Brady v The Queen

This matter concerns an application for special leave to appeal to the High Court of Australia by the applicant, Brady, against the decision of the Court of Criminal Appeal of New South Wales. The Court of Criminal Appeal had allowed Brady's appeal against his conviction for sexual intercourse without consent and directed that there be a new trial. The application to the High Court was made out of time, approximately six months after the Court of Criminal Appeal's judgment.

The central legal issue before the High Court was whether the Court of Criminal Appeal, having allowed an appeal on one ground, had a duty to exercise its discretion regarding the grant of a new trial. Specifically, the applicant argued that the Court of Criminal Appeal should have considered whether the verdict was unsafe and unsatisfactory, even though the appeal had succeeded on another ground, to determine if the evidence was sufficiently cogent to justify the conviction and, consequently, whether a new trial was warranted.

The applicant's submission was that the judgment of the Court of Criminal Appeal did not demonstrate that it had undertaken this exercise of discretion. Instead, it was argued that the Court of Criminal Appeal appeared to have effectively delegated the decision on whether to grant a new trial to the Director of Public Prosecutions. The High Court was therefore asked to consider the duty of the Court of Criminal Appeal in such circumstances.