This week, one of the most-watched criminal cases in the nation’s history reached the apex court, albeit in a somewhat confusing way. As reported by journalists on Monday and confirmed on the Court’s webpage late on Tuesday, George Pell’s application for special leave to appeal from the Victorian Court of Appeal’s dismissal of his appeal against a jury’s verdict was listed for orders on Wednesday morning. In line with the Court’s current practice of determining most special leave applications ‘on the papers’, there was no oral hearing. However, while the other twenty or so matters listed for orders that morning had their applications dismissed without comment, Gordon J made the following statement in relation to Pell:

In this application, Justice Edelman and I order that the application for special leave to appeal to this Court from the judgment and orders of the Court of Appeal of the Supreme Court of Victoria given and made on 21 August 2019 be referred to a Full Court of this Court for argument as on an appeal. The parties will be made aware of the directions necessary for undertaking that hearing.

The media (understandably, in my view) initially reported that the High Court had agreed to hear Pell’s appeal. It was only when the transcript was published online that it became clear that something different had happened.

Justice Gordon and Edelman’s order was to have Pell’s application for special leave heard before an appeal-sized bench (either five or seven justices), rather than the usual special-leave-application-sized bench (two or three justices.) Continue reading →