A Makarian direction is a judicial instruction that tells a jury how to treat the fact that the accused person did not take the witness stand during their trial. It sits at the intersection of two fundamental principles: the right to silence and the jury's responsibility to reason only from the evidence actually placed before them. When a judge gives a Makarian direction correctly, it protects the accused from improper reasoning. When it is mishandled, it can undermine the fairness of the entire proceeding.
Where the name comes from
The direction takes its name from the South Australian case R v Makarian, though the principles it reflects are applied across Australian jurisdictions. Courts have long grappled with how to address the accused's silence in the clearest and least prejudicial way. The Makarian direction represents the settled approach: acknowledge the absence, dispel any improper inference, and redirect the jury to the prosecution's burden.
What the direction actually says
In substance, a Makarian direction covers three things.
- The accused is not obliged to give evidence, and the jury must not treat silence as an admission of guilt.
- The jury cannot use the failure to testify as a reason to fill in gaps in the prosecution's case.
- The prosecution bears the entire burden of proving guilt beyond reasonable doubt, regardless of whether the accused said anything at all.
Judges typically deliver the direction at the close of evidence, before the jury retires. The precise wording varies, but the core message does not. Silence proves nothing. The prosecution must make its case on its own evidence.
Why the direction matters in practice
Jurors are human. When a person sitting in the dock says nothing in their own defence, the instinctive reaction is to wonder why. A Makarian direction interrupts that instinct before it hardens into a verdict. Without the direction, a jury might reason backwards: "if the accused were innocent, they would have told us so." That reasoning is both legally wrong and fundamentally unfair.
The direction becomes especially important where the prosecution's case is circumstantial. This connects directly to the concern addressed in a Farquharson direction, which guides juries on how to reason from circumstantial evidence to guilt. Where both issues arise in the same trial, the judge must take care to give both directions in a way that reinforces, rather than contradicts, each other.
When a judge must give the direction
A Makarian direction is not automatic. It arises when the accused elects not to give evidence and the trial judge considers that the jury needs guidance on how to treat that silence. In most contested trials, the direction will be given as a matter of course. Defence counsel can request it. The judge may also give it on their own initiative. A failure to give the direction where it was warranted can form the basis of a ground of appeal.
Timing matters. The direction should be given before the jury retires, ideally as part of the summing up. A direction that is buried, rushed, or contradicted by surrounding remarks will not serve its purpose.
How it differs from a Jones direction
A Makarian direction addresses the accused's own silence. A Jones direction addresses a party's failure to call a witness who could have given relevant evidence. The two are distinct in logic and in application. Conflating them in a summing up is a recognised judicial error. Where the prosecution has failed to call an available witness, the Jones direction permits an inference. Where the accused has not testified, the Makarian direction forbids one. The difference is structural, and it matters.
The accused's right to silence and its limits
The right to silence in Australia is a constitutional and common-law protection. An accused person cannot be compelled to give evidence in their own criminal trial. The Makarian direction is one of the procedural tools that gives this right practical force: it prevents the jury from treating silence as equivalent to an admission, which would make the right to silence worthless in practice.
That said, the direction does not licence tactical silence where an innocent explanation is readily available. Defence lawyers need to weigh this carefully. Silence at trial is sometimes the safest option. Other times, it hands the prosecution a cleaner narrative. The direction mitigates that risk but does not eliminate it.
Common errors and grounds of appeal
Appellate courts in Australia have overturned convictions where a Makarian direction was absent, defective, or effectively neutralised by other remarks in the summing up. The most common problems are:
- Failing to give the direction at all where the accused did not testify.
- Giving a direction but then remarking on the silence in a way that invites the very inference the direction was meant to prevent.
- Placing the direction so late in the summing up, or so briefly, that it could not realistically correct earlier misdirection.
If a Makarian direction was absent or defective in your trial, that is a matter worth raising with a criminal law specialist. Not every misdirection leads to a successful appeal, but a structurally flawed direction on the right to silence is among the more substantial grounds courts will examine seriously.
What Ann Valos Criminal Law can do
Ann Valos Criminal Law is a team of accredited criminal law specialists with over 30 years of combined experience in courts across New South Wales. Ann Valos Criminal Law advises defendants at every stage of a criminal matter, from pre-trial strategy through to appeal. If you have questions about how the right to silence applies to your situation, or whether a direction given in your trial was legally sound, Ann Valos Criminal Law can provide clear, direct advice.