lutui further submitted that if the court were to believe the Defendant’s version that the documents were taken unlawfully, then the Prosecution will rely on the principles in Bunnings v Cross[18] where the following factors are relevant in determining whether those principles apply:
    1. No deliberate disregard of the law should be involved;
    2. Whether the evidence could have just as easily been obtained;
    1. The cogency of the evidence and whether the illegality could be said to affect its’ cogency;
    1. The importance of the evidence in the context of the case;
    2. If vital evidence, was it of perishable or evanescent nature so that if there were any delay in securing it, it would have ceased to exist;
    3. The seriousness of the offending;
  25. Mr. Lutui submitted that the considerations in Bunning apply in this case as follows:
    1. There was no deliberate disregard of the law in this case. Permission had been sought and granted. The only differing account is the fact that the documents were not returned the following day;
    2. The documents were easily obtained through request to Mrs. Vaipulu who was the Principal and who in fact did give permission for the documents to be taken.
    1. The documents form the basis of the assessment conducted by the auditors to draw conclusion that UTRI had applied for the TVET grant for students who were clearly not eligible;
    1. If the documents are ruled inadmissible it would be fatal to the Prosecutions’ case;
    2. It was clear from the work of the auditor’s that once the special audit commenced and an in-depth assessment of the documents was required, that it was vital to preserve the documents, particularly if fraud had been discovered;
    3. The charges against the Defendants’ are serious given the amount of public funds alleged to have been obtained by the Defendants as a result of the false pretense and is one of the most serious of its’ kind in Tonga.
  26. Accordingly, Mr. Lutui submitted that the court must rule that the documents were lawfully obtained by the auditors.
    1. Breach of the Audit Act
  27. Lastly, Mr. Lutui made submissions in reply to the ground put forth by the Defendants that the report is inadmissible because it has breached various sections of the Public Audit Act as follows:
    1. The report did not comply with section 2 of the Audit Act which required compliance with accepted auditing standards;
    2. The report breached section 14 of the Act by not requiring documents by notice in writing;
    1. The report breached section 16 of the Act by not cautioning the persons interviewed; and
    1. The report breached section 24 of the Act which deals with confidentiality;
  28. In response to this part of the Defendants’ claim, Mr. Lutui submitted that this ground must fail as the Defendants have not demonstrated how the Report is non-compliant, and if so, to what degree. The Auditor General had given evidence that they had complied with the accepted standards or the ISSAI criteria and requirements;
  29. Moreover, there is no provision in the Evidence Act or an evidential rule under common law that the Defendants’ can rely on as the basis for a ruling that the interview worksheets and Report are inadmissible on those grounds;
  30. Mr. Lutui further submitted that in relation to section 14 of the Audit Act, the requirements under section 14 are not mandatory requirements under the Act but are discretionary. The requirements under section 14 are compelling powers of the Auditor General in relation to obtaining documents, but it does not apply when permission has been obtained for documents to be made available or documents being made available by the audited entity.
  31. In relation to section 16 of the Public Audit Act, the Defendants argue that the auditors should have cautioned the people that they interviewed. Mr. Lutui submitted that is not what section 16 of the Act provides. Rather, the Act section provides that a person interviewed by the auditors have the same privileges as a person giving evidence before a Court. There is no obligation on the auditors to legally caution persons being interviewed.
  32. Lastly, in relation to section 24 of the Public Audit Act, Mr. Lutui submitted that the evidence was quite clear. The Auditor General had explained that the people copied into the Report were people required under the auditing process, and in relation to proper governance, who are entitled to be copied into the report given the findings. Confidentiality in respect of section 24, only applies to the audit evidence. Further, the reporting requirements under section 23 of the Act entitles the Auditor General to copy or forward the report to relevant stakeholders.
  1. CLOSING SUBMISSIONS: FIRST DEFENDANT MRS. ‘AKOSITA LAVULAVU
  1. As stated above, I had informed counsels and Mr. Lavulavu numerous times during the voir dire that I will only consider the grounds of hearsay and unlawfully obtained documents. Counsels for Ms. Lavulavu and Mr. Lavulavu himself have blatantly disregarded those directions and continued to make submissions on all the grounds of objections to the Report they had submitted when we reviewed the scope of the voir dire;
  2. I find this rather unprofessional conduct and will not address any other grounds in their submissions other than arguments on hearsay and unlawfully obtained evidence;
    1. Unlawfully obtained evidence
  3. Under this ground of objection to the Report, Mrs. Fa’anunu submitted that the category of documents the Auditor General was entitled to request under section 14 of the Public Audit Act does not include documents such as student application forms, checklists or student loan agreements which were removed from UTRI. Therefore, the removal of those documents is not covered by section 14 (b) of the Act;
  4. Mrs. Fa’anunu also referred to factual circumstances surrounding the conduct of the audit to demonstrate that the UTRI documents had been unlawfully taken. She stated that for three weeks during the audit at the UTRI compounds, the audit officers had in their possession not just the financial documents, but also the student application forms, checklists and student loan agreements. For three weeks, the audit officers only had one question for the First Defendant, and that was to get access to the bank accounts of UTRI.
