AUCKLAND, NZ The Supreme Court has dismissed the legal challenges made by convicted killers Mesui Tufui and Fisilau Tapaevalu after being found guilty of murdering an Auckland-based Tongan man.
In their decision this month March 18, three judges agree that no substantial miscarriage of justice has occurred and agree with the Court of Appeal’s decision, and the decisions by a judge in the High Court that two Tongan cousins Tufui and Tapaevalu were found guilty of the killing of ‘Epalahame Tu’uheava and the attempted murder of his wife, Yolanda.
Tufui can seek parole after 19 years, Tapaevalu after 17 years.
The latest court decision came after Tufui appealed his conviction and Fisilau Tapaevalu appealed his sentence early last year at the Court of Appeal after their sentencing at the High Court in August 2019.
Both appeals were dismissed in November last year.
‘Epalahame and his wife were shot multiple times in the head on a Mangere street in the early morning of 1 May 2018.
Yolanda survived after playing dead. She told the court in June 2018 the pair lived in Australia for around three years, until 2017.
She said during that time, her husband developed a close association to the leader of the Nomads gang.
When they returned to New Zealand for financial reasons, she told the court Epalahame started to take notice of the Comancheros.
“He admired them,” she said.
This month in March 18, in a decision delivered by Justices William Young, O’Regan and Ellen France, the Supreme Court ruled it was satisfied that nothing in Tapaevalu’s case, “gives rise to an appearance of a miscarriage of justice in the Court of Appeal’s assessment of the factual circumstances and the relative culpabilities.”
“The argument raised does not suggest such a possibility in this case,” the judges said.
“The criteria for leave to appeal are accordingly not met. The application for leave to appeal is dismissed”.
In Tufui’s case, the judges said “we accept the submission for the respondent that considering the issue in terms of trial fairness would not change the required analysis in this case from that adopted by the Court of Appeal”.
“The application for leave to appeal is accordingly dismissed.
Tufui sought leave to appeal based on claims “that he should have been permitted to put to Mrs Tu’uheava the arrest photographs of Mr Tapaevalu”.
He claimed these photos have “better quality than the image in the photograph montage she had been shown.”
He said that “the inability to put this evidence to the witness, which the Court of Appeal accepted was an error, resulted in a miscarriage of justice because there was a reasonable possibility that a different verdict would have been returned”.
Tapaevalu argued that “there is a public interest in considering the approach to sentencing for those in the role of a secondary party”.
He also argued that the “imposition of a 17-year minimum term of imprisonment was manifestly excessive given the features of his offending, including the finding that the murder was not premeditated; his role as a secondary party (as the driver, and not in a leading or organisational role); the fact he did not have a gun; and the fact he did not participate in the physical act of shooting”.
