R v Vecchio and Tredrea

Case [2016] QCA 71

SUPREME COURT OF QUEENSLAND

CITATION:

R v Vecchio & Tredrea [2016] QCA 71

PARTIES:

In Appeal No 140 of 2015
R
v
VECCHIO, Adam
(appellant)

In Appeal No 142 of 2015
R
v
TREDREA, Joshua Herbert
(appellant)

FILE NO/S:

CA No 140 of 2015
CA No 142 of 2015
DC No 105 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 24 June 2015

DELIVERED ON:

30 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2016

JUDGES:

Fraser and Philip McMurdo JJA and Jackson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In Appeal No 140 of 2015:

Appeal dismissed.

In Appeal No 142 of 2015:

1.   The conviction of rape (count 2 on the indictment) is set aside and instead a conviction of attempted rape (count 3 on the indictment) is entered.

2.   Remit the matter to the District Court of Queensland for sentence upon the conviction of attempted rape.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant, Vecchio was convicted of one count of rape – where the appellant Tredrea was convicted of one count of rape and one count of indecent assault – where both appellants argued that their convictions ought be set aside as unreasonable because of the poor quality of the evidence – where the appellants argued that the complainant’s evidence was shown to be unreliable, inconsistent with, and contradicted by other compelling evidence – where the complainant alleged that she was extremely unwell at the time of the offending – where the testimony of the appellants suggested that they were aware of her extreme illness at the time of the offending – where the trial judge appropriately directed the jury – whether the jury’s verdicts were unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where Tredrea was convicted of one count of rape – where Tredrea alleged that the evidence of his statements to police was insufficient to prove penetration – where it was reasonable to infer he had no reliable perception of whether there had been penetration – where the complainant gave no evidence of penetration by Tredrea – whether the jury’s verdict was open on the evidence – whether it was appropriate to substitute a conviction of attempted rape

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – SEPARATE TRIALS AND ELECTION – where Vecchio applied for an order for a separate trial – where the application was refused – where Vecchio argued that evidence only admissible in Tredrea’s case would have bolstered the complainant’s credibility – where this evidence could have been relied upon to reject Vecchio’s account – where the Crown’s case against Vecchio turned upon the credibility of the complainant – where…

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AGLC
R v Vecchio & Tredrea [2016] QCA 71
Case
[2016] QCA 71
Decision Date

CaseChat Overview and Summary

The case of R v Vecchio and Tredrea involved two appellants, Vecchio and Tredrea, who were convicted by a jury of various offences, including rape and indecent assault. The appellants appealed against their convictions, arguing that the verdicts were unreasonable and should be set aside due to the poor quality and inconsistencies in the evidence presented by the complainant. The court had to determine whether the jury's verdicts were open on the evidence and whether there was any miscarriage of justice in the proceedings.

The primary legal issues revolved around the sufficiency and reliability of the complainant's evidence, the consistency of her testimony with other evidence, and whether the jury was properly directed in assessing the credibility of her account. The court had to evaluate whether the discrepancies and inconsistencies in the complainant's evidence were significant enough to require the jury to harbour a reasonable doubt about her reliability. Additionally, the court needed to determine whether the evidence was sufficient to support Tredrea's conviction for rape and whether an alternative conviction, such as attempted rape, was appropriate.

The court found that the jury was properly directed in assessing the reliability and credibility of the complainant's evidence. The discrepancies and inconsistencies pointed out by the appellants were not so significant as to necessitate a reasonable doubt about the critical aspects of her testimony. The court concluded that the jury's verdicts were open and not unreasonable upon the whole of the evidence. The court also found that the evidence was sufficient to support Tredrea's conviction for attempted rape, given that the complainant did not provide evidence of penetration by Tredrea. Consequently, the conviction for rape against Tredrea was set aside, and an alternative conviction for attempted rape was entered.

In summary, the appeals were dismissed for Vecchio, while for Tredrea, the conviction for rape was set aside, and a conviction for attempted rape was entered in its place. The matter was remitted to the District Court of Queensland for sentencing on the conviction of attempted rape.

Orders

Orders of the court

In Appeal No 140 of 2015:

Appeal dismissed.

In Appeal No 142 of 2015:

1. The conviction of rape (count 2 on the indictment) is set aside and instead a conviction of attempted rape (count 3 on the indictment) is entered.

