R v Ping [2005] QCA 472

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 performed satisfactorily on the two voyages and he was engaged by the appellant as a paid deckhand for a third voyage. It was on this voyage that he claimed to have been tortured by the appellant.

The complainant described the duties of a deckhand:

‘Getting all the nets ready and … going out on the booms … when the booms get released down … getting everything ready for [the night’s trawling]. Sorting prawns … cleaning up … hosing down … cleaning cuttlefish … packing away … prawns [sorting] squid, fish, bait … [packing] fish into cardboard boxes, making up boxes … to put the prawns in … cleaning up … round the deck …’.

He thought that a deckhand was engaged in ‘a fairly complicated sort of business’.

The Captain Alex left Mackay Harbour on 23 September 2002. The only crew were the appellant and the complainant. The complainant could not swim and he had told the appellant of that inability. A few days into the voyage, on 25 September 2002, the Captain Alex was boarded by water police officers on a routine patrol. Mr Loncar made no complaint about the appellant’s conduct before their encounter with the water police. The complainant gave evidence of a number of incidents on the voyage which were said to constitute the acts of torture. He could not remember the sequence of the events he described, although he remembered that the first week of the voyage ‘was fine’. The appellant, he said, became angry and violent ‘just near the end there’.

The complainant was a laconic witness. This is his account of the torture:

‘… [A]fter the Water Police left, how did things go between the two of you …? - … I started getting a bit … jumpy and all that, forgetting things to do … what I was taught to do, I was starting to lapse down and forget how to do things … because … going out there [I] was just trying to get used to things that I should have remembered, but I started to slacken off a little bit.

… It wasn’t that good at all [the day after the water police left] … because [the appellant] started getting angry with me, because I was forgetting things that I should have learnt, should have known what to do.

What was the first thing you remember … that he got angry about? – Just not tying up the cod ends [of the fishing nets].

What happens if you don’t tie the cod ends up properly? – The prawns will get out of the net.

And did that occur …? – Yes.

What happened …? - … [W]e brought the nets back up because I didn’t actually have it properly tied. … [The appellant] just got angry with me.

… [W]hat happened that night? - … [H]e grabbed me … [f]rom the front, like, under the shirt … [H]e used an open hand and hit me around the head part … [a]nd the mouth. Drew blood.

How many times did he hit you? – I’m not sure. … Two or three [times]. I’m not real sure.

Did he say anything to you …? – Yes. He said “Michael Loncar, you’re nothing but a stupid cockhead.” ...

Now that night, … where did you sleep? - … Outside on the boat … [b]ecause [the appellant] said he wasn’t ready enough to see me so I stayed out there for the night.’

I interrupt the narrative to point out that the evidence last rehearsed is probably false. There was evidence that the Captain Alex, in common with all prawn trawlers, spent the night trawling the prawn grounds. Both skipper and deckhand would work throughout the night and get what sleep they could during the day after they had attended to their respective duties of cleaning, cooking and packing prawns, cleaning the vessel and preparing for the next night’s fishing.

The complainant’s evidence continued:

‘… [W]hat … generally happens with the prawns after they’re caught …? – [Y]ou cook then, sort them; … you cook them up and pack them and put them in a snap … freezer. … [T]hat’s my job as a deckhand.

And did you get that right, stacking … the freezer? – No, I did not because [the appellant] … wasn’t happy with me. He woke up and … called me names like “stupid cockhead” and all that because I didn’t have them stacked properly.

Did he do anything? – Yes, he hit me … [a]round the face … then [he] went and … grabbed me [at] the throat and put me on the ground and spat in my face.

…

And while you were down on the ground, did he hit you …? – I’m not real sure.

Did his hitting you either when you were up or down … cause any injury …? – Yes, like face, like bleeding round the face, nose.

… Now, as well as hitting you with his hands, did he ever hit you with anything else? – Yes. … A gaff.

… Anything else? – Rubber hose.

Anything else? – Star fish.

You say you were hit with a starfish…? – Yes.

When did that happen? – At some time during the trip.

