Pryor v The Queen [2004] HCATrans 15 (13 February 2004)

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Pryor v The Queen [2004] HCATrans 15 (13 February 2004)

Last Updated: 20 February 2004

[2004] HCATrans 015

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S127 of 2003

B e t w e e n -

JOHN MARK PRYOR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2004, AT 11.30 AM

Copyright in the High Court of Australia

MR J. PRYOR appeared in person.

MR G.E. SMITH: I appear for the respondent, if the Court pleases. (instructed by the Solicitor for Public Prosecutions (New South Wales))

McHUGH J: Yes, Mr Pryor.

MR PRYOR: I would like to lodge an appeal over my conviction of maliciously setting fire to a dwelling in 1984.

McHUGH J: Yes.

MR PRYOR: The main part of my appeal is based on the fact that the crime scene investigator did not take an actual photo of the damage to the premises.

McHUGH J: Well, can I just explain some legal matters to you, Mr Pryor. We do not take any new evidence. The only orders we can make are the orders that the Court of Criminal Appeal should have made on the evidence before it, and it has held that it had no jurisdiction that the law prevented it from hearing any appeal because of the finding of the jury. So that makes it extremely difficult. In fact, unless you can show that the court had jurisdiction there is very little, if anything, we could do.

Your other problem is that we do not take fresh evidence. We have not taken fresh evidence in over 100 years, and it is the rule that we do not take fresh evidence. Your third difficulty is that your application is nearly 20 years out of time. I do not think in the history of the Court we have ever granted leave so far out of time. But they are the three problems that you have, and you have to face. Then the other problem is that this Court only takes a very few cases each year. There are hundreds of thousands of cases decided in Australia each year and a case has to be very special for us to give leave.

So I have told you those things. Now, you proceed, but you have very great difficulties in the law in lodging an appeal in this Court, Mr Pryor. I understand your complaint. Your complaint is that the solicitor and the Queen’s Counsel, Mr Byron, who appeared for you, had no authority to run this defence of mental illness or to call these witnesses. That is your principal complaint, is it not, or that is one of your complaints?

MR PRYOR: Yes. About two months before I was released from custody I went out to my parents’ place and sort of – I had a look at the damage, the crime scene. It had been untouched except for a new piece of corrugated iron on the roof. It was quite clear that Senior Constable James McGow at
the time did not take an actual photo of the damage. He took low-exposure shots of the opposite wall, giving everybody the impression that the house suffered serious damage. In fact, it was minor damage. I was never granted bail to gather my own evidence at the time, so basically had no defence except for the defence of mental illness. I spent seven years in gaol over this.

McHUGH J: Was it gaol or - - -

MR PRYOR: Well, seven years in custody. I did not - - -

McHUGH J: In custody, yes. Well, you see, we are just not here to remedy every injustice. It is not our jurisdiction. We are bound by the law just as you are. The New South Wales Parliament has said that once there is a finding of mental illness you cannot appeal to the Court of Criminal Appeal. If you cannot appeal to the Court of Criminal Appeal, then there is nothing we can do about it. We can only do what the Court of Criminal Appeal could do, and the Court of Criminal Appeal said they had no jurisdiction. Do you - - -

MR PRYOR: Yes, I understand that.

CALLINAN J: And it is a not guilty verdict too, Mr Pryor.

McHUGH J: So you have never been found guilty. I know it must irk you that it is not guilty on the ground of mental illness, but it is not as if you have a conviction against you. You have been found not guilty.

MR PRYOR: The reason I lodged this appeal, this application for leave to appeal was because the Health Department had been sort of very vindictive towards me over this.

McHUGH J: Well, you have your rights of action. If any government authority steps outside the law, well, you will have your remedies against them.

CALLINAN J: And you have the Ombudsman, too.

MR PRYOR: Yes.

McHUGH J: You just compose yourself. Do not get upset. There is not really anything we can do for you. That is the problem.

MR PRYOR: Yes, I accept that, your Honour.

McHUGH J: Thank you, Mr Pryor. We need not hear you, Mr Smith.

In this matter Mr Pryor seeks special leave to appeal against a verdict given nearly 20 years ago. He was found not guilty of the offence with which he was charged on the ground of mental illness. He complained to the Court of Criminal Appeal that the counsel who appeared for him and his solicitor had no authority from him to run that defence. The Court of Criminal Appeal held that it had no jurisdiction by reason of the relevant legislation, but went on to find in any case that there was no miscarriage of justice.

So far as this Court is concerned, we could only make the same order as the Court of Criminal Appeal. We cannot hear any fresh evidence. In those circumstances, a grant of leave would be futile. Accordingly, the application to extend the time is refused and the application will be dismissed.

Thank you very much, Mr Pryor.

AT 11.38 AM THE MATTER WAS CONCLUDED