2. Remit the matter to the District Court of Queensland for sentence upon the conviction of attempted rape.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Before discussing those grounds of appeal I will outline the evidence in the Crown cases against each appellant.Outline of the evidence The complainant, who was eighteen years old at the time of the alleged offences gave the following evidence. On the evening of 19 July 2013 she and her mother arrived at the Mango Hill Tavern at 8.00 pm and stayed for a maximum of two hours. She had a maximum of five glasses of beer. On a scale of intoxication where one is sober and ten is “incredibly intoxicated”, the complainant was six as at 10 pm. During the evening she walked to a table where the appellants were sitting with someone she knew. The complainant could not remember what conversations, if any, she had. She remembered making eye contact with Vecchio. She could not remember talking to him or to Tredrea. She had no physical contact with any of the men. The complainant recalled that her mother spoke with a group of men with whom the complainant was sitting. When the complainant’s mother decided to go home she should not drive because she was too intoxicated. One of the group drove the complainant’s mother’s car with her and the complainant as passengers. The appellants and another man drove separately to the complainant’s mother’s house. The drive between the hotel and the house occupied about five minutes. They were at the house for about five or 10 minutes. The complainant’s mother stayed there. The complainant remembered walking outside with the men and getting into a car seat. She thought that would have been with both appellants and another man. She remembered being driven in the car. She did not remember stopping. (In the complainant’s evidence she often referred to not remembering things.) The complainant’s next memory was of waking up while she was sitting on a bed. She felt sick, drowsy, dizzy, nauseous and confused. She thought that she heard Vecchio talking. Her next memory was of lying down on the bed. She jolted up, vomited all over herself, and stumbled into a bathroom. Her next memory was of being “fully naked” in the bathtub in that bathroom. While she was in the bathroom she heard voices, including a voice with an English accent. (One of the witnesses, Charlie Terry, spoke with an English accent.) The complainant vomited a lot. She thought that she vomited blood. She called out for help. She felt that photographs were being taken of her. She felt that she was in the bathtub for a long time. The next thing she remembered was waking up with Vecchio on top of her on the bed. Vecchio was having sex with her. The complainant felt that she could not do anything at the time “because I was just so out of it, and I felt like I was going in and out of consciousness, and I felt paralysed”. She did not give Vecchio consent. She did not know what to do. She did not say anything. Her next memory was of Tredrea “handling me, handling my hands, putting them on his penis and talking to me”. She did not remember what he said, “but he was manhandling me like a rag doll, trying to get me to touch him or something…on his penis”. She could not remember the state of his penis. Tredrea told her that she was “shit”. She felt weak and paralysed. She never agreed to have sex with Vecchio or Tredrea and she did not agree to touch Tredrea’s penis. The complainant’s next memory was of waking up in the morning. It was daylight and Vecchio was sleeping in the bed next to her. All her clothes were on the ground. Her jacket was disgusting. There was semen all over it. The complainant felt “really weak” and “really sick” and wanted to throw up. She got dressed, went to the bathroom, and saw vomit everywhere. She stormed back into the room and demanded that Vecchio take her home. On the drive home the complainant asked Vecchio not to tell anyone; he chuckled and said “Okay”. When they arrived at her place she left the car and walked into her house.

