Commissioner of Police v Brady

The Commissioner of Police appealed a decision of the trial judge concerning the admissibility and weight of expert medical evidence. The dispute centred on whether the trial judge had erred in law when exercising discretion under section 136 of the *Evidence Act 1995* (Cth) and in his assessment of the expert evidence. The appeal was heard by the Court of Appeal.

The primary legal issues before the Court of Appeal were whether the trial judge had misapplied his discretion under section 136 of the *Evidence Act 1995* by finding, "with great reluctance," that there was a "fair climate for the acceptance of the views" of certain medical experts, and whether this constituted an error of law. Additionally, the court considered whether the trial judge erred in finding that the appellant should have cross-examined the medical practitioners, and whether this involved applying the wrong test or misinterpreting the evidence.

The Court of Appeal held that an exercise of judicial discretion can only be challenged as erroneous in point of law if the judge acted upon a wrong principle, allowed irrelevant matters to influence the decision, made a mistake of fact, failed to consider a material consideration, or if the decision was unreasonable or plainly unjust, as per *House v The King*. The court clarified that the appellant's contention that the trial judge confused the operation of section 136 with the principle in *Makita v Sprowles* was unfounded. The principle in *Makita* concerns the need for expert opinions to be based on identified and proved facts, and the appellant's complaint that certain historical facts were not disclosed to the experts related to the weight of the evidence, not an error in law. Furthermore, the trial judge's comment about the failure to cross-examine was not a finding that the onus had shifted, but rather a comment on the state of the evidence given the appellant's conduct of the case.

The appeal was dismissed with costs.