Afamasaga v R - [2019] NZSC 16

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 5/2019
[2019] NZSC 16

BETWEEN	CALEB AFAMASAGA Applicant
AND	THE QUEEN Respondent

Court:	William Young, Glazebrook and Ellen France JJ
Counsel:	C G Tuck for Applicant K L Kensington for Respondent
Judgment:	27 February 2019

JUDGMENT OF THE COURT

The application for an extension of time to make an application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

Mr Afamasaga was convicted of murder and wounding with intent to cause grievous bodily harm in the context of a multi-accused trial.
He seeks leave (almost three years out of time) to appeal against a Court of Appeal judgment dismissing his appeal against conviction.[1] The reason given for the delay is difficulty in instructing counsel from prison and then counsel needing time to consider the file.
[1]Afamasaga v R [2015] NZCA 615, (2015) 27 CRNZ 640 (Stevens, Heath and Collins JJ).
The application concerns four text messages exchanged between a co-accused (Mr Makalima) and a woman friend (Ms Fifita). The text messages in question referred to “Chucky” (Mr Afamasaga) going to shoot “Big D” and “the dudes that came last night”.
The texts were ruled inadmissible against Mr Afamasaga (on the basis that they were not in furtherance of the conspiracy). A judicial direction to that effect was given in the summing up:
[115]    One final direction on the use of these text messages. There are a number of messages between one of the defendants charged with Count 1 and a third person, such as Rose Fifita and Edgar or Sosaia Laloni. Virtually all of these are before around 9.00 p.m. on 16 December 2012 and are therefore only admissible against the defendant who sent it, not against the other two defendants. There are, however, a few text messages after 9.00 p.m. on 16 December between one of the defendants and a third person, such as Rose Fifita and Edgar Laloni.
[116]    An example, which has been referred to often by counsel, is the text message at 5:16 p.m. on 17 December 2012 between Mr Makalima and Ms Fifita “Yeah an dn chuky gna shoot big d”. This is just 18 hours before the shooting. However, I direct you that this message and all others between Mr Makalima and Ms Fifita are only evidence against Mr Makalima and not Mr Afamasaga and Mr Banaba because the Crown does not allege Ms Fifita was part of the joint criminal enterprise to shoot Mr Turner and also the messages were not in furtherance of the conspiracy. They are best interpreted as Mr Makalima trying to impress Ms Fifita with whom he was trying to form a romantic attachment.
…
[118]    Now those directions may seem rather artificial, but it is important you follow them in order to ensure a fair trial for all the defendants. If you have any difficulties please come back to me with a question. But remember that in general text messages between two of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Afamasaga v R

Details

AGLC: Afamasaga v R [2019] NZSC 16
Case: [2019] NZSC 16
Decision Date: 27 February 2019

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Caleb Afamasaga sought to appeal against his conviction for murder and wounding with intent to cause grievous bodily harm. The appeal was dismissed by the Court of Appeal almost three years prior to the application for leave to appeal. The applicant’s delay in seeking leave was attributed to difficulty in instructing counsel from prison and the counsel needing time to consider the file. The applicant sought leave to appeal against the Court of Appeal’s decision to dismiss his appeal against conviction. The central issue was whether the Court of Appeal had erred in excluding certain text messages as evidence against Afamasaga.

The applicant argued that the text messages were inadmissible and that any prejudice caused could not be adequately addressed by judicial direction. The text messages were exchanged between a co-accused and a third party and referred to the applicant going to shoot another individual. The Crown contended that leave to extend time should not be granted, as there was no matter of general importance and no risk of a miscarriage of justice. The Supreme Court considered the delay in applying for leave to appeal and whether any prejudice caused by the text messages suggested a risk of a miscarriage of justice. The Court found that there was no adequate explanation for the long delay and that the trial judge had clearly directed that the text messages were not to be used against the applicant. The Court dismissed the application for an extension of time to apply for leave to appeal.

The Supreme Court dismissed the application for an extension of time to apply for leave to appeal against the Court of Appeal’s decision to dismiss the applicant’s appeal against conviction. The Court found that the applicant had not provided an adequate explanation for the long delay in applying for leave to appeal and that there was no risk of a miscarriage of justice.

Orders