Fukofuka v R
[2012] NZCA 510
•6 November 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA216/2012 [2012] NZCA 510 |
| BETWEEN KOVINANTIE VAHAFOLUA FUKOFUKA |
| AND THE QUEEN |
| Hearing: 30 October 2012 |
| Court: Harrison, Chisholm and Ronald Young JJ |
| Counsel: D R F Gardiner for Appellant |
| Judgment: 6 November 2012 at 11.15 am |
JUDGMENT OF THE COURT
AThe appeal against conviction is dismissed.
BThe appeal against sentence is dismissed except that the sentence of 12 months’ imprisonment imposed on the charge of theft is allowed. That sentence is quashed and we impose instead a concurrent sentence of three months’ imprisonment.
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REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
The Crown alleges that in early November 2010 the appellant, Kovinantie Fukofuka, and several others attacked Mr Vao at a bus stop in Auckland. They then stole personal items from him. Mr Fukofuka was the only member of the group who was apprehended and charged. Following a trial in the District Court the jury found Mr Fukofuka guilty of wounding with intent to cause grievous bodily harm and theft.
Mr Fukofuka challenges the identification evidence given by Mr Vao, the victim. He says Mr Vao’s identification evidence did not comply with s 45 of the Evidence Act 2006, and it should not therefore have been admitted in evidence at trial. Without that evidence he says the Crown could not prove he was guilty. Further, Mr Fukofuka submits that Judge Blackie, who presided, made an error of law when he failed to sum up to the jury in terms of s 126(2)(a) of the Evidence Act.
Mr Fukofuka also appeals his sentence of three and a half years’ imprisonment as manifestly excessive because the starting point and uplift for his past convictions was too great.[1] Finally, Mr Fukofuka says the one year imprisonment (concurrent) sentence for theft was beyond the statutory maximum of three months’ imprisonment.
Background facts
[1] R v Fukofuka DC Manukau CRI-2011-092-6009, 30 March 2012.
The issue at trial as far as Mr Fukofuka was concerned was the correctness of the victim’s identification of him as one of his attackers. The Crown case was that Mr Vao and two others were standing at a bus stop in Auckland. A group of people drove past in a vehicle calling out the name of an Auckland gang.
Shortly afterwards the same group came back, stopped the car and two men got out and walked towards Mr Vao and his friends. One of them then punched Mr Vao. Shortly afterwards he fell to the ground and four members of the group joined the original two kicking Mr Vao’s head and body. Mr Vao lost consciousness. He had his shoes, bag, wallet, school books and cell phone stolen. He suffered concussion, head injuries and serious bruising to his chest, abdomen and arms.
Challenge to the Identification Evidence
On 7 April 2011, the second of two photographic montages were shown to Mr Vao. He then identified Mr Fukofuka as one of the group who had assaulted him. The admissibility of this evidence was challenged during trial. The thrust of the objection was that the requirement in s 45(3)(b) of the Evidence Act, that the person to be identified be compared with no fewer than seven other persons of a similar appearance, was not met.
The Judge concluded that the seven other people included in the photo montage were sufficiently similar and allowed the identification evidence to be heard by the jury.
Mr Gardiner says that the Judge was wrong to allow the identification evidence to be heard by the jury because:
(a)a formal identification procedure was not undertaken as soon as practicable after the alleged offences (not raised in the District Court);[2]
(b)the photo montage included individuals who were not similar in appearance to Mr Fukofuka.[3]
[2] Evidence Act 2006, s 45(3)(a).
[3] Evidence Act, s 45(3)(b).
The victim’s identification of Mr Fukofuka had some relevant background. Immediately after Mr Vao had been assaulted, the Police arrived. Mr Vao was spoken to by a Police officer. He said that he did not know who had attacked him. Mr Vao at that stage was seriously injured and the Constable said he was dazed and confused and he could get little from him.
The Constable took a statement from Mr Vao the next day. He described one of his attackers as male, fair skinned like half Pakeha, half Tongan, short and skinny, about five foot with a gold tooth on the left side of his mouth, short hair and a grey t-shirt.
