Appeals can be brought to the High Court of Australia by the Director of Public Prosecutions (DPP) or a convicted offender from a decision of the Court of Appeal.

When does the DPP appeal to the High Court?

The DPP institutes, prepares and conducts, on behalf of the Crown, proceedings in the High Court in relation to indictable offences. The DPP may appeal to the High Court from a decision of the Court of Appeal relating to either a conviction or a sentence.

Before instituting an appeal to the High Court, the DPP considers the criteria to which the High Court must have regard, including whether:

  • the matter involves a question of law of public importance, or
  • the matter involves a question of law requiring final resolution, and
  • the interests of the administration of justice require consideration of the matter by the High Court.

If the DPP institutes an appeal to the High Court, an application for Special Leave to Appeal is prepared, signed by the Solicitor for Public Prosecutions, and then filed, with supporting material, in the High Court Registry. Copies of these documents are served on the person to whom the appeal relates. Legal representatives of that person then prepare material in response and file that with the Court Registry. The matter is then listed to be heard, as an application for Special Leave to Appeal. This is usually heard in Melbourne, before two or three Justices of the High Court. The decision to grant or refuse Special Leave to Appeal is usually made on the day of the hearing. 

If Special Leave to Appeal is granted, further material is prepared and filed by both parties. If the appeal raises constitutional issues, notice of the appeal and of the constitutional issues is given to the Attorneys-General of the Commonwealth of Australia and of all the States and Territories of the Commonwealth. They may decide to file material in the appeal, and to appear on the appeal and to put submissions to the court as to the appropriate outcome of the appeal.

The hearing of the appeal is then listed in Canberra before five justices, although sometimes all seven justices of the High Court sit to hear an appeal.  When the appeal is heard the Court is most likely to reserve its decision, which means it will give its decision and reasons at a later date.

If the High Court allows an appeal, the court may quash the decision of the Court of Appeal, or uphold it, or uphold only parts of it.

The DPP also responds to appeals to the High Court by a convicted offender who is dissatisfied by a decision of the Court of Appeal. The process to be followed is essentially the same, but with the roles reversed.