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R v Lavulavu [2025] TOCA 9; AC 17 of 2024 (16 May 2025)

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


AC 17 of 2024
[CR 173-174 of 2018]


BETWEEN
REX
Appellant


AND
‘AKOSITA LAVULAVU
‘ETUATE LAVULAVU
Respondents


Hearing:
9 May 2025


Court:
Randerson, Harrison and Morrison JJ


Counsel:
James Lutui, Director of Public Prosecutions, for the Appellant
Fanga Afu for First the Respondent
Second Respondent in person


Judgment:
16 May 2025


JUDGMENT OF THE COURT


Introduction

  1. The respondents Mr and Mrs Lavulavu have been charged with obtaining money by false pretences, contrary to s 164 of the Criminal Offences Act. They were the principals of an educational establishment known as the ‘Unuaki’o-Tonga Royal Institute (UTRI). The essence of the Crown case against them is that they inflated the numbers of students attending the UTRI in relevant periods thereby obtaining substantially greater grants from the Ministry of Education and Training than they were entitled to receive.
  2. The prosecution has had a long and convoluted history. There have been three appeals to this Court. The details are set out in our judgment of 16 December 2024[1] and need not be repeated.
  3. We are now concerned with an appeal and a cross-appeal from a ruling made by Acting Justice Langi on a voir dire in which she ruled that an Audit Report from the Office of the Auditor-General of Tonga was inadmissible at the pending second trial of Mr and Mrs Lavulavu.
  4. The main focus of the objection as to admissibility is on statements and information recorded in the Report as a result of inquiries made by officials in the Audit Office who interviewed persons named in student lists supplied by the UTRI. Those interviewed included the students listed, members of their families and, in some cases, town officers in the villages in which students listed in the UTRI records were thought to reside.
  5. Part of the Crown case is that the Ministry policies for grant eligibility required proof that students had paid a fee of $100.00 per semester. The Report states that the UTRI had a practice of allowing tuition fees to be met by other means such as student loans, commodity exchange, and working on a part-time basis for the UTRI in some capacity. The view of the Auditor-General was that these practices were not permitted by the relevant Ministry grant policies and Cabinet decisions.
  6. The cross-appeal by the respondents challenges the finding below that the Audit Office did not unlawfully uplift documents from the UTRI.

The issues on appeal

  1. On appeal the Crown has sensibly adopted a practical approach that may be summarised as follows:

(iii) Any other admissible evidence.

(d) It does not intend to lead evidence on expenditure in paragraphs 25 to 35 of the Report.
  1. We base our consideration of the issues on the detailed account by the Judge below of the oral evidence given at the voir dire, her firm factual findings and our examination of the key documents namely the Report as well as some of the underlying worksheets. We record that we ruled in our judgment of 16 December 2024 that there was no need to have the lengthy evidence transcript available for the reasons then given.

Did the Report contain inadmissible hearsay?

  1. We begin by describing the contents of the Report which is dated 5 October 2016. It was provided to the Ministry under the signature of the Auditor-General, Sefita Tangi. It was described as the annual audit of the TBET grant paid to the UTRI for the period ended 30 June 2015. It covered the amount of the grant paid to the UTRI for the first semester of 2013, the second semester for 2014 and the first semester for 2015. It is in two parts. Part A deals with income received by UTRI, based on the number of students claimed to attend UTRI; Part B deals with expenditure: how UTRI spent the grant money it received from the Government.

Part A Student Numbers

  1. Relevantly, the Report states that the UTRI had overstated the number of students attending over the relevant period by 942. This resulted, according to the Report, in an overpayment of $553,800.00. The Crown case is that the persons named in these lists were not students that UTRI was entitled to rely upon for grant purposes.
  2. Mr Lutui accepted for the Crown that specific paragraphs in the Report which he identified were prima facie hearsay. But he contended, as he did in the Court below, that they were admissible in terms of the exception to the hearsay rule identified in s 89 (o) of the Evidence Act[2].The paragraphs which Mr Lutui identified in the Report are paragraphs 10–13 inclusive; paragraph 18 and Table 2 in paragraph 22. Mr Lutui also accepted that the conclusions drawn from or consequential upon those paragraphs were also potentially inadmissible. We now deal with each of the paragraphs identified by the Crown.