On 24 March 2011 the Police officer produced a photo montage for Mr Vao. That montage did not contain Mr Fukofuka’s photograph. Mr Vao did not identify his alleged attacker from that montage. Mr Vao then told the Police he believed that he knew one of his attackers who had attended a tertiary institute at the same time as him. As a result of that information a second photo montage was put together which contained Mr Fukofuka’s photograph. That montage was shown to Mr Vao on 7 April. He identified Mr Fukofuka as one of his attackers.
Identification procedure as soon as practicable (s 45(3)(a))
The first ground of appeal is whether in terms of s 45(3)(a) the formal identification procedure (here, the showing of the photo montage) was “as soon as practicable after the alleged offence was reported to an officer”.[4] The attack on Mr Vao occurred on 9 November 2010. The identification procedure was carried out on 7 April 2011, five months later. Mr Fukofuka’s case is that this five month gap meant Mr Vao was not shown the photographs as soon as practicable after the assault.
[4] Evidence Act, s 45(3)(a).
This Court in Malone v R discussed the meaning of “as soon as practicable”.[5] There, a photo montage was shown to a witness two months and five days after the alleged offending. This Court said that:[6]
Nevertheless, the scheme of s 45 proceeds on the assumption that there is a person identified as a suspect. In the absence of an identified suspect, there would, at least in most cases, be no photograph available for the purposes of a photo montage and no person available for an identity parade. The section is consistent in its use of the expression “visual identification evidence of a person alleged to have committed an offence” in s 45(1) and (2) and the expression “the person to be identified” in s 45(3). It follows that, although the period of time referred to in s 45(3)(a) runs from the date the alleged offence is reported to the police, the date at which the person is identified by name as a suspect will often be the first time at which it will be practically possible to carry out the formal procedure under s 45(3).
[5] Malone v R [2010] NZCA 59.
[6] At [13].
And further:
[17] In most cases, the focus of the s 43(3)(a) inquiry will be on the period between the time when a suspect is identified by name and the time when the formal identification procedure is undertaken. There may be exceptional cases where it is obvious that straightforward inquiries by the police could have revealed the name of the suspect earlier but, in general, the assessment of practicability under s 45(3)(a) should not require detailed examination of the steps taken by the police to identify a suspect by name.
[18] However, long delays by the police in the investigation phase may have a potential impact on the admissibility of identification evidence. Where there have been long delays between reporting an offence and the formal identification procedure, it will be easier for a defendant to prove, on the balance of probabilities under s 45(1), that the evidence is unreliable. The police therefore have an incentive to carry out their investigations into the alleged offence as quickly as possible.
[19] The expression “as soon as practicable” means that the formal procedure must be carried out as soon as it is feasible to do so in the circumstances. This involves issues of practicality and may involve consideration of available means and resources.
At the interview on the day after the offending, Mr Vao was only able to give a description of an offender. The Police did not have a name. Therefore the Police were not in a position to undertake any formal identification procedure. Some months later in March 2011 the first attempt was made by Police to identify the offender through a photo montage. That was unsuccessful but it was at that stage that Mr Vao first mentioned that he thought the offender had attended a tertiary education institute with him some time ago.
As a result the Police made relatively speedy enquiries. By 7 April they were able to show the victim a second photo montage. This montage contained a photo of Mr Fukofuka, along with seven others. Mr Vao identified Mr Fukofuka as one of his attackers.
There is nothing to suggest in this case that the Police unfairly or inappropriately delayed the investigation of this offending and thereby delayed the presentation of a photo montage to Mr Vao. Until Mr Vao explained that he believed he had attended a tertiary institute with Mr Fukofuka, the Police did not have the information from which to put together a meaningful montage. When Mr Vao gave them information relating to the possible identification of one of his attackers, the Police made speedy enquiries. It was only then they had a person identified as a suspect and only then was it practically possible to have an identification process.
Here, there was no delay in reporting the crime. There was no delay from inadequate Police investigation and when the Police did have some information to proceed on they moved quickly to arrange the photo montage.
We are satisfied, therefore, that the formal identification procedure was carried out as soon as it was feasible to do so in the particular circumstances and, therefore, as soon as practicable after the alleged offending.
We reject this ground of appeal.
Similarity in appearance (s 45(3)(b))
Section 45(3)(b) of the Evidence Act provides as follows:
45 Admissibility of visual identification evidence
...
(3)For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence—
...
