High Court lawyers Doogue + George

The High Court of Australia is the final court of appeal in the Australian court system. It sits above all state and federal courts and its decisions are binding on all other Australian courts. In criminal matters, the High Court is rarely the court that determines a case , the overwhelming majority of criminal proceedings are finalised in state courts. However, in exceptional cases involving questions of law of significant public importance, the High Court may be asked to determine a criminal appeal.

The High Court’s Criminal Jurisdiction

The High Court has a wide jurisdiction across a number of areas, including:

Cases involving the interpretation of the Australian Constitution
Cases where the Court is asked to reconsider one of its previous decisions
Cases where the Court considers the principle of law involved to be of major public importance
Appeals from state Courts of Appeal and the Federal Court of Australia

As criminal lawyers, the most common circumstances in which we appear before the High Court are appeals from the Victorian Court of Appeal (Criminal Division). These arise where a significant question of law remains unresolved following the Court of Appeal’s decision, and the parties seek to have that question determined by the nation’s highest court.

What Is Special Leave?

Appealing to the High Court is a two-step process. An appeal does not proceed to the High Court as of right , a party must first obtain special leave to appeal from the High Court. Special leave is the permission of the High Court to have the appeal heard. The criteria for granting special leave are set out in s 35A of the Judiciary Act 1903 (Cth). The High Court may grant special leave where the case involves a question of law that is of public importance, or where the interests of the administration of justice require the appeal to be heard. The overwhelming majority of special leave applications fail. In the latter half of the 2010s, only approximately 10 per cent of applications were accepted by the Court and proceeded to a further hearing.

How Does the Special Leave Process Work?

The High Court revised its special leave process in late 2023. Under the current process: Step 1 – Consideration on the papers All special leave applications are first considered on the papers by the full court. The justices meet on the first Monday of each sitting period to consider applications, and publish their decisions on the afternoon of the first Thursday of that sitting period. Step 2 – Oral hearing (if required) In the rare case where the justices are unable to determine the application on the papers, a hearing before a bench of three justices will be listed. In special leave applications where an oral hearing does occur, parties are subject to a strict 20-minute time limit for their oral submissions. These submissions are usually supported by written submissions provided in advance. The 20-minute limit is strictly enforced. Decision The High Court’s decision on a special leave application is final. If special leave is refused, there is no further avenue of appeal. If special leave is granted, the matter proceeds to a full appeal hearing before the Court.

Grounds for Special Leave in Criminal Matters

In a criminal appeal from the Victorian Court of Appeal, the most common grounds on which special leave may be sought include:

The Court of Appeal erred in its interpretation of a legal principle and the correct interpretation is of significant public importance
The Court of Appeal’s decision is inconsistent with decisions of other state Courts of Appeal and the High Court needs to resolve the inconsistency
The decision raises a constitutional question
There has been a substantial miscarriage of justice and the interests of the administration of justice require the High Court to intervene

Special leave is not granted merely because a party disagrees with the Court of Appeal’s decision or because there may have been an error , the case must raise a question that goes beyond the interests of the individual parties.

Time Limits for Filing a Special Leave Application

Time limits apply to filing a special leave application. In criminal matters, an application for special leave to appeal must be filed within 28 days of the decision of the Court of Appeal being appealed. Extensions of time may be sought in appropriate circumstances but are not guaranteed. Given the strict time limits, it is essential to obtain legal advice as soon as possible after the Court of Appeal delivers its decision if you are considering a High Court appeal.

The Role of Written Submissions

Written submissions play a central role in the special leave process. Both parties must file written submissions setting out the grounds on which special leave should be granted or refused. These submissions must be concise and focused , the High Court expects parties to identify precisely the question of law said to be of public importance and to explain why the Court of Appeal’s treatment of that question was wrong. The quality of written submissions is critical. In many cases, the decision on special leave is made entirely on the papers without any oral hearing. Experienced appellate lawyers with High Court experience are essential to preparing submissions that give the application the best prospect of success.

The High Court’s Location

The High Court of Australia is headquartered in Canberra. It also sits in Sydney, Melbourne, and other capital cities. Most special leave applications from Victoria are heard in Melbourne or Sydney, or decided on the papers in Canberra. High Court of Australia Registry (Melbourne) – 305 William Street, Melbourne VIC 3000

Frequently Asked Questions

Can any criminal conviction be appealed to the High Court?

No. An appeal to the High Court requires special leave, which is only granted where the case raises a question of law of public importance or where the interests of the administration of justice require the appeal to be heard. The vast majority of special leave applications are refused.

How long does the special leave process take?

Applications are considered at each sitting period. The process from filing to decision can take several months depending on the volume of applications and whether an oral hearing is required.

Is the High Court’s decision on special leave final?

Yes. If the High Court refuses special leave, there is no further avenue of appeal. The decision of the Court of Appeal stands.

What happens if special leave is granted?

The matter proceeds to a full appeal hearing before the High Court, usually before five or seven justices. The parties file written submissions and present oral argument. The High Court may allow the appeal, dismiss it, or remit the matter to the Court of Appeal for reconsideration.

How often does the High Court hear criminal appeals from Victoria?

Criminal appeals to the High Court are rare. The Court hears a small number of criminal matters each year from across Australia, and only those that raise questions of genuine public importance.

If you are considering a High Court appeal in a criminal matter, contact Doogue + George Defence Lawyers on 03 9670 5111. High Court appeals require specialist expertise and should be discussed with an experienced criminal lawyer as early as possible.