CALEB AFAMASAGA AND THE KING - [2024] NZCA 508

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA544/2014
[2024] NZCA 508

BETWEEN	CALEB AFAMASAGA Applicant
AND	THE KING Respondent

Court:	Collins, Brewer and Osborne JJ
Counsel:	Applicant in person M J R Blaschke for Respondent
Judgment: (On the papers)	10 October 2024 at 10 am

JUDGMENT OF THE COURT

AThe application to recall this Court’s judgment [2015] NZCA 615 is declined.
B The application for bail pending determination of the recall application is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

Mr Afamasaga has applied to recall this Court’s 2015 decision in which the Court dismissed his appeal against his conviction for murder and wounding with intent to cause grievous bodily harm.[1]
[1]Afamasaga v R [2015] NZCA 615.
Mr Afamasaga has also applied for bail pending determination of his recall application.

Background

Mr Afamasaga was convicted in 2014 after he shot two men in a gang related incident in Ranui.[2] Mr Afamasaga accepted that he had fired the shots but said he was acting in self-defence. He was represented by experienced counsel and gave evidence in support of his argument he was acting in self-defence when he shot at the rival group.
[2]See R v Afamasaga [2014] NZHC 2142.
In 2015, this Court dismissed Mr Afamasaga’s appeal against conviction and sentence. The Supreme Court subsequently declined Mr Afamasaga’s application for an extension of time to make an application for leave to appeal his conviction.[3]
[3]Afamasaga v R [2019] NZSC 16.
In 2023, Mr Afamasaga unsuccessfully sought to recall the 2015 decision.[4] The application before us is therefore the second application to recall this Court’s 2015 judgment.

The application for recall

[4]Afamasaga v R [2023] NZCA 421.

Mr Afamasaga contends that the material he has filed shows that there was an error in disclosure and that material that he now has would have supported his claim of self-defence. In particular, Mr Afamasaga suggests:
(a)that a 111 call transcript supports self-defence because it tends to establish that the deceased had a firearm;
(b)other call transcripts, including police communication logs show that callers identified persons other than Mr Afamasaga as being the offender; and
(c)reports and statements from Institute of Environmental Science and Research Ltd (ESR) support the contention there was a firearm in the opposite gang.

Recall jurisdiction

In Uhrle v R, the Supreme Court summarised the principles governing the Court’s criminal recall jurisdiction.[5] For present purposes we need refer to just three of the principles articulated in Uhrle:[6]
(a)recall is not ordinarily available where statutory appeal rights subsist or where there is an alternative effective remedy (such as Te Kāhui Tātari Ture | the Criminal Cases Review Commission);
(b)the jurisdiction is exceptional and is only engaged where a real or significant injustice will be caused by not recalling the Court’s earlier judgment;
(c)The standard is high requiring the applicant to show the Court’s previous judgment has caused a substantial injustice.

Analysis

[5]

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.

Keep reading for free

Create a free CaseChat account to read CALEB AFAMASAGA AND THE KING and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZCA 508
Decision Date: 10 October 2024 at 10 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application from Caleb Afamasaga, who sought to recall the Court's 2015 decision dismissing his appeal against his conviction for murder and wounding with intent to cause grievous bodily harm. Afamasaga, who was convicted in 2014 for shooting two men in a gang-related incident, had previously unsuccessfully sought to recall the 2015 judgment. This appeal is his second attempt to have the 2015 judgment recalled. The Court was required to determine whether the material Afamasaga filed showed an error in disclosure that would have supported his claim of self-defense and warranted recalling the earlier judgment. The Court also had to decide whether Afamasaga was eligible for bail pending the determination of his recall application.

The Court of Appeal concluded that the material Afamasaga sought to rely on was either previously available and used at his trial or contradicted the defence he chose to run. The Court found that the 111 call transcript Afamasaga relied on was extensively used by his defence counsel during the trial, and other call transcripts identifying other persons as the offender contradicted his self-defense claim. The forensic reports from the Institute of Environmental Science and Research Ltd (ESR) were also used by the defence to argue that the forensic evidence did not support the Crown's theory that only Afamasaga fired shots. The Court found that Afamasaga's application did not meet the criteria for recall as specified in Uhrle v R, and his application for recall was declined. As a result, the Court also declined Afamasaga's application for bail pending the determination of his recall application.

The Court of Appeal declined the application to recall the 2015 judgment and also declined the application for bail pending determination of the recall application. The Court found that the material Afamasaga sought to rely on either was previously available and used at his trial or contradicted his self-defense claim, and his application did not meet the criteria for recall. Consequently, the appeal was dismissed, and Afamasaga's application for bail was declined.

Orders