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

1. 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.

2. Mr Afamasaga has also applied for bail pending determination of his recall application. 

Background

1. 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.

2. 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.

3. 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.

1. 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

1. 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]Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286.

[6]At [26] and [28]–[29]. 

111 call transcripts

1. The defence position at trial was that the deceased had a firearm.  Ms Pecotic’s (senior defence counsel) closing address used various 111 calls to support the evidence of other witnesses to argue that the group fired upon, including the victim, must have had a firearm with them. 

2. One of the 111 call transcripts Mr Afamasaga has specifically relied upon in his application, which he says was not previously disclosed, was relied on at length by Ms Pecotic. 

Other call transcripts

1. The suggestion that evidence identifying persons other than Mr Afamasaga as the offender is impossible to reconcile with the position that he deliberately took at trial namely, to admit he fired the shots, albeit in self-defence. 

ESR reports

1. The transcript Mr Afamasaga attaches shows that the ESR scientists were cross-examined by Ms Pecotic about the possibility of bullet damage and markings which could not have come from the shots fired by him.  Ms Pecotic was able to close on the basis that the forensic evidence did not support the Crown theory that only Mr Afamasaga fired shots. 

Conclusion

1. It is clear therefore, that the material which Mr Afamasaga now wishes to rely upon was either previously available and relied upon at his trial or, is contrary to the defence that he elected to run at trial. 

2. Mr Afamasaga’s application for recall fails by a considerable margin to meet any of the criteria specified in Uhrle.  Accordingly, his second application to recall this Court’s 2015 judgment is declined.

Bail

1. Mr Afamasaga’s application for bail pending determination of his recall application has been effectively determined by the disposition of his recall application.  The bail application is therefore declined.

Result

1. The application to recall this Court’s judgment [2015] NZHC 615 is declined.

1. The application for bail pending determination of the recall application is declined. 

Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent