Chief Justice Michael Whitten has denied the bail application by jailed Cabinet Minister Akosita Lavulavu and her husband Etuate Lavulavu.
In his 18 pages ruling Mr Whitten said he was not satisfied that the Lavulavus “are obvious or even reasonable”.
The Chief Justice said: “I am not satisfied that the applicants have demonstrated
reasonable prospects of success on this ground of appeal”.
He concluded that the court does not consider it fit to admit them to bail pending their appeal.
“Accordingly, the applications are refused”.
Condemned by the Supreme Court as dishonest and deceitful, the Lavulavus have been sentenced to five and six years respectively for their part in defrauding the government school grant scheme.
They were found guilty of fraudulently obtaining a total of $558,600 by false pretences, from the Ministry of Education and Training by lying in applications for money from the Technical Vocational Educational Training Grant about the number of students enrolled at their private college, the ‘Unuaki ‘o Tonga Royal Institute.
Judge Cooper, presiding, described their crime as “the worst sort of dishonesty.”
“The conduct of these defendants would be disgraceful in anyone, but for a member of cabinet, and a man who used his political connections and position to facilitate these frauds, goes beyond just criminally reprehensible,” he said.
The identical Notices of Appeal run to some 20 pages consisting of an apparent 14 grounds, many with numerous ‘particulars’ which, in combination, raise various questions of law, fact and mixed law and fact.
The couple through their lawyer William Edwards Jnr made 14 claims including that the trial judge erred in applying the law of agency and finding that Mr Lavulavu was liable for the representations made by Mrs Lavulavu on all three counts;
They also claimed they were both liable for the acts of a Unuaki ‘o Tonga Royal Institute employee who prepared and signed the TVET application for that period.
In their appeal they claimed that Mr Lavulavu knew of the falsity of the applications by reason only that, his wife, Mrs Lavulavu knew of the falsity.
It said the trial judge misstated certain of the evidence, in a manner prejudicial to the appellants and thereby demonstrated bias towards them.
“The conduct of the trial was therefore unfair and the verdicts are therefore unsafe and unreliable”.
Law of agency
Mr Whitten said Mr Edwards’ submission that the trial judge erred in applying the law of agency lies at the heart of grounds 1, 2, 6 and 7.
Mr Edwards did not make any submission in relation to the authorities cited by the trial judge which illustrated the application of agency principles.
Mr Edwards did not cite any authority in support of his submission that the law of agency is not applicable in fixing criminal liability in Tonga.
“Despite its title, the operative provisions of the Civil Law Act do not limit or exclude the importation of the English common law in criminal proceedings”.
‘Ikai tali ‘e he ‘Eiki Fakamaau Lahi ‘a e tangi ‘a e ongo Lavulavu’ ke peila kinaua ki tu’a ‘o tali ‘ena tangi. Kuopau ai ke na ngāue pōpula pe mo toki fakahoko ai ‘ena tangi’ kapau te na kei fie tangi ai pe. Ko e taha e makatu’unga ‘oku ‘ikai tali ai he ‘oku ‘ikai tui ‘a e Eiki Fakamaau Lahi ‘e ‘i ai ha ola e tangi ‘a e ongo Lavulavu. ‘I he kupu 4B ‘o e lao ‘a Tonga ki he Peila’ ‘oku fakamahino ai ‘e lava ke peila pe tuku ange ha taha ki tu’a kuo tautea ngāue pōpula ke tatali ai ki ha’ane tangi ‘i hono tautea’ kapau ‘e fiemālie ‘a e fakamaau’anga’ ‘e iku tali ‘a e tangi ‘oku fakahoko’. Na’e fakahā ‘e he loea ‘a e ongo Lavulavu’ ki he ‘Eiki Fakamaau Lahi’ ko e makatu’unga tefito ‘eni ‘a e kole peila ‘a e ongo Lavulavu he ‘oku’ na tui ‘e tali ‘ena tangi ‘e fakahū atu’. Ka ‘i he vakai ‘a e ‘Eiki Fakamaau Lahi Mr Whitten ‘e ‘ikai ha ola ia ‘o e tangi ko ‘eni’. Na’e makatu’unga ‘eni he’ene vakai’i ‘a e ngaahi poini ‘e 14 na’e fakahū atu ‘e he loea’ ‘o pehē ko e ‘uhinga ia ‘o e tangi’. Kau heni ‘a e pehē na’e hala ‘a e tu’utu’uni ‘a e Fakamaau Lahi ko Cooper, ‘ikai tonu ke ngāue’aki ‘a e law of agency pe ko e lao ‘eni ‘oku’ ne faka’atā ha fengāue’aki ‘a ha toko ua pea ko e tu’utu’uni pe ko ē ‘e iku ki ai’ ‘e lau pe ko hona loto kotoa ia’. Na’e ‘ikai tui ‘a Whitten ki he taukapo ko ‘eni mo ne pehē ne tonu pe tu’utu’uni ‘a Coopper mo hono tautea’i ‘o e ongo Lavulavu pea ‘oku ‘atā pe ke ngāue’aki ‘i Tonga ‘a e law of agency. ‘Oku ‘i ai foki e kehekehe he peila pe tauhi fakalao ki tu’a ha taha kuo fakahalaia’i pea tatali ke hilifaki hono tautea’ mo ha taha kuo tautea’i ka kuo’ ne kole peila ke tatali ai ki ha’ane tangi. Pehē ‘e he ‘Eiki Fakamaau Lahi’ ko e tali ko ia ha taha kuo tautea’i hangē ko e ongo Lavulavu’ ke peila ki tu’a ‘e ala lau ia ‘e he kakai kuo fepaki ‘a e tu’utu’uni ‘a e fakamaau lahi’ ken a ngāue pōpula’ mo e tu’utu’uni ke peila kinaua ki tu’a’. Hangē ia kuo na ‘atā ai kinaua ke na laka tau’atāina holo he komiunitii’ lolotonga kuo ‘osi tautea ngāue pōpula kinaua. Na’e ikai tali ‘e he Eiki Fakamaau Lahi ‘a e poini ‘e 14 ne taukave’i ‘e he loea ‘a e ongo Lavulavu kae ai e pehē na’e hala ‘a e Fakamaau ne fai tu’utu’uni he hopo’.