Girl says she repeatedly told a man she was 13 years old - before and after sex

Tuesday, 21 January 2025

A teenager has described repeatedly telling a 20 year-old man that she was only 13 before and after the pair had sex.

Luca Benedict Kercher Fairgray is on trial at the Auckland District Court.

Now aged 21, he has denied three charges of sexual connection with a young person under 16.

Giving evidence by CCTV in a closed courtroom, the girl said she was 13 years old when she met Fairgray online.

She said the pair talked about autism and she told Fairgray she was 13. Fairgray told her he was 20.

The girl said Fairgray came to her mother’s home later that night when no one else was home. He had marijuana and the pair watched a movie before smoking and having sex.

Later they went for a walk to a nearby McDonald’s.

“I heard police sirens and just ran off.”

The girl said she returned home and sometime later she got a call from Fairgray who was lying under a car.

“He said it was something to do with his past but he didn’t want to talk about it.”

She said in the following weeks, the pair would meet up at her mother’s home, his parents’ home and in his parents’ car. They had sex about 10 times and Fairgray did not use a condom.

“I would sneak out and he would pick me up … because I knew it was not right and I didn’t want my mum finding out.”

Asked why, she said: “Because he’s 20.”

She said they had sex about 10 times and kept the relationship from their parents.

“I didn’t tell anyone.”

She would also visit Fairgray at his parents’ home late at night. The pair would stay quiet.

“We didn’t want to wake his parents but this one time his mother came in.”

She said the pair were in bed together and Fairgray later told his family that she was 18 years old.

Crown prosecutor Pip McNabb asked the girl how many times she and Fairgray talked about their ages. She said: “I’m not entirely sure but enough times for him to remember.”

About a month into the relationship the girl thought she was pregnant. She said they visited a petrol station and Fairgray bought her a pregnancy test. She used the bathroom at the petrol station and the test came back positive.

She said Fairgray arranged for her to visit a clinic and provided her name and date of birth. When he was asked about his own age, the girl said Fairgray told the clinic’s staff he was 15 years old.

She said Fairgray did not come to the appointment. She told the doctors and nurses that Fairgray was 15 “because I didn’t want him in trouble”.

Earlier the jurors heard an opening address from Crown prosecutor Rosemary Hayden who said the relationship was exposed after the girl went missing.

Hayden said Fairgray had nothing to do with her disappearance but it did cause the girl’s mother to find out about the relationship. She contacted the police.

Hayden said when the police visited Fairgray’s home, he told officers that he thought they were there because of the “age difference”.

Hayden said Fairgray then contacted the girl.

“He tried to convince her to lie to the police … that she had told him she was 16 and not 13.”

Hayden said Fairgray told the girl he would tell police that.

Ordinarily it is for the Crown to prove charges beyond a reasonable doubt but Hayden said because Fairgray admitted there had been a sexual relationship, the burden shifted.

It was up to Fairgray and his defence lawyers to prove he had a reasonable belief that she was 16.

Fairgray’s lawyer Susan Gray told the jurors that both her client and the girl were neuro-divergent.

She said that was especially significant for her client who viewed the world in “black and white”.

She said the girl had told Fairgray she was 16 and not 13 and he had believed that.

“Luca’s thinking and interpretation of social settings is concrete, it’s not nuanced … keep that at the forefront of your mind … to not do so would be unfair… to not do so would effectively be to discriminate.”

Gray said the defence did not dispute that the pair had sex and that Fairgray was 20 at the time while the girl was 13.

But she said at issue will be whether the girl lied to Fairgray about her age and whether it was reasonable for Fairgray to have believed her, especially given his neuro-divergence.

She also warned the jurors not to allow feelings of prejudice and sympathy to effect their decision making.

“For example, the termination, obviously that’s a shocking and distressing event.

“But this trial is not about abortion and it’s not about what people feel about abortion.”

Judge Evangelos Thomas confirmed to the jurors that the burden of proof had shifted to the defence.

“As of this moment, Mr Fairgray is guilty and the reason is, is because the defence accepts everything in those charges.”

Judge Thomas said it would be for Fairgray’s lawyers to prove that he had a reasonable belief that the girl was 16 or over and that he took “reasonable steps” to find that out.

The trial, before Judge Thomas and a jury, is set to hear from 12 witnesses over two weeks.