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Appeal over child sex assault rejected by Supreme Court

An 86-year-old man convicted of child sex offences from more than 40 years ago has lost an appeal against his conviction and sentence.

Robert Smith, 86, was jailed for six months for a string of sex offences committed in 1977 against an 11-year-old boy.

Smith appealed conviction and his sentence in the Supreme Court on the grounds that there was no corroboration to support the victim’s claims.

But Puisne Judge Shade Subair Williams said in a judgment this month that the evidence of the victim was enough to secure a conviction.

Mrs Justice Subair Williams said: “This is a case where the magistrate preferred the evidence of the complainant and found him to be a witness of truth.

“The Crown did not, in such circumstances, have to call any other evidence to assist the court in believing and accepting the complainant’s evidence.”

The court heard that the three charges all stemmed from incidents that took place in June and July of 1977 at Smith’s home.

The victim told Magistrates’ Court that Smith had touched the boy in a sexual way, showed him pornography and told the child that his family did not love him and he would never amount to anything.

The complainant, now in his 50s, added a friend of Smith’s had also committed a sex assault on him.

He said that he had cried out for help, but Smith did not intervene.

But Smith denied any of the incidents happened and suggested the claims were made because the victim thought he could profit from the allegations.

The case closed on October 2, 2019 but on November 18 that year, when magistrate Craig Attridge was set to deliver his judgment, the Crown applied for permission to reopen the case to present evidence from another witness, the victim’s cousin.

The cousin had written two statements, one dated October 6, 2019 and the other dated November 23 that year.

He said he remembered being at Smith’s home with the victim in the summer of 1977, despite Smith’s claim that the boy had never stayed at his home.

The cousin added that Smith had phoned him on November 2, 2019 after he had given a statement to police.

The cousin said he felt that Smith had tried to influence him and get his sympathy.

The defence objected to the introduction of the evidence and Mr Attridge refused the Crown’s application on the basis that the prosecution had not established a legal principle that allowed the case to be reopened.

Mr Attridge found Smith guilty on all three charges and sentenced him to six months in jail for causing a child to commit an indecent act, two months in prison for performing an indecent act in front of a child and two-and-a-half months for indecent assault.

Mr Attridge said: “The defendant has shown no remorse and continues to disparage his victim’s character in the social inquiry report and depicts him as motivated in his complaint by money.

“The defendant’s convictions, following trial, for these quite heinous acts against a young child must be balanced however against his advanced age – 84 years – and his prior good character.”

Mr Attridge ordered the sentences to run concurrently and Smith has already completed the sentence.

But he launched an appeal against conviction and sentence, which he argued was excessive.

Bruce Swan, who appeared for Smith at the appeal hearing, argued that the magistrate should have declared a mistrial once the evidence of the cousin was revealed.

He said the witness statement would have changed the defence case and showed prosecutors did not obtain all of the available evidence.

But Mrs Justice Subair Williams said prosecutors only learned about the cousin’s involvement two days before the trial started.

She added the police could not be blamed for the late arrival of the statements.

Mrs Justice Subair Williams said: “Fair to say, the defence had the opportunity to agree to the Crown calling the evidence of the ’key witness’ and the opportunity to cross examine that ’key witness’.

“Instead, the defence objected to the calling of the cousin.

“It’s thus hardly open to the appellant to now contend that the magistrate ought to have declared a mistrial of his own motion for a loss of opportunity for the court to hear evidence from the cousin.”

Mrs Justice Subair Williams added the sentence was “not excessive in any way”.

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