Accused of murder, man set free



Apr 28, 2009 12:13 PM
Bob Mitchell
Staff Reporter

In a rare decision, a 23-year-old man, initially charged with murder, has had all charges withdrawn because forensic evidence and a polygraph test points to him being sexually assaulted by the man he was accused of killing.

In November, Peel Crown prosecutor Steve Sherriff reduced the murder charge to manslaughter because the evidence indicated that Brady Maher was extremely intoxicated when the deadly struggle in a Mississauga apartment building took place.

Today, Sherriff wiped the slate clean for Maher, who lives in Perth but was working with his father in Mississauga when the killing occurred in the early hours of July 11, 2008.

The identity of the deceased man isn't being revealed under an agreement to allow the Star to publish a full account as to why the charges were withdrawn.

"If I were sitting on a jury trying this case, I would acquit this defendant," Sherriff said in a six-page document detailing why he chose to withdraw all charges.

This morning, Sherriff told Justice Federick Campling that Maher "was innocent."

Evidence suggested he never used excessive force to defend himself from a sexual assault, Sherriff said.

Lawyer Paul O'Marra said outside the Brampton courtroom that his client was relieved. Maher was released from custody last year and wasn't in court for today's decision.

"He's dealing with it but it will take a long time, if ever, for him to get over this ordeal."

Sherriff  believed he needed to be "accountable" for his decision, which is why he provided the court with the lengthy analysis.

The deceased man, 53, was found in the hallway outside his Mississauga apartment on Queen Frederica Dr. He died during a brief struggle with Maher, who was extremely intoxicated.

Sherriff said the sexual persuasion of the victim and accused, normally not important to most cases, is relevant to this homicide. The deceased man was a homosexual. Maher is a heterosexual married man with a young child.

Maher was found by police in the lobby of a nearby apartment building wearing only his underwear. He had bloody hands, smelled of alcohol and insisted he was in Kingston, not Mississauga.

He was covered in grass clippings. His face was injured. There were scratches on his body.He was arrested for public intoxication. Police weren't aware of the homicide.Maher's clothing was later discovered in the deceased accountant's apartment.

Sherriff decided to downgrade the original murder charge to manslaughter.

"...this bizarre situation of extreme intoxication was not faked or contrived or the result of drinking after the homicide," Sherriff said.

"It all adds up to a disoriented exit from the homicide scene by an extremely intoxicated defendant."

Sherriff said he would have prosecuted Maher for manslaughter had it not been for further forensic and pathological information.

"Extreme intoxication is not a defence for manslaughter," Sherriff said.

But it does render a defendant not guilty of murder because the defendant "lacks the necessary intent to kill..."

No cause of death was ever determined but Sherriff said that wasn't the major reason behind his decision.

A pathologist theorized the deceased man experienced a concussion in combination with acute alcohol intoxication. His alcohol blood level was 199.

"None of the injuries taken by themselves or in combination would have caused his death," Sherriff said. "In the end, the pathologist was of the opinion that blunt force head trauma in combination with acute alcohol intoxication probably caused his death but he wasn't sure."

A neuropathologist said there is a risk of "sudden death" for people intoxicated who suffer head or neck injuries.

Sherriff said it was "significant" that none of the victim's injuries indicate an attempt to kill or maim. There was trauma to his left ear, consistent with being struck by Maher's elbow, which had extensive bruising.

Once sober, Maher told police he'd been sexually assaulted by the deceased man.

He claimed he woke up in the man's apartment and found him performing fellatio on him. He never remembered hitting him, only getting away and out of the apartment.

The victim's DNA was found on Maher's penis, Sherriff said.

He said the DNA established the sexual act but didn't establish whether it was consensual.

But Maher conclusively passed a polygraph test about whether he ever had previous sex with a man and whether he remembered the incident.

Police found homosexual pornography VCR tapes in the apartment, Sherriff said.

"It does not make sense there was consensual sexual activity between these two men," Sherriff said. "There would have been no struggle.

"It's more likely there was some sort of miscommunication, the deceased perceiving there would be consent, yet Maher having no such intentions. The fact both men were highly intoxicated would have increased the prospect of recklessness and or miscommunication."

A potential defence witness revealed he was previously proposition with sex by the deceased man when he went to his apartment on an earlier occasion.

"Under these unique circumstances, we are unable to disprove that Maher was sexually assaulted as he claimed," Sherriff said. "Indeed, the weight of the evidence supports his claim that he passed out and came to his senses to find the deceased man performing fellatio upon him."

Sherriff said the law is clear; a person who is physically assaulted is entitled to resist by force.

It was his view there was no evidence to suggest Maher resisted with any "overkill" and his resistance wasn't excessive.

"The circumstances described by the defendant would be alarming and repulsive and would justify immediate violent extrication," he said.

"The injury to the defendant's elbow and the deceased man's ear is consistent with Maher using force to escape the situation," Sherriff said.

His clothing being left inside the apartment suggest an escape and the struggle appears to have taken place in the hallway, Sherriff said.

Based on all the evidence, Sherriff told the court there was no reasonable prospect of a conviction.

"In my view, the death resulted from an unfortunate fluke of pathological circumstances," Sherriff said. "The intoxication of both parties likely contributed to the miscommunication, which appears to be the root of this tragedy."