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.