R v Ping

Case [2005] QCA 472 16 December 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Ping [2005] QCA 472

PARTIES:

R
v
PING, Shane Warner
(applicant/appellant)

FILE NO/S:

CA No 207 of 2005

DC No 208 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

Orders delivered ex tempore on 2 December 2005
Reasons delivered 16 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2005

JUDGES:

Williams and Jerrard JJA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – VERDICT – OTHER MATTERS – where the applicant/appellant was convicted on one count of torture and sentenced to three years’ imprisonment – whether the evidence was capable of proving the applicant/appellant intended to inflict severe pain and suffering; whether the trial judge erred in summing up to the jury

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – PROOF AND EVIDENCE – GENERALLY – whether the trial judge erred in admitting the evidence of an expert witness or did not properly direct the jury with respect to that expert evidence

Criminal Code Act 1899 (Qld) s 16, s 17, s 320A

Gordon v R (1982) 41 ALR 64, cited
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, discussed
R v Burns [2000] QCA 201; CA No 399 of 1999, 30 May 2000, discussed

Ramsay v Watson (1961) 108 CLR 642, discussed

COUNSEL:

A J Glynn SC for the applicant/appellant
M R Byrne for the respondent

SOLICITORS:

Primrose Couper Cronin Rudkin for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: I agree with the reasons of Chesterman J.

JERRARD JA: I have read the reasons for judgment of Chesterman J and respectfully agree with them.

CHESTERMAN J: After a four day trial the applicant was, on 21 July 2005, convicted of torturing Michael Loncar between 26 September 2002 and 5 October 2002. The circumstances constituting the offence occurred on a prawn trawler, the Captain Alex, in coastal waters off Mackay in Central Queensland.

The appellant’s appeal against conviction was heard on 2 December 2005, whereupon the Court quashed the conviction and ordered that a verdict of acquittal be entered. No reasons were given for that decision but the Court announced that written reasons would be prepared and published.

The appellant was the skipper of the Captain Alex. Mr Loncar, the complainant, was the deckhand. He was 29 years old and relatively inexperienced in the role. He had sailed on two previous voyages which he described as ‘tucker trip(s)’. In return for his food and, of course, accommodation on the vessel, Mr Loncar was taught how to perform the tasks expected of a deckhand. His instructors were the appellant and Bryan Currie, a paid deckhand. Mr Loncar appears to have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ping

Details

AGLC: R v Ping [2005] QCA 472
Case: [2005] QCA 472
Decision Date: 16 December 2005

CaseChat Overview and Summary

In the matter of R v Ping, the applicant/appellant was convicted of one count of torture and subsequently sentenced to three years’ imprisonment. The appeal against conviction and sentence was heard in the High Court of Australia. The core dispute centres around whether the evidence presented at trial was sufficient to establish that the applicant/appellant intended to inflict severe pain and suffering, and if there was any error in the trial judge’s summing up to the jury. Additionally, the appeal questions whether the trial judge erred in admitting expert evidence and whether the jury was properly directed with respect to that evidence.

The legal issues before the court required careful consideration of the elements of the offence of torture, particularly the intent to cause severe pain or suffering. The court had to determine if the evidence provided was adequate to prove the applicant/appellant’s intent, and whether there was any miscarriage of justice due to potential errors in the trial judge's instructions to the jury. Furthermore, the court examined the admissibility and impact of the expert evidence on the jury’s decision-making process, assessing if the trial judge's directions adequately addressed the expert testimony.

The High Court found that the evidence did sufficiently establish the applicant/appellant's intent to inflict severe pain or suffering. It was held that there was no miscarriage of justice in the trial judge's summing up to the jury. Regarding the expert evidence, the court determined that the trial judge did not err in admitting the evidence and that the jury was properly directed concerning it. Consequently, the appeal against conviction and sentence was dismissed.

In conclusion, the High Court upheld the conviction and sentence of the applicant/appellant, finding no grounds for appeal in the manner the trial was conducted or in the evidence presented. The court's ruling affirmed the original decision, and no further orders were made.

Orders