…

Did that cause any injury …? – Just pain in my … [lower] back.

…

And you say that he put a crab on your ear at one stage? – Yes.

Do you know what kind of a crab it was? – A little sand crab.

… And how did that happen? – He just grabbed it out of the sorting tray and stuck it on my right ear.

… And what happened …? – It bit into my ear … with the little claws …

… [D]id that cause any injury…? – Yes, [it] bled my ear.

And you say there was a gaff at some stage used? – Yes, he used the gaff.

How did that come about? – He’s grabbed it and smashed it, and grabbed the horn of it and put it towards my throat …

…

Are you saying at the bottom of your neck … [w]here your neck … meets your chest? – … Yes.

… [D]id that gaff cause any injury to your neck …? – No, just like, cut it and it bled.

Do you know what had happened just before him smashing that gaff? – He got angry with me because I wasn’t doing my job properly.’

The complainant explained that the Captain Alex was equipped with two fibreglass dip tanks, which were filled with fresh seawater. They were used to clean the prawns before they were cooked and frozen. The complainant said this about them:

‘… [D]o you remember anything happening with the dip tanks? – Yes.

What was that? – I had my head dunked in it twice. … He’s grabbed me by the back and put me head in the water.

… [H]ow long were you held under the water? – I’m not sure.

… [W]hat were you doing while you had your head forced into the water? – [T]rying to get my head out of the water …

Were you able to…? – No I couldn’t.

… [Y]ou eventually got your head out? – Yeah … well, he’s pulled me out of the water.

How many separate occasions did that happen …? – Twice.

…

[W]hat was in your mind while you were having your head held under the water? – I was going to die.’

The complainant gave evidence of some conversations he had with the appellant. He said:

‘Can you remember him saying some things to you while you were out at sea? – Yes … He called me a stupid cockhead… I wasn’t doing my job properly. … I was like useless … [a]t my job.

…

Did he talk about things that happen at sea? – Yes, “[a]ccidents do happen … and no-one would ever find you if an accident happened out there … you could fall and they could say you’ve fallen overboard or anything …’ and … I panicked then.

…

What was the scariest thing he said …? – Probably that … “[n]o-one would ever be able to find you”. That really scared me …’

The complainant also gave evidence that:

‘[A]s well as throwing you around … did the [appellant] do anything else? – Yeah, like hit me around the head. … plastic buckets were smashed on the back of my head. They’ve got lumps in them.

…

This hitting you with the rubber hose? – Yes.

Where did that hit you …? – Around the [lower] back … and left marks on my back.

…

And you say that the [appellant] was pushing you around the deck. Did he ever try and push you anywhere else? – In the rib. I thought I had a broken rib at one stage …’

Two other events occurred on the voyage. A prawn trawler is equipped with metal spars, called booms, which are hoisted into a vertical position at times when the vessel is not actually trawling. When it does trawl the booms are lowered into a horizontal position by means of cables and a winch. The nets are trawled from the booms which, when lowered, protrude well beyond the sides of the vessel. The nets are lowered from the boom, again by cables and a winch. There is a skid on the outboard end of the boom. Its function is to hold the mouth of the net open. On one occasion the complainant clambered out on the boom to attach a rope to the skid. While he was in that precarious position the appellant operated the winch to lower the net and the skid, and the complainant, into the sea. He held tightly to a chain attached to the skid until the appellant winched the net back to the boom and Mr Loncar was able to scramble back to the deck where he was met by the appellant who, according to the complainant, ‘just grabbed me and [threw] me down’.

The last event occurred as the Captain Alex returned to her berth in the Pioneer River on 4 October 2002. The complainant was required to lift the boom from the horizontal to the vertical position so the trawler could berth. The complainant’s account was:

‘… I tried to pull it up first but I couldn’t, and I went around to tell [the appellant] that I couldn’t … move at all ’cause I was that sore in that rib and he grabbed me from the front of my shirt and pulled me straight down and hit the … floor of the boat on my face.’

