Instructions for Appealing to the High Court of Australia

Instructions for Appealing to the High Court of Australia

INSTRUCTIONS FOR APPEALING TO THE HIGH COURT OF AUSTRALIA

In order to appeal to the High Court of Australia against a judgment of the Court of Criminal Appeal you will first need to apply for special leave to appeal to the High Court. Set out below is the procedure involved in applying for special leave to appeal to the High Court. You will note in paragraph 5 below that if an application for special leave to appeal is filed outside the 28 day time limit then the application should include an application for an order that compliance with the 28 day time period be dispensed with.

  1. The applicant files an application seeking special leave to appeal against a conviction and/or sentence imposed by the Supreme Court of the Northern Territory and upheld by the Court of Criminal Appeal of the Northern Territory. The application is for special leave to appeal against the judgment of the Court of Criminal Appeal.
  1. Attention is drawn to Section 35A of the Judiciary Act 1903 (Cth) and emphasise that special leave to appeal is granted only in those cases where a question of law of public importance arises or where the interests of the administration of justice require consideration by the High Court of the judgment below. The High Court is not a Court of Appeal in the ordinary sense.
  1. The provisions of Order 69A of the Rules of the High Court of Australia relate to applications for special leave. The application must be in the form numbered 61 in the First Schedule to the High Court Rules. The application must specify the date of judgment of the Court of Criminal Appeal and the grounds upon which the applicant seeks leave to appeal. The application must also specify the orders sought in lieu of the orders of the Court of Criminal Appeal.
  1. The application shall be filed together with the following documents:

a)the order (or notification of result) of the Court below;

b)the reasons for judgment of the Court below;

c)the indictment, the summing-up or charge and, if the application involves a question of sentence, the judge’s remarks on sentencing; and

d)such other documents, if any, as are necessary for the proper determination of the application (Order 69A subrule 2(2) of the High Court Rules)

  1. The application should be filed within 28 days from the date when the judgment wishing to be appealed from was handed down. If that 28 day period has already expired the application should also seek an order that compliance with Order 69A subrule 3(1) of the High Court Rules be dispensed with. The application must be filed in the office of the Registry of the High Court at the Supreme Court, State Square, Darwin (Order 69A subrule 3(3)). Moreover, it must be filed in person, ie. by someone actually attending the office of the Registry at the Supreme Court in Darwin.
  1. A copy of the application and the documents filed pursuant to Order 69A subrule 2(2) must be served on each respondent within 7 days after filing the application. A copy of the application must be provided to the Registrar of the Court of Criminal Appeal within 7 days after filing the application (Order 69A subrule 4(2)).
  1. Within 28 days after filing an application the applicant must file and serve a summary of argument (Form 62) and draft notice of appeal (Form 65) on any party who has filed an appearance. Within 21 days after service of the applicant’s summary of argument the respondent must file and serve a summary of argument (Form 62A). A summary of argument (whether filed by an applicant or by a respondent) must not exceed 10 pages in length and must be signed by the legal practitioner or party presenting the argument.
  1. An applicant may, within 7 days of service of a respondent’s summary of argument, file and serve a reply not exceeding 5 pages in length.
  1. After the parties have filed their summaries of argument the applicant must prepare an application book for the use of the Justices. The application book must be in the form as set out in Order 69A and Order 70 of the High Court Rules. A Registrar must settle an index to the contents of the application book. The book should contain only the material which is relevant to the special leave point. In the majority of cases this means the Indictment, the trial judge’s charge to the jury, the reasons for judgment of the Court of Criminal Appeal and the application and supporting material filed in the High Court. If transcript of evidence is to be included, it must only relate to the point in issue on the application.
  1. Once the application book has been prepared seven (7) copies must be filed in the Court and a further three (3) copies must be served on the respondent or the solicitor for the respondent.
  1. A fee of $63.00 is payable when the application is filed. However, Regulation 4 of the High Court of Australia (Fees) Regulations provides that the fee is not payable if a person is an inmate of a prison or is otherwise lawfully detained in a public institution.

There are no printed forms and an applicant must prepare his or her own documents in accordance with the Rules.

Attention is drawn to Order 69A subrule 13(1) which provides for the abandonment of an application where the applicant fails to comply with Order 69A subrules 4(1), 4(2), 6(1) or 10(9) within 6 months after filing the application.

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