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.) While their terse words left many baffled, the process was clearly explained by Heydon J in an oral hearing a decade ago as follows:
We are of the opinion that the application for special leave should not be decided now, but that the matter should be referred into a Full Court of this Court to be argued, as if it were an appeal. One possibility is, as the argument develops, that it might be decided not to grant special leave. Another possibility is that the whole argument is heard and then either special leave is revoked or granted and the appeal allowed. So that is what we would propose and we would reserve today’s costs.
Or, as the same judge explained it more colourfully to counsel in another referred application in 2010:
MR SVEHLA: I accept that, but your Honours have to realise that there is – – –
HEYDON J: You do not have special leave. The trapdoor could open at any moment.
MR SVEHLA: I understand, your Honours. It might be a good thing.
On my (likely incomplete) count, the trapdoor opened on six similar referrals in the past decade. However, I counted a further twenty-two in the same period where the referred hearing proceeded very much like a regular appeal, with the Court hearing full arguments, reserving judgment and then announcing a grant of special leave along with its decision on the appeal.
The referral of Pell’s application for special leave to appeal to an appeal-sized bench is a blast from the Court’s more carefree past. For much of the institution’s existence, through to the early 90s, the judges used to refer all the time, without any thought. But, in recent decades, increasing workloads prompted a new routine and it became a rarer part of the judges’ life, occurring every couple of months (although, sometimes, they did it twice, even three times, in a morning.) Then, after three disappointing referrals in a row in 2014, the judges simply stopped referring. Only Gordon & Edelman JJ know what prompted them to break a nearly five-year drought this Wednesday. Perhaps even the judges don’t know whether this is a new phase or just a confusing one-off reminiscence.
Pell’s lawyers present their appeal arguments to a full bench, the prosecution presents their arguments, and then the full bench can:
a)decide not to hear the appeal and Pell serves his full sentence
b) decide to hear the appeal (which has been presented already) following which they may:
i) sustain the appeal,quash the conviction, and set Pell free
ii)reject the appeal,giving reasons, and Pell serves his whole sentence
iii)order a retrial
iv)refer the matter back to the Victorian Supreme Court for reconsideration
Have I got that right???
Not (iii) or (iv), unless the appeal grounds are formally changed.
With the HC intending to hand down a judgment in the Pell matter next week, it is perhaps time to mull over again what is happening. Pell sought special leave to appeal. A partial bench of the HC referred the application for leave to the Full Bench, with the application for leave to be argued “as on appeal”. As a layperson, one might have expected that if the Full Bench next week does grant Pell leave to appeal, Pell would at least be given the opportunity to make a further submission if he wished. It would seem potentially a denial of justice to grant leave to appeal but not allow the appellant to make any submission in the consequent appeal, with the appeal to be decided on what was submitted previously in arguing for special leave, notwithstanding the Court having ordered the application for specal leave be argued “as on appeal”.
I am not suggesting Pell would have more to submit or argue once he knew he had been granted leave to appeal but what if he did?
I disagree. Pell was given every opportunity to argue what should happen if leave was given – it doesn’t matter that he didn’t know whether leave would be given. There is however some room to argue that he was not given a full opportunity to argue that leave should be given, because no justice asked Walker or Judd anything about that. Not a strong argument, but one that suggests to me that, by the time of the hearing, leave was always going to be granted.
And I think you explained it very well on TV too, Jeremy — I happened to be at home on my lounge watching you. And even the Fin Review has I think affirmed you without further inquiry.
I think Kirby J once observed to counsel in the High Court that something was so, because he had seen it on the television.
Has there, in the past, been any pattern to the types of special leave applications which are referred to a Full Court? It doesn’t seem like it to me, but I have not examined them all one after the other. It is more just an impression thing over time.
I don’t think the course they have taken will produce any different result at the end of the day. Don’t forget there are cases where special leave has been granted and, during the appeal questions are raised about whether leave should have been granted, and the special leave is revoked.
As to Pell’s prospects, the judgment in Fennell v The Queen, on 6 November 2019, gives him some hope-the Court found in that case that the verdict was unreasonable.