Paragraph 10

  1. This simply records that the Audit Office had verified and confirmed that the total of 19 students attended the UTRI during the three semesters and qualified for the TBET grant. They had paid their tuition fees and had attended school for the whole duration of the relevant semester. It is difficult to see that this paragraph constituted hearsay since it was derived from an examination of the UTRI’s own records.

Paragraph 11 Unverified ‘receipted students’

  1. Paragraphs 11–13 are all under the heading “Unverified ‘receipted students’.” Paragraph 11 states there were 34 students who the Auditor was satisfied had studied at the UTRI. However, UTRI’s records showed that these students tuition fees had been settled not by a monetary payment, but through other arrangements, namely a part-time job for the UTRI while studying full-time. The paragraph goes on to state that there was no record of this practice being maintained by the UTRI; job details, each student’s wages, payment of wages and/or transfer of money and receipt as school/tuition fees. This was said to result in a grant overpayment of $20,400.00. To the extent that this paragraph records the results of an examination of the UTRI records it is not hearsay.

Paragraph 12

  1. The Report states there were 23 people named in the UTRI’s records as students who stated to audit officers that they did not attend the UTRI at all and did not know how their names came to be registered as students. This was said to result in a grant overpayment of $13,800.00. The content of this paragraph results from interviews with those named and is prima facie hearsay unless allowed by one or more exceptions to the rule.

Paragraph 13

  1. The same conclusion applies to this paragraph. It states there were 105 people named in UTRI’s records who said that no school fees were paid by them, and that they had not attended the UTRI. The 105 names dealt with in this paragraph were broken down into three sub-categories. The largest was a category of 97 names who had “Not attended school”. The sub-category of 97 names was further broken down into five sub-groups. The largest of these was said to be 71 names of people who had completed an application form but never studied. Others were said to have been members of the floor show at the UTRI; took part in a band there; or had worked at the UTRI restaurant but had never studied. The conclusion was that the student numbers had been overstated by 105 with a resulting grant overpayment of $63,000.00. This material is prima facie hearsay.

Paragraph 18

  1. This paragraph states that the UTRI records show 35 names and addresses of persons said to be students, but when audit officers went looking for them, there were no persons of those names in the declared village in the application forms, resulting in a grant overpayment of $21,000.00. This is prima facie hearsay as it relies on the evidence of the audit officers of inquiries made and responses given by others.

Table 2

  1. This table appears at paragraph 22 of the Report and summarises the preceding paragraphs 10–18 in numerical form. Its admissibility stands or falls on the conclusions that we have reached for the other material in the Report.

Other material not identified by the Crown as potentially hearsay

  1. There are several other paragraphs in the Report requiring examination but not identified by the Crown. The Crown’s argument in each case is that these are admissible as being derived from an examination of UTRI’s records or the Auditor’s opinion based on information in those records.

Paragraph 14 Student Loan Contracts

  1. This refers to documents in UTRI’s records comprising 278 applications for enrolment with attached Student Loan Contract Agreements for an amount of $670.00, all relating to the second Semester of 2014. The Report states that the Audit Office could not obtain an assurance about the validity of these Agreements. That was because the repayment terms were not clearly or completely stated; the Audit Office could not verify the full repayments of each loan because there were no other UTRI records that recorded or revealed if repayments were actually made. The Report observes that the fee payable per student each semester of $100.00 was well below the alleged loan amount of $670.00. The report writer also offers the opinion that the loan contract documents were proffered by UTRI as a record of the settlement of the tuition fees; the agreements did not bind either the Institute or the named students; the loans did not relate to tuition fees; and had resulted in a grant overpayment of $166,800.00. Our conclusion is that the material in this paragraph is not prima facie hearsay. It derives from UTRI records and the absence of supporting documentation in those records.

