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Afamasaga v R

Afamasaga v R

Case [2015] NZCA 615 18 December 2015

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA544/2014
[2015] NZCA 615

BETWEEN	CALEB AFAMASAGA Appellants
AND	THE QUEEN Respondent

CA565/2014
BETWEEN	JOSHUA MAKALIMA Appellant
AND	THE QUEEN Respondent

CA566/2014
BETWEEN	KEVIN BANABA Appellant
AND	THE QUEEN Respondent

Hearing:	21 July 2015
Court:	Stevens, Heath and Collins JJ
Counsel:	P K Hamlin and E Burton for Mr Afamasaga M N Pecotic for Messrs Makalima and Banaba M D Downs for Respondent
Judgment:	18 December 2015 at 11.00 am

JUDGMENT OF THE COURT

AMr Afamasaga’s appeal against conviction and sentence is dismissed.

BMr Banaba’s appeal against conviction and sentence is dismissed.
CMr Makalima’s appeal against conviction and sentence is dismissed.

_______________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

Table of Contents

Para No

Introduction  [1]
Grounds of appeal  [5]
A killing in Ranui

Background [10]
The plan [13]

Mr Afamasaga: conviction appeal

Competing contentions [35]
The Judge’s directions on self-defence [39]
Analysis

(a) Introductory comments [46]

(b) The criticisms of the summing-up [48]

(d) Evidential complaints[63]

(e) Outcome[71]

Mr Afamasaga: sentence appeal [72]
Party liability: legal principles [77]
Mr Banaba and Mr Makalima: conviction appeals

Unreasonable verdicts  [81]
Inconsistent verdicts  [90]
Withdrawal  [96]

Mr Banaba: sentence appeal  [101]
Mr Makalima: sentence appeal  [107]
Result   [114]

Introduction

Following a trial in the High Court at Auckland before Woolford J and a jury, Mr Caleb Afamasaga and Mr Kevin Banaba were each found guilty on one charge of murder and another of wounding with intent to cause grievous bodily harm. Mr Joshua Makalima was found guilty of manslaughter, arising out of the same events.
Mr Edgar Laloni and Mr Sosaia Laloni were charged with being accessories after the fact to murder. They helped Mr Afamasaga flee the scene and tampered with evidence. They were each found guilty. Another associate, Mr Samuel Lachmaiya, pleaded guilty before trial to one charge of being an accessory after the fact to murder and one of unlawfully possessing a firearm. No appeals are brought against the convictions of the Laloni brothers and Mr Lachmaiya.
On 22 July 2014, after the High Court trial had been completed, Messrs Banaba, Makalima, Edgar Laloni, Sosiana Laloni and Lachmaiya each pleaded guilty, in the District Court, to one representative charge of selling the Class C controlled drug, cannabis. Those offences formed part of the sentencing in the High Court.
Including those imposed for the cannabis offending, the effective end sentences were:[1]
(a)Mr Afamasaga was sentenced to life imprisonment, with a minimum period of imprisonment of 14 years.
(b)Mr Banaba received a life sentence, with a minimum period of imprisonment of 11 years.
(c)Mr Makalima was sentenced to 10 years and four months’ imprisonment, with a minimum period of imprisonment of four years and two months.[2]

A first strike warning was given in respect of each of the appellants.

Grounds of appeal

[1]R v Afamasaga [2014] NZHC 2142 at [43], [61] and [62].

[2]The minimum period was fixed by reference…

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 The Queen [2015] NZCA 615
Case: [2015] NZCA 615
Decision Date: 18 December 2015

CaseChat Overview and Summary

Caleb Afamasaga, Kevin Banaba, and Joshua Makalima appealed their convictions and sentences, following a trial in the High Court at Auckland before Woolford J and a jury. Caleb Afamasaga and Kevin Banaba were found guilty on one charge of murder and another of wounding with intent to cause grievous bodily harm. Joshua Makalima was found guilty of manslaughter, arising out of the same events. Caleb Afamasaga was sentenced to life imprisonment, with a minimum period of imprisonment of 14 years. Kevin Banaba received a life sentence, with a minimum period of imprisonment of 11 years. Joshua Makalima was sentenced to 10 years and four months’ imprisonment, with a minimum period of imprisonment of four years and two months. The primary issue raised by the appellants was that the verdicts returned against them were unreasonable. Caleb Afamasaga argued that a miscarriage of justice occurred because the trial Judge failed to direct the jury adequately on self-defence and wrongly admitted evidence that was unfairly prejudicial to his defence. Kevin Banaba and Joshua Makalima argued that the jury’s verdicts were unreasonable because they were insupportable on the evidence adduced. The Court of Appeal found that the trial Judge did not misdirect the jury on the issue of self-defence. There was clear evidence to indicate that, at least from the time at which the six members of the King Cobras met at Universal Drive around 9 pm on 16 December 2012, Kevin Banaba and Joshua Makalima incited or encouraged Caleb Afamasaga to shoot Daniel Turner. The text messages provide a sufficient basis for a jury to infer that a plan to shoot was on foot, and that Kevin Banaba and Joshua Makalima were actively encouraging and inciting Caleb Afamasaga to carry out that plan. The Court of Appeal found that all grounds on which the appellants advanced their conviction appeals failed. All appeals against conviction and sentence are dismissed.

Orders