Fa'alogo v The King

[2025] NZHC 3099

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-419

[2025] NZHC 3099

BETWEEN

MORMON FA’ALOGO

Appellant

AND

THE KING

Respondent

Hearing:

14 October 2025

Appearances:

J A Kincade KC for Appellant

R van Boheemen for Respondent

Judgment:

17 October 2025

JUDGMENT OF GARDINER J

[Appeal against conviction]

This judgment was delivered by me on 17 October 2025 at 11.00 am Registrar/Deputy Registrar

Solicitors:

J A Kincade KC, Barrister, Auckland MC, Auckland

FA’ALOGO v R [2025] NZHC 3099 [17 October 2025]

[1]    Mormon Fa’alogo appeals his conviction of wounding with intent to cause grievous bodily harm, following a Judge-alone trial in the District Court before Judge N Mathers in May  2024.1  Mr  Fa’alogo  was  sentenced  to  six  years  and two months’ imprisonment on 29 May 2025.

[2]The Crown opposes the appeal.

[3]    Mr Fa’alogo requires leave to file his appeal out of time. The delay has been due to the unavailability of counsel and the time to take instructions. The Crown does not oppose leave being given. I grant leave.

The offending

[4]    The Crown alleged that, over 17 and 18 May 2023, Mr Fa’alogo brutally assaulted his partner after he had seen text messages between her and her previous partner, which suggested an ongoing sexual relationship between them.

[5]    As a result of the assault, the victim suffered injuries including swelling and bruising around both eyes, a fracture to the bone around the right eye, right facial bone fracture, a rib fracture, air in the chest cavity between the lung and chest wall and lacerations across three fingers in her right hand. When the victim arrived at the hospital, she required a wheelchair.

[6]    Mr  Fa’alogo  was  arrested  upon  delivering  the  victim  to  the  hospital.  Mr Fa’alogo was wearing an EM tracker at the time and the arresting officer noticed blood on the tracker. Mr Fa’alogo was also assessed by a doctor while in custody, who noted that he had dried blood on his left forearm and mild to moderate bruising on his right-hand knuckles and swelling in his left hand.

Decision on appeal

[7]    The Judge referred to the background of the offending and then summarised the Crown case as follows. A detective attended at the hospital and took the victim’s keys to the address where the offending occurred. He noted that the house was messy

1      R v Fa’alogo [2024] NZDC 12074.

and chaotic, with items strewn around and blood on the surfaces, particularly in the bedroom. The detective also noted tufts of dark hair on the floor. In cross-examination, the detective agreed that he could not rule out that this was the scene of a home invasion but noted that what was uncharacteristic was hair being pulled or cut out.

[8]    The Judge also noted the police’s findings on the former partner’s phone which included various text messages and  a video sent  from  the victim’s  phone which  Mr Fa’alogo accepted he had sent. The video showed the victim stumbling around with severely swollen eyes, cheeks and mouth with blood running down her face. In that video, Mr Fa’alogo said:

Ah, ey brother, this is a fucken message to you bro. You wanna keep meeting/beating up on my fucken girl ao? Look at her brother imagine what’s gonna happen to you cocksucker I know who you are.

[9]    The police found three text messages which Mr Fa’alogo accepts he sent from the victim’s phone to the former partner saying “pick up the phone faggot”, “I got your picture cunt” and “I know what you look like cocksucker”.

[10]   Further, the police downloaded two voice messages via Facebook, again sent by Mr Fa’alogo to the victim’s ex-partner, in which he said:

Look here cocksucker, I’ll fucken call you out fucken sleeping with my girl I don’t give a fuck about your guy’s history brother. You fucken crossed a line, now its fucken, it’s time for me to show you what fucken, what happens. You think it’s a fucken game lad sleeping around with someone’s fucken missus. Fuck you! watch wot happens cocksucker.

[11]   Shortly after sending these messages, Mr Fa’alogo rang emergency services to tell police the victim had been assaulted and asking for an ambulance. In the call for the ambulance, he falsely stated he was the victim’s brother and that she had been badly beaten in a fight on a drunken night out.  The ambulance did not arrive and   Mr Fa’alogo took the victim to the hospital.

[12]   Mr Fa’alogo then called the EM Bail team seeking approval for an absence. He told the operator that he had a “bad head knock, shortage of breath, in and out of

consciousness, and I’m on the way to the hospital”. He said his partner was driving him.

