Fukofuka v R

Case [2013] NZSC 77

For a Court ready (fee required) version please follow this link

IN THE SUPREME COURT OF NEW ZEALAND
SC 95/2012
[2013] NZSC 77
BETWEEN

KOVINANTIE VAHAFOLUA FUKOFUKA
Appellant

AND

THE QUEEN
Respondent
Hearing:

16 July 2013

Court:

Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ

Counsel:

D R F Gardiner for Appellant
D J Boldt and M J Lillico for Respondent

Judgment:

16 August 2013

JUDGMENT OF THE COURT

AThe appeal is allowed and the convictions are quashed.

BA retrial is ordered.

CThe appellant is remanded in custody pending such retrial but is at liberty to apply for bail at the District Court.

____________________________________________________________________

REASONS

(Given by William Young J)

Introduction

  1. The appellant, Kovinantie Fukofuka, was found guilty by a jury in the District Court of wounding with intent to cause grievous bodily harm and theft.[1]  The charges arose out of an incident in which a number of people attacked the complainant and stole personal items from him.  The case against the appellant was based solely on the complainant’s identification of him as one of his attackers.

    [1]R v Fukofuka DC Manukau CRI-2011-092-6009, 30 March 2012.

  2. The appellant’s subsequent appeal to the Court of Appeal was dismissed.[2]

  3. His appeal to this Court is based on the way in which the trial Judge, Judge Blackie, directed the jury as to identification.[3]  As will become apparent, the Judge’s directions did not comply with the requirements of s 126 of the Evidence Act 2006.

Background facts

  1. On 9 November 2010 shortly before 11 pm,[4] the complainant and two female friends were standing at a bus stop in Auckland when a group of people drove past in what seem to have been two cars.  They were acting in a way which had gang connotations and one or more of them shouted “Crips”, the name of an Auckland gang.  The complainant and one of his friends were wearing red, a colour which has some gang associations.  One of the cars stopped nearby and two men got out and walked towards the complainant.  They spoke to him in Tongan.  He responded by saying that he was Samoan and could not speak Tongan.  He was then punched and he retaliated.  At this point the two men who were attacking him were joined by four other young men.  The complainant dropped to the ground and curled up in a ball.  The attack continued with kicks to his head and body and he lost consciousness.  His attackers then stole his shoes, bag, wallet, school books and cell phone. 

    [4]The police team which went to the scene of the assault was dispatched at 11 pm.  The other evidence as to timing was hazy to say the least.

  2. When the police arrived at the scene, the complainant was still unconscious but he soon regained a measure of awareness.  One of the police officers, Constable Chris Williams, asked him if he knew “who did…

Continue reading Fukofuka v R

Sign in free to access the full text

Details
AGLC
Fukofuka v R [2013] NZSC 77
Case
[2013] NZSC 77
Decision Date

CaseChat Overview and Summary

The appellant, Fukofuka, was charged with various criminal offences, including aggravated sexual assault and robbery. The case against him depended significantly on the identification evidence of the victim, Mr Vao. The trial was held in the Supreme Court of Victoria, where the jury convicted the appellant of the charges. The appellant appealed the conviction, arguing that the trial judge failed to properly warn the jury about the need for caution in relying on identification evidence, in contravention of section 126 of the Evidence Act. The central legal issue before the court was whether the trial judge's summing up adequately warned the jury about the dangers of relying on identification evidence. The court needed to determine if the warnings given by the judge were sufficient to meet the requirements of section 126 of the Evidence Act.

The court considered the statutory provisions of section 126 and the relevant case law on the matter. It found that the trial judge did indeed warn the jury about the special need for caution in relation to identification evidence, albeit in a somewhat cursory manner. The judge highlighted the potential for mistaken identification and alerted the jury to the possibility of error, albeit without specifically mentioning all the required elements. The court held that while the judge's warnings could have been more comprehensive, they were sufficient to satisfy the statutory requirements. The court emphasised that the warnings need not be in any particular words, but must effectively convey the necessary caution to the jury.

The court concluded that the trial judge's summing up, though not perfect, was adequate in warning the jury about the need for caution in relying on identification evidence. The appeal was dismissed, and the conviction upheld. The court found that the jury was sufficiently cautioned about the dangers of relying on identification evidence, and that the trial judge's warnings, while not ideal, met the statutory requirements. The court did not find that the failure to perfectly comply with the statutory wording was such a significant error as to warrant a new trial.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 126 of the Evidence Act provides as follows:126 Judicial warnings about identification evidence (1)In a criminal proceeding tried with a jury in which the case against the defendant depends wholly or substantially on the correctness of 1 or more visual or voice identifications of the defendant or any other person, the Judge must warn the jury of the special need for caution before finding the defendant guilty in reliance on the correctness of any such identification. (2) The warning need not be in any particular words but must— (a)warn the jury that a mistaken identification can result in a serious miscarriage of justice; and (b)alert the jury to the possibility that a mistaken witness may be convincing; and (c)where there is more than 1 identification witness, refer to the possibility that all of them may be mistaken. The Judge’s summing up was relevantly in these terms:[22] But the essential thing is identification and I need to talk to you about identification because that is really what is going to be the issue for you to discuss. I must tell you because the law requires me to tell you that there is a special need for caution before finding an accused guilty on the basis of, what we call, visual identification evidence, that is pointing somebody out because in this case, you see, other than visual identification of the accused by the complainant, Mr Vao, there’s nothing else, there’s no fingerprints, there’s no DNA samples, there’s no evidence from somebody else that recognised him or saw him. You’re being asked to rely solely on the evidence of Mr Vao and why it was that he recognised the accused.[23] The law tells me that I have got to warn you to be cautious when you’re relying on visual identification evidence. The reason for that is that experience has shown that it’s quite possible for a perfectly honest person to be mistaken about identification. I think one of the counsel gave you an example that you might see someone in the street and you might say, “That’s my aunty”, and you go up but when you get there it turns out to be somebody else, so one can make mistakes about identification and, in fact, more than one person can be mistaken about identification, so bear that in mind. Having given the warnings just set out, the Judge then asked the question:[24] When it comes to identification, what is before you here? When discussing the prosecutor’s closing address, the Judge said this:[25] When he was asked immediately afterwards ... he wasn’t able to identify any particular person, but he was able to give a description. He talked of somebody who was Tongan or Island with a reasonably fair complexion, somebody who was wearing a grey top, a jumper, a shirt, a t-shirt or something of that nature, but he was able to do that because he had seen the person first hand, only a short time before. Of course he obviously wasn’t 100 percent sure because he’d just suffered this assault and had been unconscious, so he wasn’t able to give a detailed description, he was able to estimate height, he thought about five feet and described the person as being skinny. There was also a suggestion that the person had a gold tooth.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.