Gary McErvale, 61, appeared in Ballarat Magistrates Court where one charge of indecent assault without consent was dismissed by the magistrate, Angela Bolger. 

McErvale had pleaded not guilty to the charge.

Police had alleged McErvale, who was convicted in 2003 of molesting four girls under the age of seven, indecently assaulted a woman inside a facility. 

Giving evidence to the court, Detective Senior Constable Jacinta Ford said McErvale was arrested on February 7 this year after a witness allegedly saw him with his hand up the dress of another resident. 

An employee from the home giving evidence to the court said he allegedly saw McErvale indecently assaulting the woman after the first witness alerted him to what was going on.

The court heard the complainant, who cannot be named for legal reasons, is intellectually disabled and has the brain capacity of a 10-year-old.

After an almost five-hour hearing, Ms Bolger said she was left with no other option than to dismiss the charge. 

“The charge simply cannot be proved beyond reasonable doubt,” Ms Bolger said. 

While agreeing the act was indecent, Ms Bolger said the issue of consent from the complainant couldn’t be proved by the prosecution. 

McErvale’s defence lawyer Danielle Lamovie had argued throughout the hearing that consent from the complainant was an issue.

“The court heard that the complainant can express what she likes and what she doesn’t like,” Ms Lamovie said.

“There is no evidence of non-consent.”