  5. According to Ms. Fa’anunu, this begs the question as to why the officers had not questioned Mrs. Lavulavu about the application forms and loan agreements while they were still at UTRI. Mrs. Fa’anunu submitted that the audit officers had another motive given their restricted communication with Mrs. Lavulavu during the audit process because they were not transparent;
  6. Additionally, the evidence of the Salome Lavemaau, Lutimila Tafea and Popua Mafi were inconsistent in relation to the taking of the documents. Firstly, the accounts of Salome and Lutimila in relation to the dates and time the audit had started are different from that of Popua Mafi. Salome and Lutimila stated that the audit had ended around May 2016 whereas Popua Mafi insisted that it had ended on 8 June and that they had taken the documents on 9 June. Mrs. Fa’anunu submitted that Popua Mafi was not a credible witness as she had consistently changed her evidence throughout the time she was in the witness box;
  7. Furthermore, the evidence of the Crown witnesses is inconsistent with the evidence of Defence witness Mrs. Mele (Tovi) Vaipulu. All three Crown witnesses claim that the First Defendant was present when Popua Mafi called out to them that they were taking the UTRI documents. On the other hand, Mele Tovi gave evidence and stated that ‘Akosita was not in Tongatapu during that time because she was in Vava’u. This was confirmed by the evidence of the Second Defendant. They were both in Vava’u campaigning for Mrs. Lavulavu to run for elections from Vava’u.
  8. Mrs. Fa’anunu went on to submit that the auditors did not have power to remove the documents from UTRI. She referred to wording of section 14(e) of the Public Audit Act where the auditor general is required to give notice to any person in control or possession of any document subject to audit. No such written notice had been given to the staff of UTRI who had no knowledge of the nature of the documents removed. To this day those documents have yet to be returned after being told that the officers would return them the following day. The requirement for a written notice according to Mrs. Fa’anunu is a mandatory requirement which the audit officers failed to comply with;
  9. In response to the Crown relying on the principles outlined in Bunning v Cross on the issue of unlawfully obtained evidence, Mrs. Fa’anunu argued that the audit officers had in fact deliberately disregarded the law in failing to give written notice before removing the documents. Moreover, the documents could have easily been obtained lawfully since the audit officers had the documents in their possession when carrying out the audit.
  10. In addition, Mrs. Fa’anunu submitted that the documents that were taken do not prove any of the elements of the charges against the Defendants’ and were only documents that formed part of the UTRI system of collecting and maintaining their own data collection. These documents had never been questioned by past audits.
  11. Overall, Mrs. Fa’anunu submitted that the requirements set out by the principle in Bunning are not met in this case and the appropriate conclusion should be that the UTRI documents were unlawfully obtained. Consequently, the Report should be excluded as evidence in the trial proper.
    1. Hearsay Evidence:
  12. Ms. Fanga Afu made submissions on behalf of the First Defendant in regards the issue of hearsay evidence.
  13. Ms. Afu submitted that the entire Report is hearsay and is not only confined to the paragraphs suggested by the Crown. This includes the Worksheet and the UTRI documents (student application forms, loan agreements and others);
  14. In relation to section 89 (f), Ms. Afu submitted that the Crown must satisfy three major elements as follows:
    1. That the report refers to a ‘fact in issue’ or a fact relevant to a ‘fact in issue’ –
      1. A fact in issue concerns matters like dates, legal status of persons or places and would not include highly controversial facts;
      2. R v Pouono[19] - not discrete and relevant to a fact in issue – drugs in the diaper and then distributed but Accused was charged with possession of drugs obtained during a search and seized after the fact of the statement;
      3. There is no connection between the Report and the Defendants’ that is relevant to a fact in issue in this case;
      4. Nothing in the report can prove the elements of the charges against the Defendants’ in this case;
    2. The report is contained in any official book, register or record:
      1. Official books, register or record means “public documents concerned with public matters and made for the purpose and information of the government and/or public who may require the information”.
      2. In R v Tomasi[20], official books, register or record means public documents concerned with public matters and made for the purpose and information of the government and/or public who may require the information;
      3. In Cauchi v Air Fiji and Another[21], it was ruled that the document should not only have been made by public officers and made available for public inspection, but it should have been brought into existence for that very purpose. Ms. Afu submitted that in this case the Report is missing one important element of the public document argument. That is, the Report was not made for the sole purpose of public inspection. UTRI could not inspect the audit, the Defendants’ themselves were not able to inspect the Report and so as the general public. According to Ms. Afu, the purpose of the Report was to confirm the UTRI’s use of TVET grants and to inform MET;
      4. Consequently, the Report cannot be considered a public document as it was not made for the sole purpose of public inspection;
    1. The report was made by a public servant in discharge of his official duty or by any other person in performance of a duty enjoined by the law of the country in which such book, register or record is kept:
  1. The ‘law’ refers to the laws of Tonga including the Public Audit Act of Tonga;
  1. In relation to section 89 (o) “where the Court is satisfied that it is in the interest of justice”. With reference to section 114 of the Criminal Justice Act 2003 of the United Kingdom, the matters to be taken into account by the Court in considering if it is in the best interest of justice to admit hearsay evidence:
    1. What other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a)?

