A Comancheros member who claimed he was wrongly convicted of savagely beating a woman while in a jealous rage will remain in jail after failing to convince a High Court judge of his innocence.
Mormon Fa’alogo’s explanation for the woman’s injuries, which included a collapsed lung, is “patently implausible” and “defies belief”, according to the latest decision against him.
Prosecutors acknowledged the case against Fa’alogo was unique, with his victim having actively tried to derail the charges. The woman declined to give evidence for police at Fa’alogo’s Auckland District Court judge-alone trial last year.
But she entered the witness box on behalf of the defence later in the trial, insisting Fa’alogo wasn’t responsible for the May 2023 beating that left her hospitalised after also suffering a broken eye socket, bruised and swollen eyes, fractured rib and a gash across her hand. Fa’alogo testified as well, denying guilt.
Defence lawyer Julie-Anne Kincade, KC, representing Fa’alogo on appeal, argued it was a miscarriage of justice for district court Judge Nicola Mathers to have reached a conclusion contrary to the only two trial witnesses who were present during the beating.
But Fa’alogo’s explanation – that three masked, mystery intruders were to blame for the woman’s beating, while sparing him a similar assault – was so unbelievable that the district court judge rightly disregarded it, Crown prosecutor Ruby van Boheemen argued during a sentence appeal hearing in the High Court at Auckland last month.
Justice Dani Gardiner ultimately agreed.
“I consider that the judge was correct to set aside the evidence of the defence witnesses as lacking in credibility,” she wrote in a reserved decision recently released to the Herald. “The account of events by Mr Fa’alogo and by the victim is patently implausible.”
His sentence of six years and two months, imposed earlier this year for the wounding with intent to cause grievous bodily harm conviction, remains in place.
During his trial, prosecutors had alleged Fa’alogo had flown into a jealous rage on the evening of May 17, 2023, after discovering texts on his then-partner’s phone suggesting she was cheating on him with her ex.
Fa’alogo admitted he had used his partner’s phone to send a video message to her ex.
“Ah, ey brother, this is a f***ing message to you bro,” he said in the video, which showed the victim stumbling around with severely swollen eyes and blood running down her face. “You wanna keep meeting/beating up on my f***ing girl, ao?
“Look at her, brother, imagine what’s gonna happen to you, c***sucker. I know who you are.”
Texts and social media communications showed further threatening messages to the other man.
In one voice message, in which Fa’alogo was identifiable by his distinct Australian accent, he told the other man: “Look here c***sucker, I’ll f***ing call you out f***ing sleeping with my girl. I don’t give a f*** about you guys’ history, brother. You f***ing crossed a line, now it’s f***ing, it’s time for me to show you what f***ing, what happens.
“You think it’s a f***ing game, lad, sleeping around with someone’s f***ing missus? F*** you! Watch what happens, c***sucker.”
A short time later, Fa’alogo called 111 claiming to be his partner’s brother and telling the operator that she had been badly beaten by a group of women during a drunken night out. When no ambulance arrived, he took her to the hospital himself.
Fa’alogo, who was wearing an ankle monitor because of being on electronically monitored bail, rang authorities to say he was leaving his home for the hospital because he had hit his head and was in and out of consciousness.
When they arrived at the hospital, his partner was unable to stand and had to be put in a wheelchair. An officer noticed blood on Fa’alogo’s ankle monitor. His knuckles appeared bruised.
“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,” Justice Gardiner summarised in her recent decision.
“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.”
Fa’alogo claimed he only discovered the messages from his partner’s ex on her phone when he grabbed it to call 111 while the victim was showering. He then got “sidetracked”, sending the messages to the other man, he said.
But a detective who examined the home that same day reported finding tufts of hair matching the victim’s that had either been pulled out or cut off. It seemed like more of a personal assault, uncharacteristic of a home invasion, the officer said.
While the victim seemed to co-operate with police initially, it was a different story when a detective reached out to her a month and a half later, trying to set up a time to complete a video interview. She disavowed any previous statements, explaining she had been “highly medicated in hospital and therefore not in the right mind”.
The absence of what would have been the star witness did change the case to one that was circumstantial, prosecutors acknowledged at last month’s appeal hearing.
But there was plenty of other evidence for the district court judge to have fairly reached a guilty verdict, van Boheemen argued.
“This was a very strong case, notwithstanding the Crown was not in a position to call who would usually be the complainant,” she told the High Court justice.
The defence disagreed that it was strong enough to overcome the combined and consistent accounts of the defendant and his partner.
Fa’alogo’s first lie to police, in which he said his partner had been beaten while out on the town, can be explained by the gang code in which he didn’t want to be seen as a “narc” on the home invaders, Kincade said.
But the Crown countered that Fa’alogo had the motive – infidelity – and the communications with his partner’s ex made it clear he was furious.
Van Boheemen noted neither the defendant nor his partner could give descriptions of the alleged intruders.
Justice Gardiner also had issues with Fa’alogo’s account, describing it as “unbelievable” that home invaders would target his partner while leaving him “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,” the judge said.
“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.
“Overall, Mr Fa’alogo’s narrative is obviously untrue, and the [district court] judge was right to place no reliance on it.”
The victim’s account also cannot be believed in light of her “plainly untrue” suggestion in the witness box that she might have sent the threatening messages to her ex, the judge said.
“She is obviously trying to protect her partner from the consequences of his actions,” Justice Gardiner wrote.
With their explanations out of the way, the circumstantial evidence was strong enough on its own to merit a conviction, she said.
“I find that there is no other credible explanation for what happened than that it was Mr Fa’alogo who severely beat the victim,” the judge concluded.
“There was no miscarriage of justice.”
Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.
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