Afamasaga v The King
[2023] NZCA 421
•15 September 2023 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA544/2014 [2023] NZCA 421 |
| BETWEEN | CALEB AFAMASAGA |
| AND | THE KING |
| Court: | Miller and Collins JJ |
Counsel: | Applicant in person |
Judgment: | 15 September 2023 at 9.30 am |
JUDGMENT OF THE COURT
The application to recall judgment [2015] NZCA 615 is declined.
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REASONS OF THE COURT
(Given by Collins J)
In 2014 Mr Afamasaga was convicted of murder and wounding with intent to cause grievous bodily harm. The offending occurred in 2012 when Mr Afamasaga was a prospect for membership of the King Cobra gang. The victim was a member of a rival gang.
In 2015, this Court dismissed appeals against conviction and sentence by Mr Afamasaga and his two co-offenders.[1] The Supreme Court declined Mr Afamasaga’s application to extend time for him to apply for leave to appeal his conviction.[2]
[1]Afamasaga v R [2015] NZCA 615.
[2]Afamasaga v R [2019] NZSC 16.
Mrs Afamasaga has now applied on behalf of her husband to have us recall our judgment, citing what she suggests are differences between our statement of the facts and those set out in the sentencing notes of Woolford J, the trial Judge.[3] Mrs Afamasaga has made the application because her husband has a long-term brain injury.
[3]R v Afamasaga [2014] NZHC 2142.
We have carefully considered Mrs Afamasaga’s submissions, but we cannot grant the application for recall. There are two reasons for this.
The application for recall does not satisfy the criteria for this Court to recall its judgment.[4] There is no indication that failure to correct the alleged error would cause a “substantial miscarriage of justice”.[5] Furthermore, there is no error in [10] of this Court’s judgment, which records the facts established at the trial and accepted by Woolford J.
Result
[4]Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [25]; and Jolley v R [2022] NZSC 150, [2022] 1 NZLR 595 at [18] and [19].
[5]Uhrle v R, above n 4, at [25] citing R v Smith [2003] 3 NZLR 617 (CA) at [36].
The application to recall judgment [2015] NZCA 615 is declined.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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