Afamasaga v R [2023] NZCA 421 (15 September 2023)

Last Updated: 18 September 2023

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)

• [1] 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.
• [2] 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]
• [3] 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.
• [4] We have carefully considered Mrs Afamasaga’s submissions, but we cannot grant the application for recall. There are two reasons for this.
• [5] 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

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

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

---

^[1] Afamasaga v R [2015] NZCA 615.

^[2] Afamasaga v R [2019] NZSC 16.

^[3] R v Afamasaga [2014] NZHC 2142.

^[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 [2002] NZCA 335; [2003] 3 NZLR 617 (CA) at [36].