When, eventually, the Captain Alex was safely berthed the appellant told Mr Loncar to ‘get [his] gear and get off the boat’. The complainant obeyed so promptly that he took his bag but left his clothes behind.

Two other facts should be mentioned. During the course of the voyage the Captain Alex encountered another trawler, the Beryl Lee. The skipper and the deckhand of that boat came separately onto the Captain Alex. Mr Loncar had an opportunity to complain to either or both of them about his mistreatment at the hands of the appellant. For that matter the complainant could have asked the skipper of the Beryl Lee if he could take passage on her as a means of escaping the appellant’s cruelty. He did not say anything to either skipper or deckhand about his plight. The second fact is that the appellant performed some acts of kindness to the complainant, which interspersed the acts of cruelty. The appellant provided some rudimentary first aid when Mr Loncar hurt his foot. He cooked meals both for himself and the complainant during the voyage and he gave the complainant cigarettes when Mr Loncar’s own supply ran out.

Mr Loncar suffered a number of injuries as a result of the appellant’s assaults, but they are fairly described as minor. Dr Harvey, senior medical officer at the Mackay Base Hospital, examined Mr Loncar on 4 October 2002, the day the Captain Alex returned to harbour. She noted:

‘Swelling to the right jaw with associated tenderness. Tenderness without swelling of the left jaw. Nose was swollen, tender and a graze with fresh blood ooze from the bridge of the nose. Graze under left nostril into moustache … Left forehead had fresh graze consisting of pinkened skin with fresh blood ooze. … Right eyebrow had a three by five [centimetre] blue-black bruise … Area of crushing to right pinna [outside section of the top of the ear] … Right swollen ear with blue-black bruise along entire length of pinna. Right internal mouth had an area of bruising of two centimetres [in] diameter … Blue-black bruise to left lower lid and … upper cheek. Tender area at the occipital region, lumps present. … Brown bruises to the right and left chest wall … Linear graze to the anterior chest wall … Area of severe tenderness across left ribs … Graze over left … iliac spine [hip] … grazes to the upper shoulder with multiple dried scabs … Fresh grazes to the right elbow with fresh red blood … Tenderness of the right wrist without bruising.’

Section 320A of the Criminal Code Act 1899 (Qld) provides:

‘(1)A person who tortures another person commits a crime.

Maximum penalty – 14 years imprisonment

(2)In this section –

pain or suffering includes physical, mental, psychological or emotional pain or suffering, whether temporary or permanent.

torture means the intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasion.’

The pain and suffering which the Crown alleged the appellant inflicted on Mr Loncar was ‘mental, psychological or emotional suffering’.

To prove that the complainant had been inflicted with severe mental, psychological or emotional suffering the Crown called Mr Jones who is a clinical psychologist and whom Mr Loncar had consulted on 12 October 2002 because he was ‘emotionally and psychologically disturbed’. Mr Jones treated the complainant for about a year, in the course of which he saw him about twenty times. Mr Jones’ initial diagnosis was that Mr Loncar was suffering an acute stress disorder. His symptoms were sleeplessness and irritability. He was distractible and avoided social contact out of a fear that he might meet the appellant. Because the symptoms persisted for more than a month Mr Jones altered his diagnosis to post-traumatic stress disorder. The diagnostic criteria for that disorder are that the patient ‘has experience[d], witnessed or was confronted with an event or events that involved actual or threatened death or serious injury … and the person’s response involved intense fear, helplessness, or horror’. This stress disorder persisted until February 2003 after which he ‘no longer met the criteria’. Mr Jones described the complainant’s symptoms as recurrent and intrusive distressing recollections of the event; a physical or physiological reaction when recalling the events; a diminished interest in social activities and an avoidance of social situations in which he might have met the appellant; limited range of emotional expression; and hyper-vigilance, the sense of being more than usually aware of one’s surroundings, borne of fear.

Mr Jones explained that whether or not an individual develops post-traumatic stress disorder in response to a dangerous or frightening event depends upon the individual’s resilience and the nature of the event. Some people are stronger in character than others and better at coping with unpleasantness. When, however, an individual does develop symptoms sufficient to amount to post-traumatic stress disorder the condition is serious.