i. Ms. Afu submitted there is other evidence available for the Crown. In fact, the primary evidence is available for the Crown’s case;

  1. How important the evidence is in the context of the case as a whole?
  1. The Report is not relevant to fact in issue of this case and is therefore not important;
    1. How reliable the maker of the statement appears to be:
  2. Ms. Afu submitted this is the main concern of the Defendants’ Report. Several issues have been raised in relation to how the auditors went about conducting the interviews and collecting information which puts into question its’ reliability;
    1. Whether oral evidence of the matter stated can be given and, if not, why it cannot:
  3. Ms. Afu submitted the oral evidence can be given in this case. The Crown can choose to call all the students to give evidence as to whether they were studying at UTRI. The difficulties referred to by Crown in calling witnesses can be resolved with technology and social media. The use of AVL is now being accepted in courts and people nowadays can easily be located and identified.

227. Lastly Ms. Afu submitted that it is not the Defendant’s responsibility during the trial proper to prove their innocence, it is for the Prosecution to prove their case beyond a reasonable doubt;


  1. Common Law Exception

228. In reply to the Crown’s submission that the Report can be tendered because the truth of the statements in the hearsay paragraphs will not be relied upon, Ms. Fa’anunu submitted that if the Crown will not rely on the truth of the statements but only on the fact that the auditor’s conducted an audit at UTRI, then what is the purpose of admitting the Report when the Auditor General can speak to confirm this in evidence during the trial proper;

