By Catrin Owen, Stuff
A man who shot two people outside a south Auckland nightclub has failed in a bid to have his conviction and sentence quashed, after one of the victims identified him on YouTube.
Kovinantie Fukofuka shot two men outside a local nightclub in May 2017and was found guilty of two counts of wounding with intent to cause grievous bodily harm.
The victims, Valu Kolofale and Manase Lasike, did not know Fukofuka, but a few days after the shooting police undertook a formal identification procedure using a photo montage.
Kolofale picked out the defendant as the man who had shot him.
However, Kolofale had already been referred to a YouTube clip featuring local rap artists, by the DJ at the club, and immediately recognised one of them as the gunman.
At trial, Fukofuka objected to the admission of Kolofale’s formal identification saying it was “tainted” after he’d already viewed the YouTube video.
The trial judge, Judge John Bergseng, ruled the evidence admissible and Fukofuka was found guilty by a jury and sentenced to eight years and four months imprisonment with a minimum period of imprisonment of three years and four months.
At a Court of Appeal hearing in June in front of Justice Brendan Brown, Justice Christian Whata and Justice Simon Moore, Fukofuka appealed his sentence and conviction.
Maria Pecotic acting on behalf of Fukofuka, said Kolofale’s identification was unreliable as had he been certain of his identification he would not have viewed the video, otherwise he would have advised police earlier.
She told the Court of Appeal the evidence should have been excluded.
The Court of Appeal judges agreed with the Crown, that Kolofale was clear he had recognised Fukofuka from the night of the offending, rather than from the YouTube video.
Two other witnesses independently identified Fukofuka as the gunman and Pecotic did not suggest that either of these was mistaken, the judgment said.
The Court of Appeal judges were satisfied Judge Bergseng approached his task correctly, although he did not view the footage.
“This would have been the preferable course. Viewing the footage would have enabled a full evaluation of any potential contamination of Mr Kolofale’s identification.
“Despite this oversight, it is plain to us that justice did not miscarry.”
The Court of Appeal judges viewed the clip and were satisfied that Judge Bergseng’s analysis of reliability remained sound.
In May 2017, Fukofuka had been at a Manukau nightclub with friends before leaving with a friend who had been asked to leave.
Outside the club, Fukofuka became involved in a number of “physical skirmishes” with Lasike and Kolofale.
Part of what happened outside the nightclub was captured on CCTV and showed Fukofuka being punched in the head before falling to the ground and being hit again.
Fukofuka then got to his feet and disappeared, 26 seconds later he returned, armed with a .22 firearm, firing shots.
Lasike was shot through the right knee and Kolofale through the right thigh.
Twelve days after the shooting, a police detective took a statement from Kolofale and showed him a photo montage where he picked out Fukofuka.
At the time, police did not know Kolofale had been contacted by the DJ at the nightclub who suggested he watched a video titled “Erase threes nation“.
Kolofale said he had a clear picture of the person in his mind and was told by the DJ to look at the lead singer, the judgment said.
The music video featured men rapping and one of the rappers was Fukofuka, who Kolofale immediately recognised as his shooter.
Kolofale only told police about seeing the YouTube video in April 2018, three days ahead of the trial.
The district court judge acknowledged there had “clearly been a degree of contamination” which clearly would have influenced Kolofale’s formal identification fo the defendant.
However, the judge identified other aspects of Kolofale’s identification which supported its reliability including that Kolofale was captured on CCTV fighting four times with the defendant in areas which were reasonably well lit and his eyesight was good.
Kolofale remained unshaken in his identification despite viewing the clip.
The Court of Appeal judges dismissed the appeal for Fukofuka’s conviction and sentence.
However, they quashed the minimum term of imprisonment.