Indecent assault conviction undermined by sheriff's "victim" references

A man has successfully appealed against a conviction for indecent assault because the sheriff at his trial repeatedly referred to the woman concerned as "victim" rather than "complainer".

The Criminal Appeal Court in Edinburgh allowed the appeal by Giovanni Passomonti, a 22-year-old student who had been accused of climbing into a sleeping bag alongside a sleeping and intoxicated 20-year-old woman on board a yacht moored at Dunstaffnage Marina, and carrying out a sex act on her. The two were there on a university sailing club outing.

His appeal was brought on the grounds that at his trial in Oban Sheriff Court, Sheriff Douglas Small had used prejudicial language that was likely to have led the jury to believe that an offence had been committed, when that was an issue for them to decide. He was also said to have failed to direct the jury on the significance of a "mixed statement" by the accused – one that is partly incriminatory and partly exculpatory.

The Crown indicated to the court that it would not oppose the appeal, and Lord Brodie, sitting with Lord Bracadale and Lord Drummond Young, agreed that it was appropriate to allow the appeal.