  1. The submission by Crown in relation to this argument only goes to affirm the argument that the Report is not relevant to the fact in issue of this case;
  2. It also supports the Defendants’ submission that the report should not be admissible under section 89(o) of the Evidence Act because other evidence can be given to the fact that an audit was conducted, and the auditor’s report is not crucial in the context of this case;
  1. CLOSING SUBMISSIONS: SECOND DEFENDANT MR. ‘ETUATE LAVULAVU
  1. As with the closing submission for the First Defendant, Mr. Lavulavu failed to take into account my directions on the issues that will be addressed. Consequently, he has filed very lengthy closing submissions covering most of the grounds of objection he had originally filed prior to the voir dire hearing.
  2. Mr. Lavulavu also addressed issues that are unrelated and have no relevance to the admissibility of the Report. Given the number of irrelevant submissions filed, I will adopt the same approach I have taken with the submission by the First Defendant and will only summarize Mr. Lavulavu’s submissions on the grounds of hearsay and unlawfully obtained evidence.
    1. Hearsay Evidence
  3. Mr. Lavulavu’s submissions on the issue of hearsay is covered in detail in section 5 of his closing submissions. However, he has also incorporated several other grounds of objections in the same section. I have summarized only the parts of his submissions that are relevant to the issues in this voir dire;
  4. Firstly, Mr. Lavulavu submitted that the Report is hearsay and the whole of the Report is inadmissible because it contains hearsay evidence. The Auditor General admitted in his evidence that the Report was compiled from work done by his employees.
  5. Additionally, Mr. Lavulavu argued that the Crown is wrong in submitting that the facts contained in the worksheet and relevant paragraphs in the audit report are in issue. Paragraph 89(f) concerns statements that refers to a fact in issue or a fact relevant to a fact in issue. The contents of the worksheet and the audit report are “highly controversial facts” which the Crown seeks to rely on in the present case and therefore does not fall within the ‘fact in issue’ referred to in section 89(f);
  6. Next, Mr. Lavulavu contended that the Worksheet and the Report do not fall within the phrase “official book, register or record” as claimed by the Crown.
  7. The Auditor General did not give evidence that the Report is a public document as claimed by the Crown. Moreover, the Crown does not refer to “public document” as provided by section 91 of the Evidence Act, to support its allegation that the Report is in fact a public document. The Crown only refers to the Auditor General giving evidence that the Report is a public document but makes no reference to the worksheet being a public document, or the worksheet and the audit report being considered together as public document. This is important to note because the Prosecution state that they are two different documents with the worksheet being the source document;
  8. The decision of Ioannou v Demetriou[22], quoted by Ford J in Cauchi v Air Fiji is persuasive authority for the definition of ‘public document’. In this case, the audit report was not available for public inspection, and it was not brought into existence for that very purpose. Additionally, section 27 of the Public Audit Act provides that the Auditor General shall not, except as may be required by law, disclose to any person any information that shall come to their attention in the performance of their duties under the act and all such information shall remain confidential;
  9. In relation to the Crown’s reliance on section 89(o), Mr. Lavulavu submitted that this section cannot be applied retrospectively. He relied on certain paragraphs in Tuifua v Public Services Tribunal, namely paragraphs 43, 46, 47 and 53;
  10. Moreover, the application of the amendment to this case would deprive the defendant of his entitlement to the protection of limiting the court's consideration to the exception specified in 89(f). The court is now given the power not to limit in consideration to the exceptions in sections 89 (a) – (n), but to go on and consider the interest of justice which is an overly broad discretion;
  11. If the court finds that the section does apply retrospectively, then the following issues arise:
    1. Crown relies on section 114 of the UK Criminal Justice Act 2003, where the amendment was taken from, as guidelines of the factors that this court must consider when contemplating whether hearsay evidence should be admitted in the public interest. However, these factors were not considered by Parliament and they did not see it fit to include those factors when they passed the amendment in section 89(o);
  12. If the court finds that section 89(f) of the Evidence Act does not apply, then it would be unfair for the Court to then apply section 89(o) simply because it is in the interest of justice to admit hearsay evidence. Parliament did not provide any guideline for the court to follow when exercising the new power under section 89(o);
  13. In reply to the Crown’s submission that paragraph 13(a) of section 114 UK Criminal Justice Act 2003 applies in this case, Mr. Lavulavu submitted that the Crown is submitting that the probative value of the hearsay evidence outweighs its prejudicial effect. It is submitted that the Crown is relying on the weight and reliability, which is not an issue in the voir dire, as a basis for admissibility of the hearsay evidence under section 89(o);
  14. In reply to the Crown’s submissions in relation to paragraph 13(b), if the auditors could categorize the students using another method, then the Crown can do that at the trial proper instead of having to admit hearsay evidence;
  15. In reply to Crown’s submission on paragraph 13(c), it should be noted that in paragraph 37(iv) of the Report, it is recommended to refer the case to the Ministry of Police for possible further investigation. And in this case, the Crown is seeking to admit the report as evidence to support the case against the Defendants’;
  16. In reply to Prosecution’s submissions in relation to paragraph 13(d) of their closing submissions, the Defendant refers to the court to defence exhibit D19. This is the letter by Mr. Lavulavu to Maama Fotofili on 4 August 2016. Mr Lavulavu refers the same exhibit in response to paragraph 13(e);
  17. In reply to paragraph 13 (f), the Defendant will also face the same difficulties in trying to challenge the allegation in the documents if the students could not be called at the trial. Most importantly, the hearsay evidence would then be used against him notwithstanding the prejudicial effect outweighing the probative value;
  18. Mr. Lavulavu strongly disputed the allegation in paragraph 13(g) of the Prosecutions submissions in that he would not have any difficulty in challenging the hearsay evidence if the documents are admitted at the trial. The Defendant does not understand the reason for the Crown having difficulty in calling witnesses, and then saying that the defendant would have no difficulty in challenging the statement of uncalled witnesses;
  19. For the reasons outline above, Mr. Lavulavu submitted that it is not in the interest of justice for the Court to admit hearsay evidence pursuant to its power in section 89(o);
    1. Unlawfully obtained evidence
  20. The submission by Mr. Lavulavu on this issue of unlawfully obtained evidence mirrors the submissions made on behalf of the First Defendant. I will therefore not repeat those submissions again.
  1. CONSIDERATIONS
  1. This voir dire has obviously taken an exceptionally long time to conclude. A substantial amount of documents have been filed by both parties containing information that were both relevant and irrelevant;
  2. Again, I reiterate that I had given both parties directions on the issues that I will consider for the purposes of this voir dire. Those issues were hearsay and unlawfully obtained evidence. I repeatedly informed counsels for ‘Akosita and Mr. Lavulavu that I will not consider any of the other grounds of objections that were included in their submissions. They have clearly refused to comply with those directions.
    1. Unlawfully Obtained Evidence
  3. Unfairly obtained evidence refers to prosecution evidence that has been obtained in a questionable manner.[23] Where evidence has been obtained illegally, the general rule is that the court may exercise its power, in appropriate circumstances, to stay proceedings.[24] However, where proceedings have not been stayed then, subject to the procedures for obtaining evidence and privileged documents outlined in the Evidence Act, evidence obtained unlawfully, improperly or unfairly is admissible as a matter of law.
  4. As outlined in Mr. Lutui’s original submissions in reply to the Defendant’s claim that the documents from UTRI had been unlawfully obtained, the leading case on this issue is that of R v Sang (1980), which ruled that a judge can exclude trial evidence if its prejudicial value outweighs its probative value.
  5. It was also held in Sang that a Judge has no discretion to refuse to admit relevant admissible evidence on the grounds that it was obtained by improper or unfair means, as the court is not concerned with how evidence is obtained, but only with how the evidence is used by the prosecution at trial.
  6. In Kuruma, Son of Kaniu v The Queen [1955] AC 197, Lord Goddard CJ, on behalf of the Board, said (at p. 203):

