News: Reading the special tea leaves

We are now nearly two months into the High Court’s new process for determining special leave applications. Pending a fuller review after Friday’s hearings, a potential pattern has emerged that may reveal, a day in advance of the Court’s formal ruling, whether cases that have been listed for orders without an oral hearing will be granted special leave. If correct, then that means that there is a sign this evening that special leave will be granted tomorrow morning in the high profile appeal by Queensland prosecutors against an appellate ruling by that state’s Court of Appeal reducing Gerard Baden Clay’s conviction for murder to manslaughter.

The possible sign is in the publication on the Court’s website of a list of matters scheduled for pronouncement of orders the following day. Last Wednesday evening, the Court published a list of fifteen cases for ‘pronouncement of orders’ the next morning, and all but three of those were also listed for  ‘publication of reasons’. When the orders were published last Thursday, 12 of them had their applications dismissed (with the Court’s current standard of very terse reasons published on Austlii the next day) while three (representing two cases under appeal) had the applications granted (with transcripts of the even terser hearings later published on Austlii, but with no published reasons.) Crucially, those three were the same three that were not listed for publication of reasons (and this makes some sense, given that the Court’s practice of never giving any reasons at all for granting an application for special leave.) While it’s still very early days in the Court’s new process, the possible upshot is that the advance listing of such cases includes an indication of which ones will be dismissed and which will be granted (or at least dealt with in some way other than a dismissal.)

And that brings me to a prediction (my second this week, after my very non-daring prediction this morning about the senators’ constitutional challenge.) This evening’s listing of fifteen cases for pronouncement of orders tomorrow includes fourteen for ‘publication of reasons’ (and, if I’m right, then those matters will be denied leave.) The sole exception:


We’ll see tomorrow if my prediction – that this matter will not be dismissed and may well proceed to a full court hearing in August or so – is correct. If this pattern continues, then it will mean people who know how to interpret the Court’s website listings will have about sixteen hours’ advance knowledge of the Court’s public orders.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

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