[13]   The defence case was that the victim was assaulted by three unidentified home invaders. Mr Fa’alogo’s version of events is that he was asleep in another room from the victim (him in the lounge while she was in the bedroom) when he was woken up by the sound of her screaming. He then said he was met with three men wearing balaclavas in his home. Mr Fa’alogo tried to fight them, but he eventually acquiesced to “chauffeuring” the men around the house to search for money and drugs. He said that while he was doing this, he saw the victim lying motionless on the couch with blood everywhere. After the intruders left, he tended to her.

[14]   When asked why he had lied to emergency services about the source of the victim’s injuries, he explained that if he had said it was from a home invasion and it led to an arrest, “they may have people that will come visit me next” and “[he’ll] be on a bracelet then too”.

[15]   He admitted that he sent the messages to the victim’s ex-partner but maintained that he did not assault the victim, but rather her injuries were from the home invasion. He said that he went to use her phone to call 111 as she went to take a shower, but he discovered the messages and was then “sidetracked”.

[16]   The victim also gave evidence in support of Mr Fa’alogo. She said they both had been drinking that night before coming back to their home. She had fallen asleep in the lounge while Mr Fa’alogo was in the bedroom. She was then woken by three men standing over her. She said she remembered being struck and going in and out of consciousness. The next thing she could recall was being in the hospital with her family standing over her.

[17]   The victim could not give any details about the three men. She said that she did give Mr Fa’alogo her phone to use to call 111 while she was in the shower and that he did so. When asked about the messages sent by Mr Fa’alogo on her phone, she said she may have sent them herself. The victim maintained that Mr Fa’alogo did not assault her.

[18]   The Judge noted that, on 1 July 2023, the victim was liaising with the detective about her victim impact statement and arranging a time to complete her evidential video interview. However, on 17 July 2023, the victim texted the detective that she no longer wished to participate in the investigation and disavowed any statements she made in her victim impact statement as she was “highly medicated in hospital and therefore not in the right mind”. She also refused to give evidence for the Crown.

[19]   The Judge recorded that she was in a situation where the victim refused to give evidence for the Crown and had instead given evidence for the defence. The former partner had refused to give evidence for the Crown and retracted his original statement. Mr Fa’alogo gave evidence for himself.

[20]   The Crown case comprised the hearsay statements and text messages between the former partner and the victim, Mr Fa’alogo and the former partner, and the video and voice messages from Mr Fa’alogo and the former partner. The Crown also led the evidence of the police officer who received the phone from the former partner and other police officers.

[21]The Judge dismissed the defence case:

Quite frankly and for the reasons which follow I simply do not believe the evidence of Mr Faalogo or [the victim]. I can accept the various lies told by Mr Faalogo to the 111 operator and the EM bail team and of course I take into account that people tell lies for different reasons. I remind myself that just because Mr Faalogo has lied that does not mean he is necessarily guilty. It is one piece of circumstantial evidence to consider in deciding if the prosecution has proved its case beyond reasonable doubt.

However, having been the trial Judge and having listened carefully to the evidence of Mr Faalogo I simply do not believe the version that he has put forward as to the home invasion. It is simply not plausible.

[22]The Judge reached this view on a number of reasons:

(a)First, Mr Fa’alogo claimed that he could not describe the home invaders because in his world (meaning being a gang member) he could not and will not “nark” on these people. The Judge saw this as “a nonsense” because he did not give information which could in any sense be considered a nark.

(b)The next reason is that, despite some explanation that he fought with one of the home invaders, he as a gang member simply said that he was chauffeured around the house looking for, and then giving, drugs and money.

(c)The Judge also considered it was not plausible that the home invaders would choose to badly beat the victim where Mr Fa’alogo suffered no harm.

(d)The Judge also took the view that Mr Fa’alogo was enraged by the text messages he found, including a suggestion the victim was having sex with  her  ex-partner.  The  Judge  considered   it  quite  clear  that   Mr Fa’alogo was very angry and threatening when listening to the video and voice messages. The Judge considered Mr Fa’alogo’s explanation that he was  not  terribly  upset  or  angry  implausible.  Mr Fa’alogo proceeded to film the victim despite her very severe injuries. Despite attempts to recant his evidence by saying he was too drunk to know what he was saying to the police officer, the victim’s ex-partner was so concerned for her that he called 111 for help.