... the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. While this proposition may not have been stated in so many words in any English case there are decisions which support it, and in their lordships’ opinion it is plainly right in principle...

  1. Referring to this pronouncement in Jeffrey v Black [1978] QB 490, Lord Widgery CJ said (at p. 497): ‘I have not the least doubt that we must firmly accept the proposition that an irregularity in obtaining evidence does not render the evidence inadmissible’. Evidence is admissible as a matter of law, therefore, if it has been obtained by any of the following means:
    1. Theft[25]
    2. Unlawful search of persons[26]
    1. Unlawful search of premises[27]
    1. The use of agents provocateurs[28]
    2. Eavesdropping[29]
    3. Invasion of privacy[30] in which evidence of an incriminating conversation was obtained by means of a secret electronic surveillance device).
  2. Both Defendants submit that the documents taken by the audit officers were stolen and taken without permission. I do not accept that the UTRI documents referred to by the Defendant’s had been stolen. I accept the Crowns submissions on the evidence and I reject both defendant’s submissions on this issue.
  3. I have no doubt that the documents were taken with the approval of both the First Defendant and Mele Tovi. The Defendants’ are only now taking issue with the taking of the documents because they were not returned and subsequently used to conduct an investigation whereby they were arrested and charged.
  4. Any inconsistencies in the evidence of the Crown witnesses are not enough to suggest that they were lying to the court. The taking of documents from schools that are under audit is a normal procedure of the audit officers and accepted by the audited entities. There was no strict requirement for the normal signatures on delivery books as alluded to so many times by Mr. Lavulavu in his cross-examination;
  5. Even if the evidence was that the documents had been stolen, I would have had no hesitation in using my discretion to admit unlawfully obtained evidence as the documents that were taken are directly relevant to the issue in this case. I accept Mr. Lutui’s submission that if the documents were unlawfully obtained, the principles in Bunning would apply to this case for the following reasons:
    1. I am satisfied on the evidence that there was no deliberate disregard of the law. Contrary to Mr. Lavulavu’s fervent claims that the auditors were unreliable and had a motive to destroy him, I found all the Crown witnesses reliable and truthful. Although there were inconsistencies in relation to dates and events, that is only understandable given they have to recollect events that occurred eight years ago.
    2. In addition, the evidence could have easily been obtained through a written request to UTRI. However, the officers did not do so because it was the practice with all schools they audit to take documents back to their office to conduct further work.
  6. For the above reasons, I reject this ground of objection by both Defendants and rule that the Auditor General’s Report dated 5 October 2016 was not unlawfully obtained.
    1. Hearsay Evidence

