A former top executive who was previously convicted of raping a Norwegian backpacker in Cairns will face a retrial after a court set aside his conviction.
Alan George Vico was a senior executive of Ports North — a Queensland Government-owned corporation — when he allegedly picked up the young woman as she walked along a road, took her to a motel in the Cairns suburb of Earlville and raped her in September 2018.
The 20-year-old woman, who was heavily intoxicated, woke the next morning in the room, where she found a $20 note and a condom wrapper on the table beside her.
Judge Julie Dick sentenced him to five and a half years in jail for the rape in a judge-only trial last year.
Mr Vico, who resigned from his $290,000 a year job following the allegations, appealed against his conviction and sentence, claiming that Judge Dick's decision was "manifestly excessive" and "not supported by the evidence".
The Court of Appeal today handed down its decision, saying there were "deficiencies" in Judge Dick's ruling.
The appeals court was not satisfied beyond reasonable doubt "that at the time of penetration the complainant lacked the cognitive capacity to consent to sexual intercourse".
"In coming to that conclusion, it was open to the tribunal of fact to conclude that there was no evidence which gave rise to consideration of a defence of an honest but mistaken belief that the complainant was consenting to sexual intercourse," the judgement said.
It also found "there is a real and appreciable risk that the appellant has been denied a fair chance of acquittal, such that there has been a miscarriage of justice".
Last year's District Court trial heard the woman was on a holiday with friends in Cairns and had gone to a popular nightclub.
She left about 10:30pm and was picked up by Mr Vico as she walked along a highway.
The court heard she had no memory of the event, and woke alone in a motel room, finding a $20 note and an empty condom wrapper.
A date for the retrial has not yet been set.
