A man who shot two people outside a South Auckland nightclub has lost his bid for a retrial after claiming he was unfairly recognised as the shooter through a rap music video.
Kovinantie Fukofuka was charged with two counts of wounding with intent to cause grievous bodily harm after he shot two men outside a nightclub in May 2017.
Armed with a .22 firearm, Fukofuka shot Manase Lasike through the right knee and Valu Kolofale in the right thigh.
A few days after the shooting, police conducted a formal identification procedure using a photographic montage.
One of the victims, Kolofale, picked out Fukofuka as the man who had shot him.
However, unbeknown to the police, Kolofale had earlier been told to search "Erase threes nation" on YouTube by the DJ at the club.
It was a rap music video from mid-2016 and Kolofale immediately recognised the gunman in the clip - it was Fukofuka.
Kolofale told the police about seeing the YouTube video just three days before the start of the trial in April last year.
At the trial in the Manukau District Court, Fukofuka then objected to the admission of Kolofale's identification and argued it was tainted due to Kolofale's viewing of the rap video.
But Judge John Bergseng ruled the evidence admissible and the jury convicted Fukofuka on both charges before he was later sentenced to eight years and four months' imprisonment with a minimum period of imprisonment (MPI) of three years and four months.
The judge had also relied on other evidence which supported Kolofale's identification.
CCTV footage showed Kolofale fighting someone with tattoos on both arms, the same person who came back to shoot him.
While the detail of the tattoos could not be seen, they were consistent in size and placement with Fukofuka's own tattoos.
Fukofuka, who admitted to being at the nightclub and getting into a fight, was also wearing similar clothes as the gunman in the footage.
Lasike and his partner also identified Fukofuka as the gunman, while after Fukofuka's arrest he also acknowledged having some connection to the firearm and offered to hand it over to police.
Last month Fukofuka challenged his convictions in the Court of Appeal.
Today, however, Justice Brendan Brown, Justice Christian Whata and Justice Simon Moore dismissed the appeal.
"We are satisfied [Judge Bergseng] approached his task correctly, save for one observation," they said in their decision.
"It does not appear that the judge actually viewed the YouTube footage before making his decision. 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 three Court of Appeal judges viewed the rap video and were "satisfied that the judge's analysis of reliability remains sound".
The Court of Appeal did, however, quash Fukofuka's MPI for his prison term, meaning he will now be eligible for parole after serving one third of his sentence.