Section 89(f) of the Evidence Act

  1. I now turn to the issue of hearsay evidence and the exception to hearsay under section 89(f) of the Evidence Act. It seems to be common ground between the parties that the Auditor General’s Report of 5 October 2016 contains hearsay and double hearsay.
  2. The elements of section 89(f) are as follows:
    1. The statement (in this case the report) refers to a fact in issue or a fact relevant to a fact in issue;
    2. It is contained in any official book, register or record;
    1. It was made by a public servant in discharge of his official duty.
  3. There can be no dispute that the contents of the Auditor General’s report refers to a fact in issue in the trial proper. Both Defendants are charged with obtaining by false pretense in that they provided the Ministry of Education and Training with inflated numbers of students and as a consequence received substantially more money than they were entitled to.
  4. The Report contains information that was derived from the interview worksheets of bogus number of students reported by the audit team following interviews with various people including purported students, relatives and town officers.[31] The Defendants dispute that information, making the Report a fact in issue;
  5. As for the second element, the Crown must prove that the statement was contained in an ‘official book, register or record’. In his synopsis of the Crowns closing submissions, Mr. Lutui had submitted that the Report is an official record of the audit evidence. The Auditor General himself had given evidence and stated that the report is in fact a public document.
  6. In his oral closing submissions, Mr. Lutui made further submissions on this issue and stated that the interpretation of public document in section 91 of the Evidence Act does not apply to the whole of the Act and is confined only to Part V of the Act. In any event, the Crown submitted that section 89(f) does not refer to ‘public documents’ and is therefore not relevant in this voir dire.
    1. I do not accept the submissions put forward by the Prosecution on this second limb of section 89 (f). While it is true that at common law, a public document made by a public officer is admissible hearsay[32], a public document must be one “made for the purpose of the public making use of it. Its object must be that all persons concerned in it, may have access to it.”[33]
    2. In R v Tomasi, the then Lord Chief Justice Paulsen considered an “official book, register or record” to mean public documents concerned with public matters and made for the purposes and information of government and/or the public who may require the information.[34]
    3. Also in Tomasi, LCJ Paulsen referred to Pettit. In that case, Lord Goddard CJ said at p407:

“to be a public document it must be one made for the purpose of the public making use of it. Its object must be that all persons concerned in it may have access to it, and in this instance the categories of persons entitled to inspect them are sufficiently extensive to give the maps the character of public documents”


  1. Also in Tokavar v Vunadadir-Toma-Nanga-Nanga Local Government Council [1960] PGSC 18, the court made the following statement:

“There are in law what are known as public documents which are admissible as prima facie evidence of the contents thereof. The admissibility of public documents is as a rule governed by statute but if they are in truth public character is down. The admission of public documents is an exception to the hearsay rule on the general grounds that they were made in the course of official duty respecting facts which were made in the course of judicial duty, respecting facts which were of public interest recorded for the benefit of public and available for consultation by members of the public. I think the document must be made for the purposes of the public”


  1. In this case, it goes without saying that the actual Worksheet and the underlying records of students conversations and conversations with town officers and families, were never meant to be public records.
  2. The final element for section 89(f) is that the statement was “made by a public servant in discharge of his official duty...” The issue of whether or not the audit team or the Auditor General were public servants at the time of the compilation of the worksheet and the Report is a side issue. This is because at the time the report was created they were public servants and it was only the recent amendments that excluded them.
  3. However, the interesting limb of this last element is that the statement “was made by a public servant in discharge of his official duty...”. The statement of fact has to be “made by a public servant in discharge of his official duty.” The question that arises here is, what, in that context, does ‘made’ mean?
  4. In his Report, the Auditor General simply recorded information given to him by his audit team members who, in turn, simply recorded information of statements about whether a particular person was a legitimate student or not. In other words, statements of fact made by those students or other persons interviewed by those officers. If this is correct, then the Report does not contain relevant statements of a fact in issue which were made by a public servant in discharge of his official duty. No public servant made the statements, it was the interviewees that made the statements. The public servants only recorded them. This can be contrasted with R v ‘Alatini [2021] TOSC 65 at [156] where Cooper J held that the entries in a police diary recording what one police officer told another did fall within the exception in 89(f). It was clear in that case that the relevant statements of fact were made by public servants.
    1. In light of the above, I am not satisfied that the Crown has proved all the elements required to prove that the exception to the hearsay rule in section 89(f) applies in this case;

