A child-molester who groped two young sisters at Pretty Bay in Birżebbuġa almost 10 years ago has had his jail term reduced to a suspended sentence, after a judge ruled that he had not been accused of the correct offence.

A police report had been filed in August 2009 stating that the two sisters, then aged eight and nine, had been at the beach when they had seen a man swimming and pushing some small dogs on a lilo.

The curious children had commented on how cute the dogs were and the man had agreed, before groping both sisters’ genital areas.

“He was going to [put his hand under my swimsuit] but I didn’t let him,” one of the sisters, testifying via videoconferencing, had told the court. The accused had tried to pull her back but she swam away.

Her sister had also described to the court how the man had done the same to her and then made her promise not to tell her mother that he had touched her.

However, the children had told their mother of the incident later that evening as she was bathing them and the parents went straight to the police, who arrived at the conclusion that it was Alfred Xerri – known as “il-Uomo” – from the children’s description of the man.

The 79-year-old had been sentenced to three years’ imprisonment when he was convicted in 2013. Mr Xerri, who consistently denied any wrongdoing, had filed an appeal with his lawyer Joe Brincat insisting that the touching was “entirely accidental” and that in a worst-case scenario would only constitute the crime of violent indecent assault.

Madam Justice Consuelo Scerri Herrera said she could not find a person guilty of a crime they had not been accused of, citing case law and the criminal code. 

The Court of Criminal Appeal therefore revoked the sentence at first instance where it found Xerri guilty of defilement of minors “bearing in mind that although this Court agrees with the appellant that the facts fit the crime of violent indecent assault, the appellant was not accused with this crime and this court therefore cannot find him guilty of violent indecent assault.”

It was up to the prosecution to accuse the appellant with this crime but it had not been mentioned, so much that the Attorney General did not indicate it in his note of referral, said the court.

Despite being cleared of corrupting a minor, the man’s conviction for offending public morals was upheld.

The judge underlined that although the appellant was not being found guilty, “his behaviour was deplorable and can never be accepted, behaviour which causes fear both in the young victims as well as parents and society in general”.

Noting that the man had also been convicted in 1999 of offending public morals, the court fined him €1,000 and imposed the maximum punishment of three months’ imprisonment which the court suspended for the maximum of four years in view of the accused’s advanced age.