Fukofuka v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeWilliam Young J
Judgment Date16 August 2013
Neutral Citation[2013] NZSC 77
Docket NumberSC 95/2012
Date16 August 2013

[2013] NZSC 77



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

SC 95/2012

Kovinantie Vahafolua Fukofuka
The Queen

D R F Gardiner for Appellant

D J Boldt and M J Lillico for Respondent

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.

The issue was whether the Judge's error was material.

Held: The current legislative scheme in relation to identification evidence had its origins in the English Court of Appeal case R v Turnbull. The reason warnings as to identification evidence were needed was because the reality was that miscarriages of justice from mistaken identifications had been known to occur.

An explanation of the “reason for the need for such a warning” was a discrete requirement which was not satisfied simply by reference to the reality “that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken”. The Court in Turnbull envisaged that the summing up on the strengths and weaknesses of the identification evidence would primarily be the Judge's own work and would not just be by way of paraphrase of the addresses of counsel. Also clear was that the caution which was necessary extended to evidence of recognition.

The approach taken in Turnbull was legislatively adopted in NZ in the form of s344D Crimes Act 1961 (jury to be warned where principal evidence relates to identification) and then carried through with minimal change in s126 EA. There was no reason why NZ judges should adopt a lesser standard than that insisted on in Turnbull. The idea that breaches of s126(2)(a) EA did not matter was not congruent with the mandatory language of the section. There was nothing novel in the view that trial judges should tell juries that the risk of a serious miscarriage of justice resulting from mistaken identification evidence was not just theoretical but had occurred in actual cases (see Uasi v R).

What the Judge said in his summing up fell short of what was required by s126(2) EA in two respects:

  • (a) the Judge did not tell the jury that a mistaken identification could result in a serious miscarriage of justice (s126(2)(a)); and

  • (b) he did not direct the jury that a mistaken witness could be convincing (s126(2)(b)).

The Judge then asked the question “When it comes to identification, what is before you here?” which he answered by reference to what counsel had said and in a disjointed way rather than using his own analysis of the identification and its strengths and weaknesses. There was an absence of evidence as to when the complainant first told the police that he recognised one of his assailants, which appeared to have been after he was presented with the first photo montage.

What the Judge in this case said as to identification did not, in substance, satisfy the requirements of s126(2)(b) EA. The Judge's direction that an honest witness could be mistaken did not direct the minds of the jurors to the reality, established by actual cases, that witnesses might be mistaken even though their evidence was convincing. It followed that the Judge failed to comply with the mandatory requirements of s126(2) EA in two respects. There was a failure of the Judge to do what was required whenever identification was in issue. There was, in particular, a failure to inject into his summing up the appropriate and statutorily required level of scepticism as to identification evidence.

Given this failure and, as well, in the context of a Crown case which was based solely on the identification evidence, the error by the Judge could not be dismissed as immaterial. The importance of trial judges complying with the mandatory requirements of s126 EA and its underlying policies needed to be emphasised.

Appeal allowed. Convictions quashed and retrial ordered.

  • 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..


(Given by William Young J)


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.


The appellant's subsequent appeal to the Court of Appeal was dismissed. 2


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

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.


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.


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.

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


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.


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.

The appellant gave evidence. He accepted that he had attended the Wananga in 2009 at the same time as the...

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1 cases
  • Dey v R
    • New Zealand
    • Court of Appeal
    • 28 July 2021
    ...procedure”. 7 Evidence Act, s 45(4). 8 Adams on Criminal Law (online ed, Westlaw) at EA45.13(6). 9 Ake v R [2015] NZCA 334 at [10]. 10 Fukofuka v R [2013] NZSC 77, [2014] 1 NZLR 1 at [38] and [40]. 11 R v Mako [2000] 2 NZLR 170 (CA). 12 R v Patrick [2008] NZCA 115. 13 Stratton-Pineaha v R ......

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