Decision

Reasons for decision

The same reasoning is applicable in Tredrea’s case, save that the Crown case against him was stronger, given the degree of the complainant’s intoxication and the seriousness and duration of her illness which he described in his police interview. In particular, his statements to the effect that the complainant was unconscious shortly after arriving at the house, after she went to the bathroom, and when he returned from the brothel, and his admission that the complainant was not thinking straight. The jury could reasonably conclude that there was nothing implausible about the complainant’s evidence that she was awoken from unconsciousness by Tredrea “manhandling me like a rag doll, trying to get me to touch him or something … on his penis”, that she lapsed back into unconsciousness immediately after he said the words she attributed to him (which he accepted that he said), and that, after further rest during which the degree of her intoxication presumably diminished, she awoke in the morning. The jury could accept that evidence and the complainant’s evidence that she did not consent to Tredrea’s sexual conduct, and conclude that, notwithstanding her lack of resistance to that conduct, any belief he held that she consented was not a reasonable belief.Unreasonable verdict ground of appeal: conclusions There was no complaint by either appellant about the trial judge’s summing up to the jury. The trial judge summarised the evidence upon which the appellants rely in their appeals and directed the jury that “those things must necessarily be taken into account and critically assessed by you, in the close scrutiny that you give to her evidence, quite apart from and in addition to any other considerations that attracted you out of the submissions of counsel”; and that “you should act on the complainant’s evidence which is critical to the Crown case, only if, after considering it with the necessary care and scrutiny and in the context of all of the other evidence and particularly those aspects of the evidence I have just detailed, you are convinced of its truth and accuracy, beyond reasonable doubt”. The individual and cumulative effect of the matters raised for the appellants deserved consideration, but there is no reason to think that this properly directed jury did not properly perform that task. The jury was in a good position to consider the credibility and reliability of the complainant’s evidence, particularly having regard to the extensive and intensive cross-examinations of her, the submissions to the jury by the respondent and the appellants through their counsel at trial, and the trial judge’s careful summing up. The jury must have accepted that the complainant’s account of the alleged offences was honest and reliable. That conclusion presumably depended to some degree upon the manner in which the complainant and other witnesses gave evidence. I conclude that the jury’s verdict that Vecchio was guilty of rape was open and not unreasonable upon the whole of the evidence admitted in the Crown case against him. Similarly, the jury’s verdict that Tredrea was guilty of indecent assault was open and not unreasonable upon the whole of the evidence admitted in the Crown case against him.

Ratio Decidendi

Legal Principle Established

Tredrea said that he had not spoken to the complainant before that night. He referred to a subsequent occasion at the tavern when the complainant “was going on about something and then I said, I asked her and then she said you don’t take advantage of drunk women or some shit. And I was like … I didn’t reply back to her … I was thinking in my head, like, you were the one that told us, like she wanted to come back to ours …”. Tredrea repeated that he did not think he replied to the complainant in that conversation. One of his mates started getting angry because of what the complainant was saying, so Tredrea grabbed him and they left.Consideration Both appellants argued that their convictions should be set aside as unreasonable because of the poor quality of the evidence in the Crown case, particularly the evidence of the complainant. They argued that in some important respects the complainant’s evidence was shown to be unreliable, inconsistent with, and contradicted by other compelling evidence. There were a variety of discrepancies and inconsistencies in the complainant’s evidence and between her evidence and the evidence of other witnesses, including the witnesses who gave evidence of disclosures made by the complainant. There is no reason to doubt that the jury took those matters into account when assessing the reliability and credibility of the complainant’s account. In my view, none of the points agitated by the appellants was so clear or of such significance to require the jury to harbour a reasonable doubt about the accuracy or reliability of the critical aspects of the complainant’s evidence. I will discuss the matters which were emphasised in argument. The appellants argued that unreliability in the complainant’s account of the alleged offences was demonstrated by a conflict between the complainant’s evidence that she had no physical contact with Vecchio at the tavern and the CCTV footage. They argued that the video showed, consistently with the evidence of Terry, Dylan Goldin, and the complainant’s mother, that the complainant had considerable contact with the appellant and others, including sitting on the appellant’s lap. However the oral evidence of the suggested contact, which was given two years after the event, lacks convincing detail. Dylan Goldin’s evidence is vague. Terry’s evidence that the complainant sat on a number of boys’ laps (which was given by him saying “yeah” to leading questions) is unsupported by the CCTV footage. The complainant’s mother did not describe the conduct which she thought amounted to the complainant flirting, apart from a reference to her seeing the complainant sitting on Vecchio’s lap. There was such an event. The CCTV footage records that it occurred at about 11.35 pm (about five minutes before the group left the tavern), when the complainant and her mother sat in the smoking area outside the building with a group which included the appellants. In cross examination the complainant initially interpreted the relevant part of the footage as showing that Vecchio “pulled me in”, before agreeing with defence counsel’s suggestion that the CCTV footage showed that the she “moved in close to him and you go up and sit on his lap and Adam puts his arm around you.” Either interpretation of the CCTV footage is open. The footage also shows that at one point the complainant stands up and Vecchio appears to pull her back down on to his lap. She then returned to her chair. The entire episode occupied less than one minute.