Afamasaga v The King

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA544/2014
[2023] NZCA 421

BETWEEN	CALEB AFAMASAGA Applicant
AND	THE KING Respondent

Court:	Miller and Collins JJ
Counsel:	Applicant in person Z A Fuhr for Respondent
Judgment: (On the papers)	15 September 2023 at 9.30 am

JUDGMENT OF THE COURT

The application to recall judgment [2015] NZCA 615 is declined.

____________________________________________________________________

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

CaseChat Overview and Summary

Caleb Afamasaga applied to the Court of Appeal of New Zealand for a recall of the judgment made in 2015 dismissing his appeal against his conviction for murder and wounding with intent to cause grievous bodily harm. Afamasaga's wife submitted the application on his behalf, citing discrepancies between the Court of Appeal's statement of facts and those set out in the sentencing notes of the trial judge. Afamasaga has a long-term brain injury. The court was required to determine whether the application met the criteria for recalling the judgment, particularly whether the alleged error would cause a substantial miscarriage of justice.

The Court of Appeal declined the application for recall. The court found no indication that failure to correct the alleged error would cause a substantial miscarriage of justice. Furthermore, the court found no error in its judgment which recorded the facts established at the trial and accepted by the trial judge. The court relied on previous cases which set out the criteria for recalling a judgment.

The application to recall the judgment [2015] NZCA 615 is declined.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established