At his trial in the District Court at Manukau, the Crown claimed that Kovinantie Fukofuka shot two men outside a local nightclub. He was charged with two counts of wounding with intent to cause grievous bodily harm.[1]
[1]Crimes Act 1961, s 188(1); the maximum penalty is 14 years’ imprisonment.
The two men did not know their attacker. A few days after the shooting the Police undertook a formal identification procedure using a photographic montage. One of the men, Valu Kolofale, picked out Mr Fukofuka as the man who had shot him and the other victim.
However, unbeknownst to the Police, Mr Kolofale had been referred to a YouTube clip featuring local rap artists. He immediately recognised one of them as the gunman. It was Mr Fukofuka.
At his trial, Mr Fukofuka objected to the admission of Mr Kolofale’s formal identification. He said it was tainted due to Mr Kolofale’s his earlier viewing of the YouTube footage.
Judge Bergseng ruled the evidence admissible.[2] The jury convicted Mr Fukofuka on both charges. He was sentenced to eight years and four months’ imprisonment with a minimum period of imprisonment (“MPI”) of three years and four months.[3]
[2]R v Fukofuka [2018] NZDC 7469.
[3]R v Fukofuka [2018] NZDC 15482.
Mr Fukofuka now appeals his conviction and sentence.

The offending

On 14 May 2017 Mr Fukofuka was at a Manukau nightclub with friends. One of his friends was asked to leave because of his behaviour. Mr Fukofuka left with him. Once outside the nightclub Mr Fukofuka became involved in a number of physical skirmishes. Two of the men he was fighting with were Manase Lasike and Mr Kolofale. Part of what happened outside the nightclub was captured on CCTV. This showed Mr Fukofuka being punched in the side of the head. He fell to the ground where he was hit again.
Mr Fukofuka then got to his feet and disappeared from view. Twenty-six seconds later he returned. But now he was armed with a .22 firearm. Firing shots as he went, he first approached Mr Lasike. He shot Mr Lasike through the right knee. Then he turned his attention to Mr Kolofale. He shot him through the right thigh. In total he fired at least five shots. Mr Kolofale and Mr Lasike were taken to hospital and treated. Mr Kolofale was discharged later that day.

The visual identification evidence

On 26 May 2017, 12 days after the shooting, Detective…

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.

Continue reading Fukofuka v R

Details

AGLC: Fukofuka v R [2019] NZCA 290
Case: [2019] NZCA 290
Decision Date: 8 July 2019 at 11.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard the appeal of Kovinantie Fukofuka against both his conviction and sentence for wounding with intent to cause grievous bodily harm. Fukofuka had been charged with shooting two men outside a Manukau nightclub. The key issue on appeal was the admissibility of the identification evidence provided by one of the victims, Valu Kolofale, who had viewed a YouTube video featuring the alleged shooter prior to participating in a formal identification procedure. The appeal also contested the severity of the sentence, including the imposition of a minimum period of imprisonment (MPI).

The Court of Appeal found that despite the contamination caused by Kolofale viewing the YouTube video, the identification was reliable given the totality of circumstances, including Kolofale's certainty, the physical conditions during the offence, and corroborative evidence from other witnesses. The Court of Appeal concluded that the District Court Judge had correctly assessed the reliability of the identification evidence and dismissed the appeal against conviction. Regarding the sentence, while the Court of Appeal found the starting point and uplift to be appropriate, it disagreed with the imposition of a 40% MPI, finding that a standard one-third MPI was sufficient. Therefore, the appeal against the sentence was dismissed except for the MPI, which was quashed.

The final orders of the Court of Appeal were that the appeal against conviction was dismissed, and the appeal against sentence was dismissed except for the order in respect of the MPI, which was quashed.

Orders