On 1st July, amendments to the High Court’s rules took effect, including an all new Part 41 on special leave applications. Amongst other changes, the new rules consolidate the application for leave and the summary of argument into a single document (effectively halving the time for lodging all the documents from 56 days to 28 days, and subjecting the totality to a single page limit) and omit existing separate rules on unrepresented applicants and oral arguments in favour of a single rule permitting ‘any 2 justices’ to determine any applicants without an oral hearing.The explanatory memorandum states that ‘[c]onsultations on the changes have taken place with relevant professional organisations and the Special Committee of Solicitors-General.’

One result of the new rules is that there is no longer any public indication as to whether a particular applicant for special leave was represented or unrepresented (as all applications are now determined under new rule 41.08.1.) Rather, all we know is that there were:

• 32 matters determined without a hearing (2 grants, 30 rejections), heard by Nettle & Gordon JJ (10 matters), Gageler & Gordon JJ (5 matters), Kiefel & Keane JJ (7 matters), Kiefel & Nettle JJ (4 matters) and Bell & Gageler JJ (5 matters), shaking up the previous wholly geographical pairings of judges. French CJ continues to play no role in these determinations.
• 8 matters determined with a hearing (4 grants, 4 rejections), held in Brisbane (even though none of the matters heard were from Queensland.)

Although the Court’s  2016 calendar describes today is a ‘special leave date’,  no leave applications seem to be listed for determination today. Under the Court’s new approach, dedicated special leave dates are becoming a thing of the past, as, increasingly, are Court sittings in Australia’s two largest cities.

The five judgments that will now be reviewed in the second half of this year by the apex Court are: Continue reading →

In Smith v WA [2014] HCA 3, the High Court unanimously ordered the Western Australian Court of Appeal to reconsider an appeal by a man who sought to have his conviction for indecent dealing with a child set aside because of a note found in the jury room after the verdict that stated ‘I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote. This has made my ability to perform my duty as a juror on this panel’. The High Court held:

The shadow of injustice cast on the verdict by the note cannot be dismissed on the basis that the note itself and the paucity of evidence of its provenance are insufficient to create a suspicion that, as a matter of fact, the author of the note was overborne in the performance of his duties as a juror.

The Court observed that the identity of the author could be readily discerned, the note’s true meaning could be readily resolved by asking the author, that a wide-ranging and intrusive inquiry would not ‘necessarily’ follow and that the practicality of any inquiry, given the time since the early 2012 trial, is a matter for the Court of Appeal. Nearly two-and-a-half years later, a judgment published today by the WA court reveals how these predictions played out and how the appeal stands (for now.) Continue reading →