By Kate Green of RNZ
An Auckland man who raped and assaulted six girls when they were teenagers - and then went on to offend against a 13-year old while he had name suppression - can finally be identified.
In a written decision released today, the Supreme Court has rejected a further bid by Luca Fairgray, 22, to continue his name suppression, pending an appeal on his most recent convictions.
"In our view the possibility of a retrial and associated unfairness from publication do not outweigh the principles of open justice where that prospect is speculative and other safeguards are available. Further, there is considerable public interest in knowing about the appellant's previous history," the judges wrote.
Fairgray offended against his first victim in 2017, when both were 14. He was sentenced to 12 months' home detention in 2022, after pleading guilty to a total of 10 charges including rape, sexual violation, indecent assault and sexual conduct with a person under 16.
While some of Fairgray's charges were filed in the Youth Court, where automatic name suppression applies, the case was transferred to the District Court because of his age at the time of the later offences, and due to their serious nature.
He asked for permanent name suppression on the basis that publishing his name would be likely to cause extreme hardship and endanger his safety.
His application was declined, as was a later appeal to the High Court. The Court of Appeal then declined him leave to appeal a second time.
He took it to the Supreme Court, but that court ruled public interest outweighed Fairgray's right to privacy.
However, before he could be named, the court was told Fairgray was facing new charges against a 13-year-old girl and extended name suppression to protect his right to a fair trial.
He was found guilty in February this year of three charges of sexual conduct with a young person and is due to be sentenced later this month.
In the written judgement released today, the Supreme Court has declined Fairgray's further application for ongoing name suppression.
The offending
The first assault happened in 2017, when Fairgray held down another 14-year-old and violated her, only stopping when another boy pulled him away. He then chased and threatened the other boy.
The next year he climbed on top of a second victim as she lay intoxicated on a bed and groped her. Both were aged 15.
He offended against another 15-year-old that same year, twice - once assaulting her in a park and later raping her while she was unconscious after drinking.
In 2019, Fairgray had sex with a girl who was only 13 at the time. In 2020, when he was 17, Fairgray had consensual sex with a girl the same age at an "end of lockdown party" - but when she asked him to stop he ignored her, and went on to perform acts that caused her considerable pain.
That same night he lay on a bed with another 17-year-old while she was intoxicated, before climbing on top of her and restraining her when she tried to move. He was interrupted by the earlier victim entering the room.
Fairgray had treatment with a psychotherapist for more than eight months to address his sexual offending, and completed a programme with Safe Network. His lawyers argued his youth and late autism diagnosis provided context for he hardship he would face.
They said naming him would pose a risk to his mental health, employment and social prospects, and put him at threat of vigilantism.
His family had called police after "condoms full of dog excrement were thrown at the family home, and another occasion in which a rock was thrown against the house, landing on the back deck".
While Justice Ellen France agreed he met the threshold for hardship, she found the principal of open justice tipped the balance. Fairgray would have difficulty reintegrating into society unless he changed his name, she said, but would need to disclose his convictions to potential employers anyway because of how serious they were.
She rejected the notion that Fairgray had "an honest but unreasonable belief in consent".
"As the High Court said, 'any of his victims told him to stop. One in particular was screaming out in pain before he stopped.' This was not a case of missing some social cues."
The offending took place over an extended period of time and involved a number of victims - therefore, it could not be a case of "a teenager who has made some terrible mistakes".
Victims speak out
Three of the six victims - Mia Edmonds, Rosie Veldkamp and Ellie Oram - had previously waived their own right to automatic name suppression.
Edmonds said: "All we really can do is hope that eventually, his name will come out, and anyone who is able to see that will feel more empowered to speak up if they've been through something like this."
According to Veldkamp: "It has been an injustice to allow females to cross his path without knowing who he is and the disgusting crimes he has committed with no remorse again and again."
Their lawyers argued that by Fairgray keeping his identity secret, his victims' recovery was incomplete, because they wanted him to be held accountable for the offending by experiencing both penal and social consequences.
"There may be other victims who might come forward if [he] is named," the judgement said.
"The victims are also concerned about the potential there will be other complainants in the future, absent any ability to warn young women about [his] previous offending."
Implications for future cases
The landmark case gives judges more guidance on whether young offenders should keep their identities secret when their case is heard outside the Youth Court.
Justice France noted New Zealand had committed to international conventions around rehabilitating and reintegrating young offenders.
However, she said the Criminal Procedure Act, which outlines the rules for name suppression, highlighted the importance of open justice, and there would need to be a specific provision in the law if youth justice principles were to be given more weight.
