The King v Ubonrat - [2025] NTSC 45

CITATION:The King v Ubonrat [2025] NTSC 45
PARTIES:THE KING
v

UBONRAT, Apinun

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21913449
DELIVERED:  12 May 2025
PUBLISHED:  8 July 2025
HEARING DATES:  12 May 2025
JUDGMENT OF:  Blokland J

CATCHWORDS:

Criminal Law – criminal trial – admissibility of evidence – evidence of acquittals of defendant in a previous trial – accused intended to use fact of acquittal to challenge or impair the credibility of a witness who had given evidence in a previous trial – relevance – evidence of a decision or judgment – judicial discretion to exclude evidence – held, evidence not admissible.
Statute
Evidence (National Uniform Legislation) Act 2011 (NT), ss 55, 91, 135
Evidence (Interim Report) [1985] ALRC 26

R v PMC [2004] VSCA 225 referred to. R v HMA [2024] QCA 156 distinguished.

REPRESENTATION:
Counsel:
Applicant:M Thomas
Respondent:  W Bruffey/ K Thomas
Solicitors:
Applicant:Robert Welfare & Associates
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  BLO 2508
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The King v Ubonrat [2025] NTSC 45

No. 21913449
BETWEEN:

THE KING

v

APINUN UBONRAT

CORAM: BLOKLAND J
Ruling on admissibility of evidence
(Published 8 July 2025)
Introduction