(b)in which the person to be identified is compared to no fewer than 7 other persons who are similar in appearance to the person to be identified; and
...
In Ah Soon v R this Court discussed “similarity” in the context of s 45(3)(b):[7]
Whether the photographs show men of similar appearance to the appellant is a fact-dependent evaluative exercise. Whether the others shown in the montage are similar in appearance to the suspect is a question of degree. Similar does not mean identical. The police are not required to go to extraordinary or impractical lengths to ensure that those shown are similar in appearance. However, there may be cases where an accused person has particular identifying features which, unless the others shown in the montage have similar features, may lead to a witness unfairly picking out the accused. The guiding principle must be whether the photo montage or other formal procedure is such as to avoid any material risk of predisposing the witness to identify the accused.
[7] Ah Soon v R [2012] NZCA 48 at [23].
Mr Fukofuka submitted in the District Court that the photographs of seven other persons were not sufficiently similar to Mr Fukofuka to qualify in terms of s 45(3)(b). The trial Judge undertook an evaluative exercise. He determined that the photographs shown to Mr Vao were similar in appearance. We agree.
Mr Gardiner points to what he says are differences in the appearance of the eight men in the montage. He says: three have moustaches; some have items of clothing around their neck, others do not; there are a variety of skin tones; one has some skin damage; and some are looking directly at the camera and others to the side.
These are all subtle differences between the men. All in the montage are young Polynesian men with similar dark short hair. Some are clean shaven, others appear not to have shaved for a few days, two have obvious although small moustaches. Looked at overall, these are eight relatively similar looking young men. There is no suggestion that Mr Fukofuka has any particular characteristic which means he stands out from the other men (his height and the gold tooth are not apparent from the photos).
Mr Fukofuka has shown no error in the Judge’s approach or conclusion. This ground of appeal is dismissed.
Summing up on identification
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 section, therefore, requires the trial Judge, where the case against an accused depends on identification, to warn the jury of the three factors set out subs (2). Mr Lillico for the Crown accepted, as Mr Gardiner submitted, that the Judge did not tell the jury that a mistaken identification can result in a serious miscarriage of justice. He, therefore, failed to sum up in terms of s 126(2)(a).
The failure by the Judge was, as Mr Lillico properly conceded, an error of law. Section 126 is mandatory. The Judge was required to give the warning about mistaken identification and a serious miscarriage of justice along with the other s 126 warnings.
Mr Lillico submits, however in this case, that we can be satisfied no substantial miscarriage of justice has occurred.[8] He bases this submission on two points. Firstly, the direction by the Judge was substantially in accordance with s 126. The Judge gave very detailed instructions to the jury. Mr Lillico says he made it clear to the jury that identification was the central issue in the case and he stressed the care that they must bring to their consideration of Mr Vao’s identification evidence.
[8] Crimes Act 1961, s 385(1).
Secondly, Mr Lillico relied upon this Court’s discussion of the use of the proviso in identification cases in R vPeato,[9] R vHohepa[10] and R v Uasi.[11]
[9] R v Peato [2009] NZCA 333, [2010] 1 NZLR 788.
[10] R v Hohepa [2008] NZCA 316.
[11] R v Uasi [2009] NZCA 236, [2010] 1 NZLR 733.
We add that Mr Gardiner, who appeared at trial for Mr Fukofuka, did not at the conclusion of the summing up draw the Judge’s attention to this omission.
Discussion
The Judge, save for his failure to mention s 126(2)(a), gave a very detailed and comprehensive review of the evidence and relevant principles relating to identification in his summing up.
The Judge’s first remarks to the jury in his summing up, were:
Well there’s one word that sums up this case when it comes to the issues and that is identification. That is going to be the primary and probably the sole issue that you’re really going to have to consider, identification.
After detailing the elements of the two counts, the Judge spent the core of his summing up dealing with identification. His summing up on this aspect of the case occupies some four and a half pages of transcript. He said:
[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.
The Judge’s warning regarding the possibility that a mistaken witness may be convincing was not exactly in terms of s 126(2)(b). The introduction to subs (2) notes that the warning need not be in any particular words. We are satisfied that considered overall the Judge’s remarks at [22] and [23] would have conveyed the clear impression to the jury that a mistaken witness may be convincing.