(e)Another reason is that both Mr Fa’alogo and the victim mentioned her having a shower. This could not be because she required wheelchair assistance when she arrived at the hospital. It was also apparent from the medical report and video of her injuries that she would not have been able to stand up. She could also be heard in the background of the 111 call.

(f)The Judge lso did not believe that the victim would have sent the threatening messages to her ex-partner.

(g)Also, the Judge took into account police evidence that hair being pulled out or cut out was uncharacteristic of a home invasion.

[23]   Taking all these factors together, the Judge considered the Crown case had been made out beyond reasonable doubt. Mr Fa’alogo had concocted the story of the home invasion. The victim understandably supported his version of events, as playing her part in trying to save her former partner. Mr Fa’alogo was found guilty of the charge.

Approach on appeal

[24]   Appeals against conviction proceed under s 232 of the Criminal Procedure Act 2011. The court must allow the appeal if the Judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any reason.

[25]   A miscarriage of justice means an error, irregularity, or occurrence in or in relation to or affecting the trial that:

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

[26]   Appeals against conviction proceed by way of rehearing. If an appellate court comes to a different view on the evidence, the trial Judge will have erred, and the appeal must be allowed. It is for the appellant to show that an error has occurred.

The case for Mr Fa’alogo

[27]   Mr Fa’alogo challenges the Judge’s finding of guilt on the basis the Judge incorrectly assessed the evidence such that a miscarriage of justice has occurred.

[28]   Ms Kincade KC submits that the Judge was wrong to disbelieve the evidence of the two people that were present at the time of the offending. Ms Kincade accepts that there is an established line of authority wherein appellate courts have expressed caution in disturbing a trial Judge’s credibility findings.2 However, in circumstances where there was no eyewitness to corroborate the Crown’s narrative accepted by the Court, it is appropriate to place the Judge’s findings under scrutiny.

2      Sena v R [2019] NZSC 55, [2019] 1 NZLR 575 at [38]–[40].

[29]   Ms Kincade KC submits that the Crown brought insufficient evidence to rebut Mr Fa’alogo and the victim’s combined and consistent accounts.

[30]   Ms Kincade responds to each of the Judge’s reasons for rejecting the defence case:

(a)Mr Fa’alogo’s background as a gang member means speaking truthfully to police is prohibited, which explains why he gave an untrue account of the events.

(b)Regarding Mr Fa’alogo’s statement he that “chauffeured” the intruders around his home, it is not implausible that he would act in this way when he and his partner were under violent threat.

(c)There is an explanation for why Mr Fa’alogo was unharmed, while the victim suffered extensive injuries: he was asleep when the victim was attacked, and he tried to fight the intruders but quickly realised force was useless.

(d)Regarding the video, voice and text messages, Mr Fa’alogo conceded that he was upset with the former partner and that the messages were to get an explanation.

(e)There was no physical evidence to support the Judge rejecting the evidence of the victim taking a shower. It could have been that her injuries worsened over time, meaning she was able to stand and have a shower before becoming too unwell to walk.

(f)The Judge relied on what appeared to be opinion evidence from the detective about the likelihood of the victim’s hair being pulled out in a home invasion. That evidence was plainly inadmissible as there was no qualification for the question or foundation for the opinion.

[31]   Accordingly, Ms Kincade submits that the defence evidence ought to have been relied upon as truthful, despite its deficiencies.

The case for the Crown

[32]   Ms van Boheemen observes that the Judge’s reasoning for rejecting the defence narrative can be grouped as follows:

(a)There was a motive for Mr Fa’alogo to assault the victim, corroborated by him sounding very angry in the videos, texts and audio messages.

(b)The general implausibility of aspects of the defence version of events.

(c)Opinion evidence from a police officer that hair on the ground was uncharacteristic for a home invasion.

[33]   To the first point, Ms van Boheemen submits that not only do the messages demonstrate Mr Fa’alogo’s fury but there is also an available inference that he admitted to assaulting the victim when he said:

Ah ey brother, this is a fucken message to you bro. You wanna keep meeting/beating up on my fucken girl ao? Look at her brother imagine what’s gonna happen to you cocksucker I know who you are.

now its fucken, it’s time for me to show you what fucken, what happens. You think it’s a fucken game lad sleeping around with someone’s fucken missues. Fuck you! watch wot happens cocksucker”.

(emphasis added)

[34]   The evidence of motive, together with the video, text and audio messages, casts sufficient doubt on the defence version of events.

