Elderly child sex offender Colin Davis Smith loses name suppression

Colin Davis Smith (centre) stands in the dock at his sentencing in the Wellington District Court for child sex offending, March 2023. Photo / Melissa Nightingale

An elderly sex offender who fought for name suppression because his wife swore to leave him if his name was published has lost a second bid for suppression.

Colin Davis Smith, 82, was sentenced in March after admitting one charge of indecency with a girl under 12. The offending happened more than 40 years ago.

He was sentenced to five months of community detention and nine months of supervision.

Smith has had suppression since his sentencing, despite Judge Arthur Tompkins declining to grand permanent suppression. Smith’s lawyer said at the time he would be appealing the decision, meaning Smith would be able to keep his name secret at least until the appeal period lapsed.

In April, the Herald published Smith’s name, based on incorrect information from the courts that suppression had lapsed. High Court Justice Helen Cull acknowledged in a recently released decision this was due to “unacceptable” misinformation from the courts.

The case was heard at the Wellington High Court in June.

According to the summary of facts, the offending happened in the Hutt Valley in the late 1970s when the victim was 11.

She was asleep in Smith’s home when he crept into the room and lifted the bed covers, using a torch to illuminate her body.

He touched the top of her underwear, which woke the girl, who fled. She spent the rest of the night in someone else’s bed.

Judge Tompkins said Smith had previous convictions for similar offending between 1959, when he was 19, and 1984. The pre-sentence report noted he had little insight into his offending and that he minimised his actions by saying he did not touch the victim.

“The only regret recorded is the impact this offending has had on his wife and their relationship,” the judge said at sentencing.

Smith’s name suppression submissions at that time centred largely on his marriage.

“All I have is my marriage, ultimately. At my age there is not much else to live for,” he wrote in his affidavit.

His wife initially swore an affidavit asking the court to suppress his name, but after NZME opposed the suppression application she swore a further affidavit saying she would end the 49-year marriage if his name was published.

“I really feel I could not go on with our relationship, if [his] name enters into the media, because my friends would see it,” she wrote.

“I could not cope with what people would think of me, if I were to stay in a relationship with someone convicted of child sex offending.”

She also said that, if his name was published, she would lose a close friend who had confided in her about one of her family members being “interfered with”.

But Judge Tompkins said allowing suppression on that basis “would see the court condone [her] retaining a friendship on the basis of a lie”.

Colin Smith also swore an affidavit, saying every so often he would “start howling”. He said if his relationship were to end it would put him under extreme hardship due to psychological harm.

Colin Davis Smith has previous convictions for similar offending from the ages of 19 to about 44.

“She has always stuck by me since she found out about my history of peeping in 1984,” he said.

Smith’s High Court appeal was heard in June in Wellington. Justice Cull declined the appeal last month, but NZME was unable to publish the outcome until the 20-working day appeal period had lapsed.

In her written decision, Justice Cull referred to the publication of Smith’s name by the Herald.

“While the article was live on the internet, the victim linked it to her Facebook page, meaning that Mr Smith and his wife’s family members and friends became aware of the offending,” she said.

“Mr Smith no longer advances the [suppression] ground based on hardship or otherwise to his wife, as some of the unfortunate consequences that Mr Smith had sought to avoid have occurred.”

In support of ongoing suppression, Smith provided a psychiatrist report which stated publication could be a “risk factor” in relation to Smith harming himself. However, there was no evidence Smith wanted to self-harm.

Justice Cull said she did not accept publication was likely to endanger Smith’s safety, nor did she believe he would face extreme hardship if his name was republished.

Smith’s lawyer, Joseph Griffiths, said in his written submissions it was not in the public interest for suppression to be withdrawn “in order for the victim to name and shame the appellant on social media so she can feel some form of vindication”.

NZME and the Crown opposed the name suppression, which Justice Cull declined on July 5.

The victim, who has suffered ongoing abuse from members of Smith’s family, earlier told NZME she was in the process of taking out a restraining order against one of his supporters because of the level of harassment she had received after reporting the offending.

One of the family members lives down the street from the victim and had been yelling at her, saying she lied and manipulated the courts.

But the victim wanted it made clear that Smith had pleaded guilty to the offending.

“Hopefully having it in black and white in the paper proves some things,” she said. “It’s not being kept a secret any more ... he can’t hide behind the lies.”

She felt Smith’s arguments for suppression were “pathetic”, saying they were “just to save him and his wife’s image” and showed he was not “owning what he’s done”.

“To those that said I am a liar, he pleaded guilty and was sentenced for his crime. You need to look at the facts, connect the dots and think for yourselves. You have listened to people who are trying to protect themselves. The judge saw through Colin ... it’s a shame you cannot.”

Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 10 years.