Paragraph 15 Commodity Exchange

  1. We reach the same conclusion in respect of this paragraph. It states that in the records of UTRI, there were 62 application forms referring to “Commodity Exchange”. The paragraph states that this was a reference to school fees being paid through giving commodities to the UTRI instead of cash. This practice was confirmed to have been in existence and stated in the application forms. However, the Report states that there were no other records kept by the UTRI which showed a description of the commodity provided or its monetary value. It was concluded that there was an overpayment of the grant by $37,200.00. This paragraph is not hearsay.

Paragraph 16 Work for the Institute

  1. Our view is the same in relation to paragraph 16 of the Report which states that the UTRI records contained 100 application forms on which it was stated:

“Work for the Institute/Verbal Agreement to work for the Institute.”

  1. The explanation proffered to the auditors was that the students referred to in those application forms carried out certain jobs for the Institute in exchange for school fees which would otherwise have been payable by them. The paragraph records that there were no records maintained by UTRI to document this practice and the conclusion was reached that there had been a grant overpayment of $60,000.00. This paragraph is not hearsay.

Paragraph 17

  1. Paragraph 17 refers to what appears to be the largest overpayment category. It states the records of UTRI showed 286 names of persons claimed to be students in respect of whom there were no, or incomplete, application forms. The application form is to be completed by all students and is the source document for the student registration. The paragraph goes on to state that the UTRI practice was to have application forms completed in its administration office, but it also obtained applications in a process known as “recruit mei tu’a”.
  2. The Report records that it had been explained to the audit officers that a UTRI team went out to Nuku’alofa and to certain villages with the application forms. This was designed to facilitate the recruitment process. This was said in the Report to be consistent with the explanation from some of the individuals interviewed that their personal information had been obtained from other sources such as the completion of surveys for other purposes. The Report states that the view of the Audit Office was that this was “totally not acceptable and void”. It concludes that the grant overpayment in respect of these 286 names was $171,600.00.
  3. To the extent the content of this paragraph simply derives from an examination of the UTRI records, it is not hearsay, but those parts that derive from inquiries made of others are prima facie hearsay.

Paragraph 19

  1. This states that, for all the practices explained in paragraphs 11–18 under the auditors’ heading ‘unverified receipted students’, there was no evidence of any movement or payment of cash to the UTRI as fees instead of the other arrangements examined. Nor was there any record kept by the UTRI of these arrangements. These observations are not prima facie hearsay except for the second sentence of paragraph 19 stating:

“However, the registration officer at the time was just instructed to receipt the school/tuition fees for those students without receiving any money at all.”

  1. This statement is prima facie hearsay unless it can be established by direct evidence that the statement was proffered by or on behalf of Mr and Mrs Lavulavu or by direct evidence from staff members, in which case it is admissible.

Paragraph 20 Students Attendance Register

  1. This relates to the roll call records of attendance of students during the relevant periods. The Report states that these appeared to be complete and in order as they were computer printouts of Excel spreadsheets. The Report records that the principal had explained that the roll calls were carried out by the teachers electronically so there were no manual records. This statement may be admissible if proved by appropriate evidence. However, paragraph 20.1 is hearsay. It depends on information apparently supplied by others, the principal and some teachers, to the effect that there were no roll calls carried out and no recording of students’ attendance during class inside the classroom; and that the recording of attendance was done by the administration officers at the administration office. There is also reference to statements by some teachers that the number of students recorded by the administration officers was higher than the number of students in the classes. These explanations obtained from others are prima facie hearsay but is admissible if proved by appropriate evidence at trial to have been offered by or on behalf of Mr and Mrs Lavulavu or b direct evidence by staff members.

Paragraphs 21 -24

  1. These paragraphs are a summary of the conclusions reached in the preceding paragraphs of the Report and conclusions and recommendations based on those paragraphs. They are consequential upon some material that we have concluded is prima facie hearsay. To that extent, these paragraphs are also prima facie hearsay.