Section 89(o) of the Evidence Act

  1. Mr. Lutui submitted that if the report cannot be admitted under section 89 (f) then it should be admitted under the new exception in 89 (o).[35] This new amendment gives the judge a wide discretion to admit hearsay evidence ‘where the Court is satisfied that it is in the interest of justice’ to do so.
  2. Unfortunately for the Crown, I find it difficult to accept Mr. Lutui’s argument on this issue. In a nutshell, the Crown’s proposition is that it is in the interests of justice for the Report and the Worksheet to go before the court and for the court to act on it without any possibility of the Defendants being able to test the evidence at its roots. This cannot be in the interest of justice. It might be in the interests of the Crown, but it cannot be in the interest of justice which has to balance both interests of the State and the interests of its subjects;
  3. The exception in section 89(o) was adopted from section 114 of the Criminal Justice Act 2003 of the United Kingdom, which provides that the matters to be taken into account by the Court in considering if it is in the interest of justice to admit hearsay evidence are as follows:
    1. How much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
    2. What other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);
    1. How important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;
    1. The circumstances in which the statement was made;
    2. How reliable the maker of the statement appears to be;
    3. How reliable the evidence of the making of the statement appears to be;
    4. Whether oral evidence of the matter stated can be given and, if not, why it cannot;
    5. The amount of difficulty involved in challenging the statement;
    6. The extent to which that difficulty would be likely to prejudice the party facing it.
  4. In my view, the exceptions on the interests of justice cuts both ways. The interest of justice here seems to be informed by clause 11 of the Constitution.[36] The Constitution as the Supreme Law of this country, steps in over the top and declares that Defendants’ are entitled to have the Crown’s witnesses “be brought face to face with him (except according to law) and he shall hear their evidence and shall be allowed to question them.”
  5. Throughout the voir dire, Mr. Lavulavu has consistently brought up this issue of natural justice and breach of his constitutional right to have the witnesses be brought fact to face with him. Even when I informed him that I would only consider hearsay and unlawfully obtained evidence. However, his arguments are relevant now to this proposition that the Report be admitted in the interests of justice.
  6. A fundamental question that arises here is, how is the Crown going to give effect to this requirement for the conduct of cases by indictment unless he can produce those witnesses? It has been unfortunate for the Crown that with fluctuation of time many witnesses have become unavailable. But the Crown’s approach in trying to get the report in as evidence of the truth of its content will defeat that constitutional requirement and is inherently unfair. It is a matter of the most basic justice and procedural fairness. The Defendant’s will not have an opportunity to test the evidence and cannot dispute what is in the worksheet and that is inherently wrong.
  7. Mr. Lutui ticks the other boxes of probative value, but that assumes the truth of what the original statements of fact were from students, relatives and town officers. The Crown cannot make those assumptions and the Defendants have a right to test those statements of fact. This is exactly why the hearsay rule exists, otherwise there will be incredible unfairness with the liberty of subjects at stake.
    1. Common Law Exception to the Hearsay rule
  8. Mr. Lutui submitted that the Auditor General’s report can be admitted into evidence under the common law exception to the hearsay rule where the Crown does not seek to rely on the hearsay statements as ‘testimonials’ so as to establish the facts narrated by the statements;
  9. In an ex tempore ruling given by LCJ Whitten on 14 July 2023, His Honor mentioned in paragraph 9 that Mr. Lutui for the Crown ‘tentatively’ embraced a proposal that the Crown not rely upon the Auditor General’s report as evidence of the truth of its contents but only as a historical document explaining the events that led to the police investigation;
  10. It would seem that the Crown decided against that approach as that course may have required the Crown to amend the indictment to only specify those students who can be called as witnesses to give evidence that they were not real students;
  11. Even if the report were allowed in as a historical document but not as evidence of the truth of its content, I have difficulty in understanding where this would get the Crown since it’s not going to stand as evidence of the number of students or alleged false students listed in the audit sheets;
  12. I am not satisfied that the Auditor General’s Report should be admitted as evidence under the common law exception to the hearsay rule;
    1. Parts of the Auditor General’s Report that are a result of assessments made by audit officers
  13. I also do not agree with Mr. Lutui’s argument that the parts of the Auditor General’s report that are a result of assessments made by the audit officers is not hearsay. Theoretically, that might be correct. However, the quality of that evidence is going to be undermined by the fact that those assessments are based on hearsay. If the root of the evidence is hearsay, you simply cannot go around it because it infects everything that follows it or flows from it.
  14. In this case, the audit officers’ assessments are that x number of students are unreliable and there are anomalies in the TVET grant applications. And after investigating, that is interviewing students or their families and town officers, they recommend that this amount of money should not have been paid. When you trace back all those calculations, it comes back to the students, the names on the worksheets where an auditor says I spoke to so and so and he or she is not a real student. All of that is rooted back in that first information as statement of fact.
  15. In Tomasi, the wife gave a statement to police on what her husband did. In this case, we have audit officers going around in the community writing down on a piece of paper what someone else told them. They are not stating a fact but recording a fact stated by another person out of court and at this stage, not to be called to give evidence in court in the substantive trial. Unfortunately for the Crown, it is impossible to get away from it and the evidence is just hearsay;
  16. Moreover, when the audit team handed the information to the Auditor General to compile his report, it’s double hearsay. In a nutshell, the Auditor General is saying ‘my team member told me that someone told him that he did not attend school’ or ‘did not pay school fees’ and so on. The assessments themselves are informed by hearsay evidence.
  1. FINAL RESULT
  1. As a result of the above considerations, I hereby rule that the Auditor General’s Report dated 5 October 2016, is inadmissible as evidence in the trial proper.
  2. I further rule that the Report cannot be relied upon by the Crown as evidence of the truth of its’ contents.

