Man convicted for sexual relationship with 13 year-old
Monday, 3 February 2025
The man accused of having a sexual relationship with a 13 year-old girl has been found guilty.
Luca Benedict Kercher Fairgray pleaded not guilty to three charges of sexual connection with a young person under 16 and went on trial at the Auckland District Court.
The jurors took seven hours over two days to return their verdicts.
The 22 year-old pleaded guilty to a fourth charge of supplying cannabis to the girl on the first day of his two-week trial.
Judge Evangelos Thomas thanked the jurors for their service.
He said various issues will be looked at when Fairgray is sentenced, including what led to the offending and what risk he poses in the future.
Judge Thomas told the jurors to reflect on the evidence they had heard and to check-in with themselves and monitor any effects the case has had on them.
He remanded Fairgray in custody until sentencing on March 31.
Fairgray’s lawyer Susan Gray asked for a report to review the suitability of a home detention sentence. Judge Thomas ordered the report but also had a warning for Fairgray and Gray.
“I have to, out of fairness to both of you - you should expect that is an unlikely result. I still have to hear from counsel but I don’t want you to have any misapprehension of that.”
The Crown’s case was that the girl met Fairgray online and told him she was 13 before they began a secret sexual relationship. Fairgray was 20 years old at the time.
Fairgray told the court the girl initially lied and said she was 16 and only “confessed” her true age when she became pregnant.
Many of the facts were not in dispute - Fairgray met the girl online and went to her home the following day. The pair watched a movie, smoked cannabis and had sex.
In her closing address to the jurors on Friday, Crown prosecutor Pip McNabb said the girl told Fairgray she was 13 years old and he had sex with her anyway.
McNabb said Fairgray continued the relationship and thought he could get away with it.
“He knew all along that [the girl] was a child. He was very clever and calculated in the way he went about his relationship with [the girl] and then tried to cover it up and put the blame on [her].”
McNabb told the jurors that Fairgray would have them believe the 13-year-old is some kind of master manipulator who lied to him, then lied to the police and the court.
But she said the 13-year-old’s version of events never wavered while Fairgray told lie after lie in court.
McNabb said the girl’s evidence was clear - she repeatedly told Fairgray she was 13 years old.
The first time Fairgray visited the girl, they watched a PG movie together and there were soft toys on her bed.
McNabb said Fairgray’s evidence is the girl told him she had dropped out of school, she had been left home alone and talked about Victorian England.
“None of those things made logical sense. They appear to be things he’s added in to bolster his claimed belief that [the girl] was 16.”
About a month into the relationship, the girl told Fairgray she believed she was pregnant. McNabb reminded the jurors how Fairgray drove the girl to a petrol station to undertake a pregnancy test in the bathroom.
She questioned why the test wasn’t carried out either at his parents’ home or her home and said the answer was because the relationship was secret.
Fairgray then booked her in for an abortion, providing the girl’s date of birth while lying about his name, age, and that he went to the school with the girl.
McNabb said Fairgray’s version of events was that it was only at this point that he learned the girl was 13 but that was inconsistent with the evidence.
She said rather than ending all contact, phone polling data showed he visited the area around the girl’s home on 12 occasions, sometimes late at night and in the early hours of the morning.
“Think about this, if this man had been truly duped… if you were the male … and had been duped by a girl who lied to you for a month, would you not run a mile?”
She said, instead, Fairgray messaged her, calling her “darling” and “babe”.
McNabb said the relationship continued until the girl ran away from home and police came knocking at the Fairgray family home looking for her. She said Fairgray’s response was to jump out the window and hide under the house.
Fairgray’s lawyer Susan Gray told jurors her client had honestly believed the girl was 16 years old when he began the relationship and it was not until the girl became pregnant that she told Fairgray her true age.
She told the jurors they had to take into account his diagnosis of autism which meant he saw the world in “black and white”.
Gray also pointed to expert evidence from a clinical psychiatrist who said it would be hard for Fairgray to tell when someone was being deceitful.
“It’s not about giving him a soft option that neurotypical people don’t have - it’s about being factual and fair.”
Gray also referred the jurors to various signposts that, she said, led Fairgray to believe the girl was 16.
They included that she had told him she was 16, she had been left home alone overnight and she smoked cannabis. There was also her physical appearance.
“He had no reason to doubt what [the girl] had told him.”
She questioned the credibility and reliability of the girl’s evidence and said she was vague on a range of important issues.
“On my count, there were 60 incidents where she responded with ‘I don’t know’ and ‘I don’t remember’.”
She said one of the key factors of Fairgray’s belief she was 16 was that she had told him she had dropped out of school and Fairgray knew a person could only leave school at 16.
Gray said the girl’s school attendance records show she was not attending school at the time.
She said police searched the phones of Fairgray and the girl. They found thousands of messages but not one involved the girl telling Fairgray she was 13.
Ordinarily the onus of proof is on the Crown, it is the Crown that brings the charges to court and it is the Crown which must prove the charges beyond reasonable doubt.
However, this case is different because Fairgray admits he had sex with the 13-year-old girl.
In his summing up to the jurors, Judge Evangelos Thomas said it was for Fairgray to prove that he took “reasonable steps” to find out the girl was 16 years old and that he had reasonable grounds to believe the girl was 16 or older at the time.
“At the moment, Mr Fairgray is guilty… you will find him guilty unless you are satisfied on the balance of probabilities on the things he needs to prove.”
The “balance of probabilities” test is a lesser standard of proof than “beyond reasonable doubt”.