The interview process undertaken by the Audit Office

  1. The Judge summarised the evidence the Crown called at the voir dire about the interview process adopted. The Crown called Salome Lavemaau, Lutimila Tafea and Popua Mafi, audit officers employed at the Auditor-General’s Office. These officers, at times also involving two other officers (Patele Tongilava and Kalisi Fifita), had gone out to various villages to interview students whose names were on the UTRI enrolment lists. The lists contained each student’s name and the village in which he or she resided. The audit officers would find the homes of the students listed and inform them that they wished to interview them. They asked three standard questions:
  2. 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. Salome said that it was important to ask the students about the form of payment of the school fees because the UTRI documents contained different forms of payment as we have discussed above.
  3. Lutimila said in evidence that the list of student names had telephone numbers for them. They found that most of the phone numbers were not in operation and had to go out to the villages. 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 would record the questions and the answers. The normal process was that Popua would ask the questions, and the answers were recorded either by Lutimila or Salome. The Judge recorded that sometimes the audit officers would ask a student’s name and were told there was no such person. On other occasions, the actual person they were looking for was not at home, so members of the family were interviewed. Lutimila gave evidence that they would just go to the villages and ask people walking on the road if they “knew so and so”.
  4. Popua also gave evidence about the interview process. Of all those interviewed, no one refused to answer their questions. She confirmed that when students were unreachable, interviews were conducted with the 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. She agreed that UTRI had not been informed that these interviews were taking place and had not consented to the Audit Office conducting interviews with the students. Popua accepted that some of the interviewees had not signed the worksheet and could not recall the reason for this. She also agreed that the worksheet (produced as Exhibit 16 in the Court below) contained statements with no name listed as to who had given the statement.

The worksheet Exhibit 16

  1. We have examined part of the Crown Exhibit 16 which is a summary of the material that the audit officers obtained from their interviews with students, family members and others during the interviews they conducted as part of their inquiries. For completeness we conclude that this summary and any further records of such interviews are also prima facie hearsay and inadmissible.

Hearsay evidence – the Judge’s findings and our assessment

The exception to the hearsay rule in s 89(o) of the Evidence Act

  1. In 2024, the Evidence Act was amended to provide a wide discretion to admit hearsay evidence “where the Court is satisfied that it is in the interests of justice” to do so.[3] We do not accept the submission by the respondents that this provision could not be relied upon retrospectively. The 2024 change to the Evidence Act affects the procedural law, not the substantive law. Any provision relating to the admissibility of evidence may be relied upon if it is in force at the time of trial (or earlier voir dire) unless the statute provides otherwise.
  2. The Judge noted that the exception in s 89(o) was modelled on s 114 of the Criminal Justice Act 2013 (UK) which set outs the matters to be taken into account by the Court in considering whether it is in the interests of justice to admit hearsay evidence:
  3. The Judge placed substantial weight on clause 11 of the Constitution which provides that a defendant in a criminal case is entitled to have the Crown’s witnesses brought “face to face with him (except according to law) and he shall hear their evidence and shall be allowed to question them”. She concluded[4] that the Crown “in attempting to have the Report admitted as truth of its contents would defeat the constitutional requirement and was inherently unfair”. She said Mr and Mrs Lavulavu would not have an opportunity to test the evidence and could not dispute the truth or otherwise of the statements made in the worksheets with the persons who made them. That, she considered, was inherently wrong. Otherwise, she accepted that the disputed evidence had probative value but added that this assumed the truth of the statements made at interview by students, relatives and town officers.
  4. We agree with Mr Lutui that the Judge has perhaps over emphasised the constitutional right given that it allows for exceptions (including most obviously the exceptions outlined in s 89 of the Evidence Act). Nevertheless, we agree with the conclusion reached by the Judge for the reasons she gave that it is not in the interests of justice in terms of s 89(o) to allow the Crown to adduce evidence of the statements made to the audit officers by those they interviewed. We accept Mr Lutui’s submission that the disputed material goes to the heart of the Crown case and has probative value if the truth of the statements is assumed. We accept too that many of the people interviewed are now no longer available to give evidence. However, we have concerns about the reliability of the evidence obtained, particularly in cases where people other than the students listed by the UTRI were not themselves interviewed. We also agree with the Judge that there would be significant prejudice to Mr and Mrs Lavulavu if they are unable to cross-examine those involved.

