Former Canberra academic Rick McGary was last year found guilty of two counts of sexual assault over incidents against separate complainants in 2016 and 2020, but acquitted of a third count. The Court of Appeal has now set aside the convictions, ruling tendency evidence lacked probative value and had a prejudicial effect, Harry Frost reports in ABC News.
In December, Chief Justice Lucy McCallum sentenced McGary to six years behind bars.
But the ACT Court of Appeal has now set aside the convictions, ruling tendency evidence lacked probative value and had a prejudicial effect.
Prosecutor Emma Bayliss argued the academic was a “determined pursuer” with a tendency to disrespect sexual boundaries. “Each woman’s account lends support to the other’s account,” Bayliss said.
But the appeal judges found the similarities between the incidents weren’t strong enough to give them “significant probative value”.
“The evidence shows little more than the fact that the two complainants have made allegations against the accused in respect of the events alleged in the indictment itself,” Justice Natalie Charlesworth said.
“Other aspects of the tendency (a tendency to have sexual intercourse with an intimate partner in a context where past acts of sexual intercourse have been consensual) is a generic statement of little or no forensic force.”
Justice Charlesworth also found that the complainant in the 2020 incident having deleted some text messages between herself and Mr McGary and denying having sent others, raised significant concerns about her credibility.
The appeal court also found prosecutors had obtained information during the previous trials about the 2016 incident – before he had been charged over it — putting him at a “forensic disadvantage”.
The Court of Appeal ruled that bringing that charge to a third trial “brought the administration of justice into disrepute”.
“On any retrial, the court’s powers could not be exercised in a fashion so as to avoid the disadvantage of the appellant,” Justice Charlesworth said.
The court ordered the conviction be set aside and that the charge never be tried again.
In a statement, McGary welcomed the court’s decision.
“What has been done to me is both unprecedented and a gross violation of democratic norms. Hopefully this will never [be] done to anyone else,” he said.
EDITOR’S COMMENT: Hallelujah! This is a welcome example of an appeal court recognising a key problem with tendency evidence in sexual cases; unreliable evidence supporting unreliable evidence. As one legal eagle has said, it is used by the prosecution to bolster weak cases. The other issues, complainant credibility and prosecutorial malpractice, echo flaws in other cases.
Judge Taylor in my case said Mr. V has led an exemplary life before and after these incidents. “He must have had a brain snap “he said.
Or you dopey old man. (Sorry had to say it in spite of the fact that he died many years ago. ) Perhaps it never happened. ??????
Don’t forget , on two occasions as described by the complainant , I came from a room that did not exist for about 4 yrs and ! Evidence which proved this fact was in police’ s own brief. And …. NOT presented to the jury . The DPP got the witness to change the evidence to match…. Without objection by my barrister . Somebody Help Me .such obvious collusion between police and DPP deserves jail time for Police and DPP corruption. It’s called perverting the course of Justice. Go directly to jail. !
By the way , just to further cast doubt about the sound mind of my accuser, …In 2018 , about 17 years after she married her husband and gave birth to 3 children , she left him and married a woman journalist who had reported on the case. Some Woke lefties will say ‘what’s wrong with that ? I say plenty. ! Ask her 3 children. Pv
As you know , tendency used on my case was used to support 3 charges . One resulted in no finding. The two remaining charges were completely different . The tendency and coincidence was used against me for both . One of the two was more serious than the other And even though the tendency given was not even the same as the lesser charge , the judge allowed tendency and coincidence to be used against me for the more setious charge which had no similarity to the detail offered by the tendency witness. It was unconstitutional according to the best appeal Counsel in the country yet my appeal was refused in the CCA and then , much due to Justice Bell , my appeal was dismissed 3 to 2 i io n the high court. Bad lawyers become rotten judges , don’t they Justice Bell , judge Basten and judge Latham. You are not good Judges of Anything. You helped a nasty , violent complainant to ruin my life. I often ask Jesus to look out for you at the pearly gates …..then slam it in your faces . You are all fakes. In any jurisdiction you are all a farce.
Justice Charlesworth hit the nail on the head regarding generic tendency claims.
The prosecution’s argument—attempting to turn a normal relationship history into a broad “tendency to disrespect sexual boundaries”, is a classic example of bootstrapping. Far too often, tendency rules get treated like a shortcut: if you lack sufficient evidence to prove Incident A, and you lack sufficient evidence for Incident B, you simply stack them together and claim they corroborate each other.
As your examples highlight, this circular logic reframes routine, lawful behaviour into a sinister pre-emption of a crime, replacing solid proof with speculation. When you add the issues of complainant credibility and the severe forensic disadvantage imposed by trial sequencing, the appellate court had no choice but to step in.
Stacking two weak cases doesn’t make a strong one—zero multiplied by two is still zero. It is reassuring to see the ACT Court of Appeal enforce the statutory threshold and remind prosecutors that tendency evidence must carry genuine, significant probative value, not just prejudicial splash damage.