A STUDENT who was found guilty of indecent assault aboard a yacht had his conviction overturned yesterday 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.
We consider it appropriate to allow the appealLord Brodie
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.
His lawyers argued on appeal that his trial was prejudiced by references to a “victim” before a verdict was returned – the woman should have been referred to as the complainer.
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.
Advocate depute Iain McSporran told Lord Brodie, sitting with Lords Bracadale and Drummond Young, that the Crown took the view that it should not oppose the appeal.
Passamonti’s defence solicitor advocate John Keenan was not called on to address the appeal judges.
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 court to see the successful outcome of the legal challenge.