Were the documents uplifted by the Audit Office from the UTRI inadmissible because they were obtained unlawfully?

  1. Mr and Mrs Lavulavu argued first that the Report should have been excluded because the audit officers had stolen documents from the UTRI. The Judge rejected the submissions by Mr and Mrs Lavulavu on this point. She outlined[5] the principles at common law relating to unfairly or illegally obtained evidence. However, crucially, she made the firm finding[6] that the UTRI documents at issue had not been stolen. She had “no doubt” that the documents were taken with the approval of both Mrs Lavulavu and a senior staff member, Mele Tovi. The Judge said Mr and Mrs Lavulavu were only taking issue with the taking of the documents because they were not returned and were subsequently used to conduct an investigation, whereby they were arrested and charged. She found that any inconsistencies in the evidence of the Crown witnesses were not sufficient to suggest that they were lying to the Court.
  2. Our own review of the evidence as outlined by the Court below does not persuade us that there is any basis to depart from the Judge’s unequivocal factual findings on this issue and Miss Afu did not seek to argue otherwise.
  3. Finally, the Judge found[7] that even if the evidence established the documents had been stolen, she would have had no hesitation in using her discretion to admit unlawfully obtained evidence. Despite the submissions of the respondents to the contrary, we agree with that finding for the reasons she gave. That conclusion was inevitable given the finding that the documents were uplifted with the agreement of Mrs Lavulavu and senior UTRI staff.
  4. We record that Miss Afu also submitted that the Audit Office had obtained the documents unlawfully because no formal notice was given as required by s 14(e) of the Public Audit Act. However, we find that the Auditor-General had power to call for the documents under s 14(b) of the Act and was not required to give written notice in the circumstances determined by the Judge.

Summary and disposition

  1. It is necessary to refer to our detailed findings above for completeness but, in summary, the following material in the Audit Office Report is hearsay and inadmissible at the trial of the respondents except to the extent that is proved by direct evidence including records obtained from or supplied by the UTRI and the findings of members of the Audit Office in relation to those records:
  2. It is now accepted that the Audit Office Report is not itself admissible at the respondents’ trial but material in the Report that has not been found to be inadmissible hearsay may be given directly by appropriate witnesses at the respondents' trial. Depending on the context, statements and explanations made to audit officers by Mr and Mrs Lavulavu or others on their behalf are admissible if proved directly by appropriate evidence. Direct evidence of the nature and scope of the inquiries made to locate students and whether they were located in the places they were said to live may be given.
  3. Finally, we have found that documents uplifted from or supplied by the UTRI to the Audit Office were not obtained unlawfully and are admissible if formally proved.
  4. We record that in this judgment we draw no conclusions about the validity or otherwise of the views or conclusions offered in the Report or the amounts said to have been wrongly received. These are all matters for trial.
  5. We have detailed those parts of the content of the Audit Office Report that are admissible and those that are not. To that extent, the appeal is allowed in part.
  6. For the reasons given the cross-appeal is dismissed.

Randerson J


Harrison J


Morrison J

[1] R v Lavulavu AC 17/2024, 16 December 2024.
[2] Mr. Lutui abandoned reliance on s.89 (f) or on a common law exception to the hearsay rule.
[3] Evidence (Amendment) (No. 1) Act 2024, in force from 26 April 2024.
[4] Judgment at paragraph [283].
[5] Judgment at paragraphs [253]–[257].
[6] Judgment at paragraph [258].
[7] Judgment at paragraph [261].

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