A former Australian National University student found guilty of sexually assaulting two people has had the verdicts overturned.
Richard Emory McGary took his case to the ACT Court of Appeal after being found to have committed the crimes by a jury.
In a decision published on Thursday, September 10, the full bench of Justices Andrew Muller, Jon White and Natalie Charlesworth set aside guilty verdicts for two counts of sexual intercourse without consent.
While one of the sexual assault charges may go to a retrial, the other has been permanently stayed by the court.
In December 2025, Chief Justice Lucy McCallum sentenced McGary, then aged 39, to a six-year jail sentence with a three-year non-parole period for the crimes.
In July 2025, McGary was found guilty of two counts of sexual intercourse without consent. He was acquitted of a third count.
The first alleged victim was said to have been sexually assaulted in McGary's room in 2016.
McGary was also found to have sexually assaulted a woman in the back of a car while parked near Cotter Dam in 2020.
Both guilty verdicts have since been overturned and the charge relating to the first victim has been ended.
The Canberra Times understands the ACT Director of Public Prosecutions is considering making an application for special leave to appeal the decision in the High Court of Australia.
McGary faced a total of three jury trials before the now overturned guilty verdicts were reached. The first started in April 2023 but was discharged.
The second jury in July 2024 was not able to reach a decision and was also discharged.
During this second trial the allegations involving the first alleged victim were uncharged and presented to the jury as tendency evidence. This type of evidence is used to argue a person has a tendency to act in a certain way, or have a particular state of mind.
McGary gave evidence during the second trial while the acts involving the first victim were uncharged.
When the third trial started in July 2025, these allegations were now charged as sexual intercourse without consent, meaning the jury had to deliver a verdict for the claims.
McGary's previous evidence, as well as that of the two alleged victims, was played to the jury.
The appeal court accepted this put the accused man between a rock and a hard place and at a "forensic disadvantage".
It determined Chief Justice McCallum erred in refusing to permanently stay the prosecution for the first count on the basis it was an abuse of the court's processes.
"His right to silence was compromised and undermined such that if he wished to give evidence to defend the charges related to [the second alleged victim] (the rock), he had no choice but to also go into evidence in connection with the acts alleged by [the first alleged victim] (the hard place)," the published decision states.
The appeal court found tendency evidence admitted in the third trial, that two complaints meant McGary had a tendency to sexually assault intimate partners, should not have been admitted.
The tendency was "a generic statement of little or no forensic force" and did not meet a threshold of "significant probative value," the appeal court found.
This was the basis on which the guilty verdicts were set aside.
While Justice Charlesworth determined the jury's guilty verdict for the charge relating to the second alleged victim was unreasonable, the other two judges disagreed.
The two judges said the verdict indicated the jury found the woman to be "credible and reliable" in aspects of her evidence which was heard over five days.
"The jury's verdict is not to be put aside or ignored based on what may only be a difference of view about the weight, credibility or meaning of particular pieces of evidence," Justices White and Muller said.