The Judge then described the circumstances of Mr Vao’s identification focussing on the specific competing claims of the Crown and defence. At this stage the Judge then gave the established tripartite direction regarding Mr Fukofuka’s evidence. The Judge then reminded the jury that Mr Fukofuka’s counsel had stressed that even if they rejected Mr Fukofuka’s evidence as untrue, Mr Vao’s identification evidence was unreliable and the Judge summarised counsel’s submissions.
Finally, at the end of his summing up, the Judge again stressed that the burden of proving the correct identification of Mr Fukofuka was on the Crown to establish beyond reasonable doubt.
This Court in Peato, Hohepa and Uasi considered a similar failure by a trial Judge and whether it was appropriate to invoke the proviso. In Hohepa, this Court said:
[31] But for that omission the summing up on identification was appropriate. In fact it was commendably detailed and no doubt helpful to the jury for that reason. [Defence counsel] had no criticism to make of it other than the non-compliance with s 126(2)(a).
[32] The result of the Judge’s detailed approach is that the relevant points for and against the accuracy of the complainant’s identification of the appellant were all laid before the jury. That included the issues raised by the defence as to why the identification might have been made in error. There was also a warning of the special need for care in relation to the evidence. There is no reason to doubt that the jury would have adopted the careful approach that the Judge told them was required. Further, since identification was clearly put to them in the summing up as the central issue in the case, they would have appreciated the possibility of miscarriage arising from wrongful conviction.
[33] Given that the judge carefully put before jury all the relevant issues that they needed to consider in the course of their deliberations on the identification issue, there can be confidence that the jury would have properly weighed the strength of the relevant evidence. They must have accepted that the Crown had proved the identity of the assailant beyond reasonable doubt.
[34] In the circumstances of this case, we do not consider that there was a reasonable possibility of a not guilty verdict even if the Judge had given a direction in compliance with s 126(2)(a) of the Evidence Act. Accordingly, we are of the opinion that no substantial miscarriage of justice has occurred.
In Peato, similarly, the Judge failed to give the s 126(2)(a) warning. Such a warning was required notwithstanding Mr Peato’s admission that he was present at the scene of the alleged offending. The Court concluded that a failure to give a full warning was an error of law and in the circumstances of that case gave rise to a real risk of a miscarriage of justice. We note that there were other grounds on which the Court concluded the trial Judge was in error and it appears the Crown did not argue that this was a case where no substantial miscarriage of justice had occurred.
In Uasi, the Judge failed to give an identification warning in terms of s 126(2)(a). The Court said:
[39] Accordingly, we find that the lack of reference to avoiding a miscarriage of justice (or words to that effect) in the Judge’s direction on the identification evidence amounted to an error of law. Mr Uasi’s conviction must accordingly be set aside unless we consider it appropriate to apply the proviso to s 385(1) of the Crimes Act.
[40] We acknowledge that in all other respects the Judge’s summing up on identification was appropriate. It was fully detailed and the relevant points for and against the accuracy of the identification of Mr Uasi were covered for the jury. The Judge did warn the jury of the special need for caution in comprehensive and easily understood terms.
[41] Having said that, we note that the only identification evidence in the case came from Ms Cotterell. Mr Feleti’s evidence as to identification during the incident was in reality dependent for its probative force on Ms Cotterell’s evidence, analysed above, that it was Willie Uasi who used the pipe. Furthermore, there is other evidence which does not identify “Willie” as the assailant with the pipe, and which could be said to be in conflict with Ms Cotterell’s evidence that the assailant with the pipe was “Willie”. There is also evidence that “Willie” tried to ensure those at the party said nothing about what he did. Whilst that could be said to support Ms Cotterell’s evidence, we note that Mr Uasi admitted that he had been involved in kicking someone on the ground that evening. His attempts to threaten others, therefore, are also consistent with him attempting to dissuade those people from “narking” on him with respect to that assault.
[42] Given this analysis we think that the Crown case, relying as it does essentially on one eyewitness, is not such that we are satisfied that a conviction was inevitable. We therefore conclude it is not appropriate to rely on the proviso in this instance. Mr Uasi’s appeal against his conviction under s 188(1) of the Crimes Act for causing grievous bodily harm with intent to cause grievous bodily harm is allowed.