[35]   Also, it was open to the Judge to find it was not realistic that Mr Fa’alogo, having found his partner in a severely injured state after the home invasion, would become side-tracked by the messages on her phone and take the time to video her and message abuse to the former partner before calling an ambulance.

[36]   As to the implausibility of specific aspects of the defence, Ms van Boheemen points out that the “nark” evidence referred to first came up in Mr Fa’alogo’s evidence-in-chief. The Judge was entitled to put that aside considering other evidence pointing to Mr Fa’alogo being the offender. Further, neither Mr Fa’alogo nor the

victim were able to provide any information at all about the three home invaders nor what they said.

[37]   The Judge also dismissed the evidence on the shower on the basis of persuasive evidence, including the video taken of the victim in her injured state as well as the fact that she could be heard while Mr Fa’alogo was on the phone.

[38]   The victim’s credibility is further challenged by her explanation that she could have been the one to send the messages to her ex-partner. This demonstrates that she has been untruthful, but also  that she has  done  so for  the purpose of  protecting  Mr Fa’alogo.

[39]   The Judge was also entitled to find that Mr Fa’alogo’s evidence of “chauffeuring” the invaders around and not being assaulted himself implausible. It is implausible that he would not have seen the assault, given the small size of the apartment and that he was “chauffeuring” the men around.

[40]   Ms van Boheemen also addresses the submission on the detective’s opinion evidence. This came out in cross-examination and was supported by the detective’s experience of attending  home invasions.   In any event, even putting this aside,     the Judge was entitled to rely on evidence of the victim’s hair being cut out as a piece of circumstantial evidence proving Mr Fa’alogo was the offender. Ms van Boheemen submits this was demonstrative of a jealous person, trying to make their partner appear unattractive.

Discussion

[41]   I consider that the Judge was correct to set aside the evidence of the defence witnesses as lacking in credibility. The account of events by Mr Fa’alogo and by the victim is patently implausible.

[42]   The Judge described eight specific reasons for why she found the defence case implausible. For my part, I find it unbelievable that the alleged home invaders severely  beat  the  victim  while  leaving   Mr   Fa’alogo   relatively   unscathed.   Mr Fa’alogo’s assertion that he was not upset by the message he saw on the victim’s

phone also defies belief — it is obvious from the content of his subsequent text messages and voice mails to the ex-partner that he was wildly enraged.

[43] Moreover, Mr Fa’alogo’s claim that he became distracted with what he found on the victim’s phone after discovering the victim severely beaten does not explain why he then proceeded to film her with her severe injuries. Nor does it explain why he proceeded to send the film to the former partner with the accompanying threatening message set out at [33].

[44]   Overall, Mr Fa’alogo’s narrative is obviously untrue, and the Judge was right to place no reliance on it.

[45]   The victim’s account of what happened also cannot be believed, given her evidence that she sent the threatening messages to her ex-partner is plainly untrue. She is obviously trying to protect her partner from the consequences of his actions.

[46]   With that evidence put to one side, the circumstantial evidence was sufficient to discharge the onus on the Crown. Mr Fa’alogo was the only other person at the house when the assault happened. He had a motive for assaulting the victim, having discovered the message from the ex-partner on her phone revealing that they were still seeing each other.   It is obvious from the videos, texts, and audio messages that     Mr Fa’alogo then sent to the ex-partner that he was enraged about the ex-partner “sleeping with [his] missus”. There is no other plausible explanation for Mr Fa’alogo taking a video of the severely beaten victim and sending it to the former partner, with the message set out at [33], than that he was the perpetrator of the assault, and he was threatening to do the same to the ex-partner. Then there is the fact that Mr Fa’alogo had bruised knuckles, consistent with having beaten someone.

[47]   Arguably, the detective’s evidence about pulled out or cut hair being uncharacteristic of a home invasion is admissible as he has relevant expertise of home invasions. Even if his evidence is put to one side, self-evidently, the pulling out or cutting of the victim’s hair is more consistent with domestic violence than an attack by invaders looking for drugs and money.

[48]   I find that there is no other credible explanation for what happened than that it was Mr Fa’alogo who severely beat the victim during the night of 17 and 18 May 2023.

[49]   The Judge did not err in her assessment of the evidence. There was no miscarriage of justice.

Result

[50]The appeal is dismissed.

Gardiner J