NUKU’ALOFA: 16 August 2024


‘E. M. Langi
J U D G E

[1] Lavulavu v R [2022] TOCA 22.
[2] The Defendants’ Opposition to introduction of the Auditor General’s Report and Admissibility of the Report, filed on 1 May 2023.
[3]Above n 2.
[4] Crown’s submissions in response to application by ‘Etuate Lavulavu on the admissibility of an Audit report conducted by the Auditor General, filed on 3 May 2023.
[5]
[6] First Defendant’s objection to the order of cross examination proposed by Her Honor, Justice Langi on 18th December 2023, filed on 20 December 2023.
[7] First Defendant’s Grounds of Objections to the Audit Report, fieldwork worksheet & all UTRI documents, filed 18 December 2023.
[8] Directions on Scope of Voir Dire and Order of Cross-Examination dated 31 January 2024.
[9] Exhibit 1, Cabinet Decision 1182 dated 12 December 2016.
[10] Exhibit 3, MET TVET Grant Application for UTRI 2015 – Attached is Enrolment List for Semester 1, 2015.
[11] Above n 9.
[12] Exhibit 9, Summary of Cabinet Decisions.
[13] Exhibit 2, Cabinet Decision 367.
[14] Exhibit 17, Auditor General’s Report dated 5 October 2016.
[15] Exhibit 16, Tonga Office of the Auditor General Work Sheet.
[16] Above n 9.
[17] The Public Audit Act 2007.
[18] Bunnings v Cross [1978] HCA; [1978] HCA 22; (1978) 141 CLR 54 as cited in R v Kitekei’aho [2017] TOSC 19 (27 July 2017).
[19] R v Pouono [2020] TOSC 29; CR 27 OF 2019 (2 June 2020), paragraphs 51-52
[20]R v Tomasi [2019] TOSC 38.
[21] Cauchi v Air Fiji and Another [2005] TOSC 44; [2005] 1LRC70 (1 February 2005)
[22] Ioannou v Demetriou [1952] 1 ALL ER 179.
[23] Munday R. 2015. Evidence 8th edn. Oxford: Oxford University Press.
[24] Warren v A-G for Jersey [2011] UKPC 10.
[25] Leatham (1861) 8 Cox CC 498 per Crompton J at p. 501.
[26] Jones v Owen (1870) 34 JP 759; Kuruma, Son of Kaniu v The Queen [1955] AC 197.
[27] Jeffrey v Black [1978] QB 490
[28] Sang [1980] AC 402
[29] Stewart [1970] 1 All ER 689; Keeton (1970) 54 Cr App R 267; Ali (Maqsud) [1966] 1 QB 688; Senat (1968) 52 CR App R 282).
[30] Khan (Sultan) [1997] AC 558
[31] Above n 15.
[32] Pettit v Lilley [1946] 1 KB 401, 115 LJKB 385 (UK).
[33] Ibid at p. 407.
[34] Above n 20.
[35] Evidence (Amendment) (No.1) Act 2024, came into force on 26 April 2024.
[36] Clause 11 of the Constitution of Tonga – ‘procedure on indictment.’

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