Markuleski Direction

“the existence of a question mark in their minds concerning the credibility, or reliability of the evidence given by a complainant or central witness in relation to one count, may properly be taken into account, in conjunction with all the other circumstances of the case, when they consider the reliability or credibility of the evidence of that complainant or witness in relation to the other counts.”

The trying of multiple charges against one defendant poses special difficulties for juries.

Jurors are inexperienced and untrained, and as such it is not difficult to see it being difficult for jurors to, as they must, separately and carefully consider each charge they need to determine. Various directions exist to emphasize the importance of separate consideration.

However, in matters where a complainant gives direct evidence of the alleged offending, and where the jury determines to acquit the defendant of one of the charges, it is appropriate that the jury consider how that acquittal impact their assessment on the remaining charges.

Naturally a jury is not directed to acquit the defendant of all charges if they acquit the defendant of one charge. However, the Markuleski Direction reminds a jury that “the existence of a question mark in their minds concerning the credibility, or reliability of the evidence given by a complainant or central witness in relation to one count, may properly be taken into account, in conjunction with all the other circumstances of the case, when they consider the reliability or credibility of the evidence of that complainant or witness in relation to the other counts.”

Jones

Jones v R [1997] HCA 56

“Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.”