Falamoe v The King - [2025] NZSC 135

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IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 58/2025
[2025] NZSC 135

BETWEEN	DAVID ALLEN FALAMOE Applicant
AND	THE KING Respondent

Court:	Williams, Kós and Miller JJ
Counsel:	N P Bourke for Applicant K B Bell and B So for Respondent
Judgment:	9 October 2025

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant, David Falamoe, was convicted of a range of violent and sexual offences following trial. He seeks leave to appeal a decision of the Court of Appeal upholding his conviction on one charge, namely sexual conduct with a child under 12 in breach of s 132(3) of the Crimes Act 1961.[1]

Facts

[1]Falamoe v R [2025] NZCA 168 (Katz, Dunningham and Powell JJ) [CA judgment].

After a party and in circumstances to be described, the applicant got into the bed of TG, a nine-year-old girl. She was asleep at the time, and remained asleep throughout the entire incident. The applicant saw the girl earlier in the evening and, according to the evidence, suggested to others at the party that she “needed a good fingering”. The following morning, TG came into the lounge where the applicant and his partner had slept. His partner told TG to leave. The applicant claimed to have an erection and was not wearing underwear. He too wanted TG to leave the room because he needed to go to the toilet. TG went back to her room and apparently fell asleep. The applicant put on his boxer shorts and went to the toilet. According to the Court of Appeal:[2]
The next thing [the applicant’s partner] heard was TG’s mother yelling to her “look, he’s in fucking bed with my daughter”. [The applicant’s partner] went into her bedroom, and Mr Falamoe was lying in bed next to TG, who was uncovered. [The applicant’s partner] told him [to] get out immediately. She said that Mr Falamoe was near the end of the bed facing her and TG was right behind him in the middle of the bed. TG’s eyes were closed, and she did not wake up. [The applicant’s partner] said when she told Mr Falamoe to get out of bed he said, “I didn’t see her”.
[2]At [12].
The evidence of TG’s mother was that the applicant had been facing towards TG in the bed but, when she (the mother) yelled out, he turned away from TG and towards her.[3] No one suggested the applicant actually touched TG.

The offence and issues arising

[3]At [13].

Under s 132(3) of the Crimes Act, doing an indecent act on a child is an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Falamoe v The King

Details

AGLC: Falamoe v The King [2025] NZSC 135
Case: [2025] NZSC 135
Decision Date: 9 October 2025

CaseChat Overview and Summary

In the case of Falamoe v The King, David Allen Falamoe sought leave to appeal against his conviction for sexual conduct with a child under 12 years of age, in breach of section 132(3) of the Crimes Act 1961. Falamoe was found guilty of entering into bed with a nine-year-old girl who was asleep, an incident that occurred during a party. The Court of Appeal upheld his conviction, and Falamoe now appeals to the Supreme Court seeking leave to challenge that decision. The central legal issues revolve around the interpretation of "indecent act" and "with or on" as defined in section 132(3) of the Crimes Act. These issues were previously addressed by the Court in Y v R and Rowe v R. The Court of Appeal had concluded that the act of an adult male getting into bed with a young girl, under certain circumstances, could be considered indecent. They found Falamoe's conduct indecent due to the absence of a familial relationship and the surrounding context indicating an illegitimate sexual interest.

The Supreme Court assessed whether the Court of Appeal's interpretation of the statutory language was correct and whether the case presented a matter of general or public importance. The Court of Appeal had found Falamoe's act indecent based on the context and motivation behind his actions, despite the girl being asleep. The Supreme Court found that the Court of Appeal's interpretation was a legitimate application of the settled principles from Y v R and Rowe v R. It concluded that Falamoe's act, in the given context, could reasonably be seen as indecent. The Supreme Court also determined that the case did not raise any questions of general or public importance, nor did it present a risk of a substantial miscarriage of justice. Therefore, the application for leave to appeal was dismissed.

Orders