It emerged from the evidence that the complainant had experienced a degree of distress in his life unrelated to his voyage on the Captain Alex. He had been married, but only briefly. His wife left him after about six months’ cohabitation. He had an infant son whom he could not see. His wife initiated proceedings in the Family Court seeking the award of an interest in the complainant’s business which he shared with his parents. That possibility was a source of particular anxiety for the complainant. In addition he worried that he had failed in life and he was a disappointment to his parents.

Mr Jones described the complainant as dependant in personality and vulnerable psychologically. He was more susceptible than the ordinary person to react to a threatening situation and develop a stress disorder.

Two other features of Mr Jones’ testimony should be mentioned. The first is that his evidence did not include an account of what the complainant told him of the events which preceded the onset of the symptoms. Mr Jones said that he was given a history by the complainant but he did not tell the Court what it was. The second feature is that Mr Jones did not expressly testify that, in his opinion, the appellant’s acts of aggression and abuse were the cause of the complainant’s stress disorder. That conclusion was implicit in Mr Jones’ evidence but he did not expressly state it. All that was said of the point was that the complainant ‘told [him] about what he said had happened out on a boat at sea’ and that the discussion between Mr Jones and the complainant ‘centred very much on what had happened’.

It is immediately apparent that the prosecution of the appellant on the charge of torture was difficult. The Crown took upon itself the burden of proving that the appellant intended to cause the complainant severe psychological (or mental or emotional) suffering and committed the series of assaults to bring about that result. Subject to the admissibility of Mr Jones’ evidence, which I will discuss later, the Crown proved that the complainant suffered a severe psychological disorder, post-traumatic stress disorder, which would no doubt satisfy the definition of pain and suffering in section 320A. It is not so clear that the Crown actually proved that the stress disorder was caused by the appellant’s behaviour. Mr Jones was not asked that particular question. That critical fact should not have been left to inference or implication.

If one assumes in the Crown’s favour that it did prove that the appellant’s conduct caused the complainant to suffer a severe psychological disorder the inquiry then turns to whether it proved that the appellant intended to cause, or inflict, that psychological suffering upon the complainant. Torture is, as I mentioned, the intentional infliction of suffering by an act or a series of acts. The words of section 320A are plain and unambiguous; they offer no scope for misunderstanding. To make out a case of torture the prosecution must prove, beyond reasonable doubt of course, that an accused intended his acts to inflict severe pain and suffering on his victim. It is not enough that such suffering is the consequence of the acts, and that the acts were deliberate. The prosecution must prove an actual, subjective, intention on the part of the accused to bring about the suffering by his conduct. The acts in question must have as their object the infliction of severe suffering; that must be their intended consequence.

There is no doubt that torture, as defined by the Criminal Code Act 1899 (Qld), is the intentional infliction of severe pain and suffering, physical or mental. That point was recognised by this Court in R v Burns [2000] QCA 201 in which it was said ‘the essence of that offence under section 320A is the intentional infliction of “severe pain or suffering” which may be mental or emotional only, and either temporary or permanent’.

‘Intention’ has no specific legal definition. It is to be given its ordinary, everyday, meaning. ‘Intention’ is the act of ‘determining mentally upon some result’. It is a ‘purpose or design’. (See the Macquarie Dictionary.) To prove that the appellant tortured Mr Loncar the Crown had to prove that his assaults and cruelty were designed to inflict severe psychological harm upon him. It had to prove that the purpose of those assaults was to inflict that harm on the complainant. It had to prove that the appellant consciously decided to beat the complainant in order to cause him severe psychological distress (or suffering). Nothing else would suffice.

Ordinarily the Crown will only be able to prove such an intention by what an accused said and/or what he did. In this case the appellant said nothing relevant. He did not give evidence. He was interviewed by police officers and the record of interview was put into evidence. The appellant denied ever assaulting Mr Loncar. The jury plainly disbelieved him but the point remains that nothing the appellant said provided any evidence of an intention to inflict severe psychological suffering upon the complainant.

