Fukofuka v R - [2012] NZCA 510

IN THE COURT OF APPEAL OF NEW ZEALAND

CA216/2012
[2012] NZCA 510

BETWEEN KOVINANTIE VAHAFOLUA FUKOFUKA
Appellant

AND THE QUEEN
Respondent

Hearing: 30 October 2012

Court: Harrison, Chisholm and Ronald Young JJ

Counsel: D R F Gardiner for Appellant
M J Lillico for Respondent

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…

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 [2012] NZCA 510
Case: [2012] NZCA 510
Decision Date: 6 November 2012

CaseChat Overview and Summary

The case of Fukofuka v R involved a criminal trial where the primary issue was the identification of the defendant by a witness. The defendant, Fukofuka, was tried for offences under the Crimes Act 1961 and the case hinged significantly on the identification evidence provided by a witness named Vao. The High Court of Australia was tasked with reviewing the trial judge's handling of the identification evidence, particularly in the context of the statutory requirement to warn the jury about the risks of mistaken identification under section 126 of the Evidence Act. The Court was required to determine whether the trial judge's failure to adequately warn the jury about the possibility of a serious miscarriage of justice due to mistaken identification constituted a substantial miscarriage of justice.

The legal issue before the Court was whether the trial judge's omission to warn the jury about the serious consequences of a mistaken identification, as required by section 126(2)(a) of the Evidence Act, necessitated a retrial. The Crown accepted that the judge's failure to include this specific warning was an error of law, as section 126 is mandatory and requires the judge to warn the jury of the need for caution in relying on identification evidence. The Court considered whether this error was sufficiently material to warrant a new trial or if it could be concluded that no substantial miscarriage of justice had occurred, despite the procedural error. The Court reviewed the detailed and comprehensive summing up by the trial judge, which extensively covered the identification evidence and the principles of identification, to assess the impact of the omission on the trial's outcome.

In determining the outcome, the Court noted that while the trial judge failed to mention the serious consequences of a mistaken identification, he did provide very detailed instructions to the jury about the need for caution in relying on identification evidence. The Court acknowledged that the judge's summing up was substantially in accordance with section 126 and highlighted the importance of identification in the case. The Court further considered the Crown's argument, supported by previous cases such as R v Peato, R v Hohepa, and R v Uasi, which discussed the use of the proviso in identification cases. Given that the trial judge provided a comprehensive review of the evidence and the principles relating to identification, and considering that no substantial miscarriage of justice was demonstrated, the Court concluded that the error did not necessitate a retrial.

Ultimately, the Court decided that the error in the summing up did not result in a substantial miscarriage of justice. Consequently, the convictions were upheld, and the defendant's appeal was dismissed. The Court emphasised the importance of compliance with statutory requirements regarding judicial warnings in identification cases, but found that in this instance, the error did not materially affect the trial's fairness or outcome.

Orders

Orders of the court

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Background

Background to the litigation

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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 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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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