Appeals to the High Court

Appeals to the High Court are rare and highly unlikely to succeed, but in an appropriate case can result in the decision of the Court of Appeal being overturned

If your appeal against your sentence or conviction in the Court of Appeal was dismissed, this is not the end of your case. There is always the option to lodge an appeal to the High Court. This is the highest court in Australia and it hears appeals from all Australian intermediate appeal courts, including Western Australia’s Court of Appeal. The Court is a federal court, and its decisions are final. That is, there is no right of appeal against a High Court decision. ‘The buck stops here’ is an appropriate cliche.

While you have the option to appeal to the High Court, there is a fundamental difference between an appeal to the Court of Appeal and the High Court. That is the fact that you don’t have a right of appeal to the High Court. At the State level, assuming you have filed your appeal within the required time limit, you have a right to have your appeal heard by the Court of Appeal. This means the Court of Appeal will always hear your appeal and give a comprehensive written decision, even if your appeal is dismissed without leave being granted.

By contrast, to appeal to the High Court requires that you first obtain special leave to appeal. Without obtaining special leave, the High Court will not even hear your appeal and will dismiss it, providing a brief (usually 1-2 paragraphs) set of reasons for dismissing the application. To obtain special leave requires that you establish the criteria for special leave are met in your case.

Criteria for special leave to appeal

Technically, the High Court under the Judiciary Act 1903 (Cth) s 35A, can ‘have regard to any matters that it considers relevant’ in deciding whether to grant special leave to appeal. However, the court must have regard to the following criteria in determining special leave to appeal:

i. Whether the proceedings in which the judgment in the court below relates involves a question of law that is of public importance, whether because of its general application or otherwise

This criteria relates to the High Court only granting special leave if a question of law is involved, and one of public importance. For example, in one High Court case involving an argument about the admissibility of an accused’s unrecorded admissions to police during a break in an interview, the meaning of the word ‘interview’ in the relevant legislation was required to be resolved by the High Court. This justified a grant of special leave.

There are many other different examples but ultimately you must convince the High Court that an important legal question is involved, of public importance that is to the whole of Australia.

ii. Whether the High Court’s decision is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law

This criteria usually relates to a case in the Court of Appeal where one or more judges dissent in opinion. That is, where one judge would have allowed the appeal but two didn’t for example. If that is the case, and it relates to an important question of law, the High Court may grant special leave. However, it is fairly rare these days to see members of the Court of Appeal give dissenting judgments.

Another example is in relation to a common law principle regarding evidence, where the Court of Appeal in WA disagrees, for example, with the NSW Court of Criminal Appeal. The High Court might grant special leave in such a case to resolve the differences of opinions between the courts.

iii. whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates

This is a general criteria and can encompass a wide variety of potential scenarios. For example, even if a case does not involve a question of law, if the High Court’s decision is required to prevent a miscarriage of justice, this would still allow the High Court to hear the appeal.

Prospects of success in the High Court

The chances of being granted special leave to appeal are incredibly low. One article noted that on average about 11.8% of cases are granted special leave to appeal, and the prospects of success go up if your case goes past special leave to a full appeal hearing, but are still under 50%. Much will depend on whether the case raises an important question of law, and in many criminal cases the proposed appeal may do no more than request the High Court reconsider the Court of Appeal’s decision, which was made based on established principles. This would not result in a grant of special leave to appeal.


Having an appeal dismissed by the Court of Appeal can be devastating, given the long process of appealing in the Court of Appeal and waiting for a decision. However, this is not the end of the appellate process. While difficult and unlikely to succeed, there is always the option of seeking special leave to appeal in the High Court. If you require expert advice regarding an appeal to the High Court, contact James Jackson Criminal Defence today.

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