The Auckland District Court hears testimony from a defendant charged with sexual conduct with minor.
An Auckland man facing charges over his sexual relationship with a 13-year-old asked the prosecutor if he could “tell a joke” while he was being questioned about what steps he took to check the girl was 16.
Luca Fairgray, 22, is on trial at the Auckland District Courtfacing three charges of sexual conduct with a young person, two of which are representative.
It is not disputed that the pair had sex or that she had been 13, but the defence argues the complainant had said she was 16, and Fairgray believed her.
During cross-examination today, prosecutor Pip McNabb queried Fairgray on what steps he took to check the girl’s age before each of their sexual liaisons.
When asked about what he undertook between the second and third time they had sex, he responded: “Can I tell a joke?“
Earlier today, McNabb directed Fairgray to a map with pins indicating the times his phone was listed as being near the girl’s home between July 12 and September 27, 2023.
Many of the times recorded, which all occurred after he said he found out she was 13, were late at night or in the early hours of the morning.
Fairgray accepted he went to her house on some of the listed dates, but said a number of the pins may be recording his phone passing by on the main road by her home.
When questioned about a pin from September 27, 2023, Fairgray claimed he had been outside her home and they had discussed the abortion she was planning to have.
McNabb then reminded the jury the girl had the procedure on August 3.
Luca Fairgray is accused of having a sexual relationship with a 13-year-old girl. Photo / Dean Purcell
Fairgray previously alleged the girl told him she was 13 in early July, after finding out she was pregnant, and he broke up with her as a result.
McNabb asked him why, if they had broken up and he had found out she was 13, did he message her on August 2 saying, “Good morning darling”.
“Because we used to have an intimate relationship,” he responded.
“I’m not going to start being cold to someone who I’ve had an intimate relationship [with] in the past because they’ve lied to me.”
She then asked why he sent the girl, who he knew was 13, a Snapchat on August 9 saying, “I love talking to you”.
Fairgray said he did so because he had no friends, and she was still his friend.
Finally, the prosecutor asked why he sent her a Snapchat message saying, “Sleep well darling”.
“Because I wanted her to sleep well,” he replied.
The defendant and the girl met on a video chat website in June 2023, where the Crown alleges the complainant told him she was 13, before moving to Snapchat.
The pair dated for months and had sex on multiple occasions, both parties accepted.
The complainant became pregnant and an abortion clinic recorded a person called “Luke” made the girl an appointment and gave Fairgray’s number.
Fairgray gave the centre her correct date of birth and lied about his own age, saying he was 15.
His lawyer Susan Gray said he did so because by that point he knew she was only 13.
After the abortion, it’s alleged by the Crown further sexual activity occurred on at least one occasion.
The next month, the girl went missing temporarily and police became aware of the relationship between the pair.
Usually, the burden to prove charges lies with the prosecution. However, in this case, the defence does not contest she was 13 when the sexual conduct occurred.
Judge Evangelos Thomas said the jury needed to consider whether, on the balance of probabilities, the accused had a reasonable belief the girl was 16 and that he took reasonable steps to find out whether she was 16.
“He has to prove both of those things.”
Yesterday, Fairgray testified the girl “looked and sounded” like she was 16.
“She had the body of a 16-year-old.”
He said the pair discussed drugs, used cannabis and, given her history of drug use, he thought she wouldn’t be any younger than 16.
Fairgray told the court she was as tall as he was.
He alleges that after he found out about her age, he broke up with her and they did not have any more sexual contact.
Also yesterday, forensic psychiatrist Dr James Cavney told the jury Fairgray, who has autism, was high-functioning and “doesn’t have an intellectual disability”.
“He’s clearly an intelligent young man.”
The defence expert witness said Fairgray’s biggest deficit was forming connections with people and he didn’t have many friends.
Both the defendant and the complainant have autism and ADHD.
Katie Harris is an Auckland-based journalist who covers issues including sexual assault, workplace misconduct, media, crime and justice. She joined the Herald in 2020.
