An Edinburgh student who was found guilty of carrying out an indecent assault aboard a yacht had his conviction overturned today after a sheriff at his trial repeatedly referred to the woman as a victim before a jury returned its verdict.
Giovanni Passamonti was originally put on the sex offenders’ register and ordered to carry out 300 hours unpaid work under a community payback order.
Passamonti, 22, had denied sexually assaulting the woman in October 2012 on a yacht moored at Dunstaffnage Marina, near Oban, in Argyll.
It was alleged that while she was asleep and in a state of intoxication he climbed into a sleeping bag with her, kissed her and carried out a sex act.
Oban Sheriff Court was told that the incident was said to have happened after drinking games before a university sailing club was due to leave the marina to sail to Tobermory on Mull.
Passamonti, of Nicolson Street, Edinburgh, was found guilty after a trial last year and Sheriff Douglas Small told him it was “an extremely serious offence” which could well have ended up with a custodial sentence.
But defence lawyers acting for the first offender challenged his conviction at the Court of Criminal Appeal in Edinburgh.
Judges were told today that the Crown were not opposing the appeal against conviction based of two grounds advanced critical of the sheriff in his final address to jurors ahead of them beginning their deliberations.
Defence lawyers maintained that throughout his charge the sheriff referred to the woman as “the victim”. A person in her position would be known as the complainer in a Scottish court.
It was claimed that the use of language adopted by the sheriff was prejudicial to the accused’s position.
The sheriff had directed the jury not to allow sympathy to play a part in their decision-making but it was maintained that the repeated reference to her as “the victim” was likely to have led the jury not only to take a sympathetic view of her, but also to conclude that an offence had been committed. It was for the jury alone to decide whether an offence was committed.
The defence also said that the sheriff erred in law in failing to give the jury directions over how to deal with a mixed statement _ which is partly exculpatory and partly incriminating.
During the trial evidence was led of statements made in the form of email in which he admitted sexual contact with the woman but maintained it was consensual.
Advocate depute Iain McSporran told Lord Brodie, sitting with Lord Bracadale and Lord Drummond Young, that the Crown took the view that it should not oppose the appeal.
Mr McSporran said this arose from “the combined effect of the learned sheriff’s complete failure to direct the jury at all in relation to mixed statements and the unfortunate and repeated use of the word victim when describing the complainer in the case”.
The prosecutor said he acknowledged that the stance taken by the Crown was not determinative of the court’s position.
Passamonti’s defence solicitor advocate John Keenan was not called upon to address the appeal judges on the grounds of appeal advanced in the case.
Lord Brodie said the advocate depute had advised that having considered the grounds of appeal relating to “the failure to direct on the significance of a mixed statement and the repeated use of the expression victim to refer to the complainer” he had indicated the Crown would not be proposing to oppose the appeal, unless the court directed otherwise.
The senior judge said: “In the circumstances we consider it appropriate to allow the appeal.”
Passamonti was not in the dock of the court to see the successful outcome of the legal challenge.