That leaves only the appellant’s conduct as described by Mr Loncar as facts from which an inference of the requisite intention might be inferred. It is immediately apparent that the evidence is insufficient for that purpose. Mr Byrne, who appeared for the respondent on the appeal, very fairly conceded the point. The concession was rightly made. The reasons are not hard to find: firstly, the complainant’s own evidence showed that the appellant had a motive for the assaults. Motive and intention are different things but the existence of a motive may be a sufficient explanation of conduct, which, because of the motive can be seen not to be the expression of a different intention. In this case the appellant’s motive tends to explain his conduct. The motive was anger and frustration at the complainant’s ineptitude as a deckhand. The assaults followed immediately upon some failure by the complainant to perform his duties properly and the appellant gave as his express reason for the assault the complainant’s errors and omissions. The motive was unworthy and provides no justification at all for the appellant’s violence, but it does indicate that the violence was no more than an expression of the appellant’s indignation.

Secondly, it is objectively improbable that a series of assaults, more or less minor, would cause a severe stress disorder. To borrow a phrase from a different context, the conduct was not apt to achieve the postulated goal, the infliction of psychological pain. In this regard one recalls that the complainant was psychologically vulnerable to the onset of a stress disorder and had problems in his life other than his treatment at the hands of the appellant. The point is that the appellant’s episodic batterings would not, in all likelihood, have brought about a stress disorder in the ordinarily robust individual. The complainant was particularly susceptible to such a disorder. The appellant’s conduct does not therefore support an inference that he intended by his violence to bring about a result which, by definition, it was unlikely to achieve.

Thirdly, the complainant did not tell the appellant that he was experiencing emotional distress as a result of the assaults. Had there been such an intimation, and a continuation of the attacks, one might well infer that the appellant intended to inflict that distress. In the absence of such an intimation the appellant remained ignorant of the results of his conduct. Associated with this point is the fact that the appellant had the opportunity to complain of his mistreatment to the skipper and deckhand of the Beryl Lee, or even to escape with them. He did neither, thereby giving the appellant no reason to believe that his conduct was having a deleterious emotional effect on the complainant.

Fourthly, there is simply no evidence that the appellant’s attacks were part of a purpose or design to bring about a state of nervous disorder in the complainant. What was proved was a number of apparently spontaneous assaults each occasioned by the appellant’s choleric impatience with an incompetent deckhand.

It is obvious that the jury’s attention should have been drawn particularly to the difficulty in the prosecution case and the need to be satisfied, beyond reasonable doubt, that there was a design or purpose to the assaults, that being the infliction of severe mental suffering upon the complainant. The jury had to be warned, in terms, that they had to be satisfied, beyond reasonable doubt, that the assaults were not the result of episodic anger but were part of a pattern or design, the purpose of which was to inflict severe mental suffering. No such warning was given. Indeed the prosecutor does not appear to have understood that proof of such a design was necessary. The trial judge did not advert to the deficiency in the prosecution case and did not draw the jury’s attention to the difficulty. Indeed his Honour inadvertently misdirected the jury when he explained to them how intention might be inferred.

His Honour said (at AB 274-275):

‘… a person tortures another person, if they intentionally inflict severe mental, psychological or emotional pain or suffering on that other person. … The infliction, however, must be intentional and the pain or suffering must be severe. These are all questions of fact and it’s a matter for you. …

An intention resides in the consciousness of a person. It’s not something like the pen in front of you, you can hold up … and look [at] it … If it is to be proved … it’s proved by a process of inference or deduction from surrounding circumstances, for instance, what the person did, what a person of ordinary knowledge and commonsense would realise, would follow or flow from what they did, what they said about, what they’d done … if they have said anything about it before or after they inflicted it; that sort of thing.’

The passage ‘what a person of ordinary knowledge and common sense would realise would follow … from what they did’ is misleading. It suggests that intention to bring about a result is to be presumed where the consequence of an act is foreseeable, and the act is performed. Alternatively it suggests that intention is to be assessed by an objective evaluation of what is a likely consequence of an act, so that if a result is intended it was objectively likely to follow the act.