In this case, as in Hohepa, we are satisfied that no substantial miscarriage of justice occurred as a result of the Judge’s failure to give the appropriate warning under s 126(2)(a). We say that for these reasons. First, the Judge’s summing up on identification was comprehensive, other than the failure to mention the s 126(2)(a) point. The Judge gave a full direction on the law and on all of the relevant circumstances of Mr Vao’s identification, both from the Crown and defence perspective. He also linked the need to establish Mr Fukofuka’s identity beyond reasonable doubt to the tripartite test.
Secondly, Mr Vao’s identification of Mr Fukofuka was based in part on his recognition of Mr Fukofuka. Mr Vao at the March interview with the Constable was able to tell the officer that he believed his attacker was someone he knew from the tertiary institute. Mr Vao explained that he and the other young man had attended the institute and had played at music sessions together. While they did not know each other well, they had exchanged greetings from time to time. Mr Fukofuka in his evidence acknowledged the correctness of Mr Vao’s description of how they knew each other.
Thirdly, Mr Vao’s description of one of his attackers given the day after the assault was broadly similar to Mr Fukofuka’s appearance. Mr Vao said he believed his attacker was part Tongan, part European with lighter skin, about five foot high and with a gold tooth on the upper left of his mouth. Mr Fukofuka accepted in evidence that he had such a gold tooth and that the general description of him was accurate.
These three factors together satisfy us that once the jury had rejected Mr Fukofuka’s claim that he was not present at the scene, which they must have done to have convicted him, then the jury would inevitably have convicted Mr Fukofuka even if the appropriate s 126(2)(a) warning had been given. As a result no substantial miscarriage of justice has occurred arising from the Judge’s error in summing up.
The appeal against conviction will, therefore, be dismissed.
Appeal against sentence
The Judge at sentencing concluded Mr Fukofuka was one of the instigators of the violence. Beyond that proposition the Judge did not consider he could properly distinguish Mr Fukofuka’s actions from other offenders that day. The Judge said that given this was a serious street attack by between five and seven men with severe but not lasting injuries to Mr Vao, a starting point of four years and three months’ imprisonment was appropriate. He then uplifted that start sentence by three months for Mr Fukofuka’s past offending. The Judge then deducted 12 months or 20 per cent from that sentence to take into account Mr Fukofuka’s age and personal circumstances. He imposed a sentence of three and a half years’ imprisonment on the wounding charge and a concurrent 12 month sentence on the theft charge.
Mr Gardiner says the start sentence of four and a half years’ imprisonment was too high and should have been three and a half to four years’ imprisonment.
We are satisfied that the final sentence imposed was well within the range available to the Judge. The Judge appropriately placed the offending near the top of band one in R v Taueki.[12] There were multiple offenders who knocked Mr Vao to the ground. He was then defenceless. He was repetitively punched and kicked in the head and body. He suffered significant injuries.
[12] R v Taueki [2005] 3 NZLR 372 (CA).
While there may be debate about an uplift for Mr Fukofuka’s previous convictions (which are modest), the deduction for Mr Fukofuka’s personal circumstances was very generous. Further, an uplift in the start sentence could have been justified by reason of the fact that Mr Fukofuka was on bail for disorderly behaviour at the time of this offending. The appeal against the sentence of three and a half years’ imprisonment is, therefore, dismissed.
Theft charge
As we have noted Mr Fukofuka was also convicted of theft and a concurrent sentence of 12 months’ imprisonment was imposed. The indictment identified the theft offence as pursuant to s 223(d) of the Crimes Act 1961. That has a maximum penalty of three months’ imprisonment. It is able to be tried by jury by virtue of its inclusion in Part 1 of Schedule 1 of the Summary Proceedings Act 1957.[13]
[13] Summary Proceedings Amendment Act (No 2) 2010, s 4.
Given the Judge has imposed a prison sentence for theft which exceeds the statutory maximum we quash the sentence of 12 months’ imprisonment. Instead, we impose a sentence of three months’ imprisonment. This does not affect the end actual sentence imposed on Mr Fukofuka.
In summary
The appeal against sentence is dismissed except that the sentence of 12 months’ imprisonment imposed on the charge of theft is allowed. That sentence is quashed and we impose instead a concurrent sentence of three months’ imprisonment.
Solicitors:
Crown Law Office, Wellington for Respondent
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