Fukofuka v R

• Jurisdiction: New Zealand
• Judge: William Young J
• Judgment Date: 16 August 2013
• Neutral Citation: [2013] NZSC 77
• Docket Number: SC 95/2012
• Court: Supreme Court
• Date: 16 August 2013

Between

Kovinantie Vahafolua Fukofuka

Appellant

and

The Queen

Respondent

[2013] NZSC 77

Court:

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

SC 95/2012

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against conviction on charge of wounding with intent to cause grievous bodily harm and theft — conviction following trial by jury — case against appellant based solely on complainant's identification of him as one of his attackers — day after attack in which complainant lost consciousness he gave police a reasonably detailed description of one of his attackers but did not say that he recognised this person as someone he had previously met — on the day the complainant was shown first photo montage, four and a half months later he told police he had recognised one of his assailants as someone who had been on a particular course — police put together second photo montage from which complainant then identified appellant — Judge erred in way he directed jury as to identification and did not comply with requirements of s126 Evidence Act 2006 (judicial warnings about identification evidence) — whether such error was material.

Counsel:

D R F Gardiner for Appellant

D J Boldt and M J Lillico for Respondent

• A The appeal is allowed and the convictions are quashed..

• B A retrial is ordered..

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

JUDGMENT OF THE 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.

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

4 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.

5 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 this”. The complainant responded by saying that he did not know who had attacked him. He was, however, “very dazed and confused” and Constable Williams could get little from him before he was taken to hospital.

6 A police officer took a statement from the complainant the next day. In this statement, the complainant 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”. 5 He did not say that he recognised this person as someone he had previously met

7 On 24 March 2011, Detective Constable Tane Walters produced a photo montage for the complainant. This did not include a photograph of the appellant and the complainant said that he was not able to identify anyone. Detective Constable Walters subsequently put together a second photo montage which contained the appellant's photograph. This was shown to the complainant on 7 April and he identified the appellant as one of the offenders. Evidence to this effect was all that the jury had as to the background to the 7 April identification. From evidence given in the absence of the jury, we know that on 24 March, the complainant told Detective Constable Walters that he had recognised one of his assailants as someone who had been at Te Wananga o Aotearoa on a particular course. It was this information which enabled the police to put together the second photo montage which contained a photograph of the appellant. It is surprising that this evidence was not before the jury as it was of contextual significance in relation to the reliability of the identification. 6

8 In terms of the description given by the complainant on 10 November 2010, the appellant is of Tongan ethnicity (although not particularly pale) and short (around five foot three or four inches, distinctly shorter than the complainant, but taller than five feet) and has a gold tooth (but on the right side of his mouth and not his left). His stature and gold tooth were not apparent from his photograph in the second photo montage.

9 In his evidence at trial, the complainant said that he recognised one of the people in the cars as they drove past as being someone who had been at the Wananga in 2009 at a time when he (the complainant) was also there. Although they were doing different courses, the complainant sometimes saw the appellant at the school at “jamming sessions”. 7 He said that this person was one of his attackers. The

complainant also said that the next thing he could recall after being knocked unconscious was waking up in hospital. He thus had no recollection of his discussion at the scene with Constable Williams. He was also not able to recall the 10 November 2010 discussion he had with a police officer but did not dispute the contents of the statement when it was put to him

10 The appellant gave evidence. He accepted that he had attended the Wananga in 2009 at the same time as the complainant. He also accepted that he had seen the complainant at the jamming sessions. He said, however, that there was another person present at those sessions who was also Tongan and had a gold tooth. He denied any involvement in the offending and said that he had been with his partner. She also gave evidence in support of this alibi.

The evidence as to when the complainant told the police that he had recognised one of his attackers and the absence of evidence as to the reasons for the delay

11 Given the complainant's state of consciousness and general condition when spoken to immediately after the assault, his negative response to the question whether he knew “who did this” is probably of little moment. But of potentially more significance is that the following day, when able to give a reasonably detailed description of one of the offenders, he did not tell the police officer that he had recognised this person.

12 Counsel for the appellant did not cross-examine the complainant as to the extent of his delay in telling the police that he had recognised one of his attackers. Nor did counsel press the complainant as to the reasons for such delay. So the jury were not told when the complainant first informed the police that he had recognised one of his attackers and the reasons for the delay, if any, were not explored in evidence.

Summing up on identification

13 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 case against the appellant depended “wholly or substantially on the correctness of” the complainant's identification of him as one of the offenders. So s 126 was plainly engaged.

14 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...