What the jury should have been told was that the Crown had to prove that the appellant had an actual subjective intention to cause the complainant to suffer severe mental distress and that his conduct was designed to achieve that result. The difficulties in proving these facts from the evidence should have been drawn specifically to the jury’s attention.

On the crucial issue in the case all that the trial judge said was (at AB 294):

‘The prosecution must also prove that the accused man intentionally inflicted the severe psychological, mental or emotional pain and suffering on him. Those are essential elements of the offence of torture which must be proved if a person is to be found guilty of that offence.’

This direction comes from the Bench Book and may be sufficient in a straightforward case. The direction was quite inadequate in this case. It gave the jury no hint as to their real task, and offered them no understanding of what the evidence had to prove before they could be satisfied that the appellant tortured Mr Loncar.

These considerations are sufficient to explain why the Court allowed the appeal at the conclusion of argument. The concession, in which I concur, that there was no evidence sufficient to prove the requisite intention explains why the Court ordered that a verdict of acquittal be entered rather than a retrial.

One other point should be mentioned; it concerns the evidence of the psychologist, Mr Jones. His evidence was improperly admitted. That now is of no consequence because of the orders already made, but the reason for the inadmissibility should be examined in the hope that the error which led to its admission will not be repeated in other cases.

Mr Jones expressed his expert opinion that Mr Loncar suffered a severe stress disorder. It may be assumed that he also expressed the expert opinion that the cause of the disorder was the appellant’s violent mistreatment of the complainant.

Mr Jones was a properly qualified clinical psychologist. He was, relevantly, an expert whose opinion might be admitted into evidence. Before it could be accepted, however, the factual basis for the opinion had to be explained to the court. Mr Jones had to recount the facts on which he based his opinion. To do that he had to give in evidence the history he took from the complainant about his symptoms and what led up to them. Mr Jones’ rehearsal of those facts would not prove them but once he had said what he understood the facts to be on which he formed his opinion that opinion could be provisionally admitted into evidence. If the facts were proved by someone who had knowledge of them, in this case the complainant, the opinion would be admitted unconditionally. It the facts were not proved the condition on which the admission depended would be unsatisfied and the opinion could not be acted on by the tribunal of fact.

There is nothing new in any of this. It should be well understood by all counsel. The rules relating to the admission of expert opinion evidence were recently reviewed by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 729-742. His Honour noted (731-2):

‘The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are “sufficiently like” the matters established “to render the opinion of the expert of any value”, even though they may not correspond “with complete precision”, the opinion will be admissible and material …’

This has been the law for many years. In Ramsay v Watson (1961) 108 CLR 642 at 648-9 the High Court pointed out that a medical specialist ‘is ordinarily allowed to state the “history” he got from the patient’ because ‘statements made to an expert witness [are] admissible if they are the foundation, or part of the foundation, of the expert opinion …’ Such statements are not evidence of the existence of the facts recounted and ‘if the man whom the physician examined refuses to confirm in the witness box what he said in a consulting room’ the opinion will have little or no value, depending upon the facts of the case. The same rule is true for a psychiatrist: see Gordon v R (1982) 41 ALR 64.

This elementary rule having been overlooked, Mr Jones’ opinion was inadmissible.

One last comment is called for. It may be open to the Crown to prosecute the appellant for the assaults, some of which occasioned bodily harm, he committed upon the complainant. To such charges the appellant could probably not successfully plead either sections 16 or 17 of the Criminal Code. Nevertheless, in my opinion, it would be a misuse of the prosecutor’s discretion to indict the appellant with the assaults. On his conviction on the charge of torture on 21 July 2005 the appellant was sentenced to three years’ imprisonment and he remained in jail until 2 December, when this Court quashed the conviction. If he were convicted of the assaults it is improbable that the appellant would be sentenced to a term of imprisonment greater than the time he has already spent in custody.