Apinun Ubonrat was originally charged with 15 offences against two complainants: PF and LM. PF is the older sister of LM.
On 8 October 2024 a jury acquitted him of 9 counts, in respect of which PF was the complainant.
The jury was unable to reach a decision as to the remaining 6 counts, in respect of which LM was the complainant.
The accused stood a second trial for the undecided counts in relation to LM. The final indictment the subject of the most recent trial, dated 12 May 2025, contained 4 counts. LM was the complainant for all counts.
The second trial commenced on 12 May 2025. An essential part of the defence case at the first trial and the second trial was that PF and JF (the mother of PF and LM) influenced LM to give false evidence against the accused. Further, that PF and JF were motivated to do so because of the poor relationship between PF and the accused and their eventual separation; that PF was angry about not getting permission from the accused for a visa for their child and that JF was a gambler who had gambling debts with him. These matters were suggested in a variety of ways to each of the Crown witnesses. It is for this reason that evidence from PF was led in the second trial. All evidence relating to the allegations made by PF, the subject of the acquittal, were removed from her pre-recorded evidence.
Prior to jury empanelment, counsel for the accused sought to have evidence admitted of the fact that the accused was previously acquitted of counts relating to PF. The Crown objected to this course and, following oral submissions from both parties, I ruled against admitting the evidence.
These are the reasons for the above ruling.
Admissibility of evidence
Defence counsel contended that the evidence of acquittals was relevant to the jury’s assessment of PF’s reliability. Firstly, it was submitted that the acquittals indicated the previous jury had a problem with the reliability of PF’s evidence. Secondly, it was submitted that, absent the evidence of acquittals, the jury may speculate that conduct in relation to PF was still the subject of charges. It was suggested the risk of the jury incorrectly using PF’s evidence could be mitigated by leading evidence of the acquittals.
The Crown objected to evidence of the acquittals being admitted on three grounds.
First, on the basis of relevance governed by s 55 of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘ENULA’).
Second, in light of the operation of s 91 of ENULA regarding the exclusion of evidence of judgments and convictions.
Third, because its probative value would be substantially outweighed by the danger that the evidence might be unfairly prejudicial to the Crown and misleading or confusing, as provided in s 135 of ENULA.
Dealing first with the matter of relevance, evidence is relevant if it can rationally affect the probability of a fact in issue (s 55 ENULA). The defence asserted that the issue of PF’s reliability grounded the test for relevance because it was relevant to the jury’s assessment of the facts in issue.
Both counsel referred to R v HMA,[1] in which it was observed, “Whether evidence of an acquittal is admissible will depend on its relevance… Questions of relevance and the admissibility of evidence of an acquittal requires a detailed consideration of the facts and circumstances of the particular case”[2].
The judgment in R v HMA contains a helpful outline of the circumstances confronting the Court in R v PMC[3] as follows:[4]
The applicant claimed that his brother had incited the complainant to accuse him falsely. That was denied by both the complainant and the applicant’s brother. Evidence that the applicant’s brother’s own allegations of sexual molestation had come to trial and that the applicant had been acquitted was not relevant to any fact in issue and did not establish bias on the part of the complainant. It is said that such evidence should have been received, but it was not admissible.
In relation to the defence argument in R v HMA that such evidence should have been received, and that counsel should have been permitted to put the acquittal to the brother as demonstrative of the falsity of his allegation, Nettle JA observed:
The fact that the applicant was acquitted of the charges concerning MPC proved nothing about the truth or falsity of the allegations on which those charges were based – it proved only that the other jury was not satisfied of the truth of the charges beyond reasonable doubt – and even if the acquittal said something about the views of the other jury as to the reliability of MPC as a witness, those views were irrelevant to the assessment of the jury in the trial of the charges concerning JSC[5] (citing Humphries v R (1987) 17 FCR 182 at 186; cf S v Damalis (1984) (2) SA 105 at 113).
His Honour’s reasoning is apposite to the present case, in which counsel for the defence submitted it can be inferred from the acquittals in the first trial that the jury found PF’s evidence to be unreliable. I disagree with this contention. It was not known, and it is never known, what view a jury takes to particular evidence of particular witnesses. The reasons why the jury decided to acquit the accused of the counts in which PF was the complainant remain unknown. The argument it can be inferred from the verdicts that the jury decided to acquit the accused because it found PF's evidence to be unreliable is untenable. I do not accept that relevance is established on the basis that the acquittals are relevant because they affect the current jury's assessment of PF's reliability as a witness.
Turning to the facts of R v HMA. This was an appeal against the decision of the trial judge to prohibit the appellant from adducing evidence of the fact that the appellant had been acquitted in an earlier trial involving a different complainant, who was also a complainant in the subject trial, on the grounds that it was not relevant. The appellant contended that this ruling precluded him from relying on a legitimate line of questioning in cross-examination to challenge the credibility and reliability of the evidence of the complainants and his nephew. It was held on appeal that the trial judge had improperly rejected the evidence and that the defence should have been permitted to lead evidence of the prior acquittals in order to properly put the defence case.
In R v HMA, the effect of the ruling was that an allegation of blackmail could not be put to one of three witnesses as it would inevitably, on the facts of R v HMA result in the jury finding out he had been charged with offences against the witness who was a complainant, but not that he was acquitted. Thus it was held he was constrained in advancing his case.[6]
The facts of R v HMA are to be contrasted with the present case, in which there is no suggestion that prohibiting evidence of the acquittals would constrain the defence from being able to properly advance its case.
Neither was there any real possibility of undermining the full benefit of the previous acquittals if they were not referred to in the evidence.
It is relevant that the evidence of LM and PF was pre-recorded. In the pre-record it was put to LM that she was pressured by PF and JF to make up the allegations the subject of the current trial. The defence case theory was clearly able to be advanced, without leading evidence of the earlier acquittals against PF and without reference to the allegations of sexual offending for which the accused had been acquitted.
Defence did not raise any other fact in issue (aside from the reliability of PF) in respect of which the acquittals would be relevant.
The ruling was therefore against allowing the defence to raise in evidence the fact that the accused was acquitted in an earlier trial of charges against PF. I was not satisfied that it was relevant evidence.
I will deal briefly with the Crown's alternate arguments that the evidence should have been excluded pursuant to s 91 of the ENULA and that it was unduly prejudicial or apt to be misleading or confusing.
The Australian Law Reform Commission commented as follows in respect of the probative value of evidence of acquittals:
Evidence (Interim Report) [1985] ALRC 26
781. It is of such minimal probative value that there is very little to be gained by admitting evidence of it and the disadvantages flowing from its admission are considerable.[7]
This position is reflected in the text of s 91(1) of ENULA: “Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding”.
In light of this provision, the verdicts of acquittal, which constitute a decision in an earlier trial, are inadmissible to prove the existence of a fact that was in issue in the earlier trial, namely, the alleged lack of credibility and reliability of PF.
As to s 135 of the ENULA. Section 135 provides a court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial, misleading or confusing or cause or result in undue waste of time. Evidence of an acquittal is generally probative only of the fact of an acquittal. In the circumstances here, evidence of the acquittal would tell the jury nothing about the reasons for acquittal. The most that could be said is that the jury in the previous trial were not satisfied beyond reasonable doubt of the allegations brought by PF. Nothing more is known about the reasons for the acquittal. It is not known whether the jury accepted PF was an unreliable or discredited witness or whether she had the asserted motive to lie and influence her sister to do the same.
Although in my view evidence of the acquittals would not be overly prejudicial to the Crown case, the inclusion of them in the evidence is likely to mislead or confuse the jury as to what use could be made of the evidence of the prior acquittals.
Although this is not the strongest point in favour of exclusion, I would exercise the discretion to exclude the evidence on the grounds the jury could be mislead into thinking the previous acquittals were due to the previous jury accepting the motivations to lie as asserted by the accused. Such a conclusion could only be reached by improper speculation. In any event, the jury in the current trial were not obliged to come to the same conclusion as the jury in the previous trial on any matter of fact. If appropriate directions could be formulated to meet circumstances in which evidence of the acquittals was allowed, the directions would effectively render the evidence without value as the jury would be told not to speculate on the reasons for the acquittals.
Post Trial
The accused was found guilty of all charges at the conclusion of the trial.
The reasons will be forwarded to counsel.
---------------------------

[1] [2024] QCA 156

[2] R v HMA [2024] QCA 156 at [26].

[3] [2004] VSCA 225

[4] R v PMC [2004] VSCA 225 at [3].

[5] Ibid at [21].

[6] R v HMA [2024] QCA 156 at [42]-[43].

[7] Evidence (Interim Report) [1985] ALRC 26 at [781].