The King v Ubonrat [2025] NTSC 45

The King v Ubonrat [2025] NTSC 45 | Case summary | Zoe

[4]

[17] 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.
[18] 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.
[19] 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]
[20] 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.
[21] Neither was there any real possibility of undermining the full benefit of the previous acquittals if they were not referred to in the evidence.
[22] 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.
[23] Defence did not raise any other fact in issue (aside from the reliability of PF) in respect of which the acquittals would be relevant.
[24] 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.
[25] 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.
[26] The Australian Law Reform Commission commented as follows in respect of the probative value of evidence of acquittals:

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[27] 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".
[28] 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.
[29] 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.
[30] 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.
[31] 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.

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