A Markuleski direction is a jury instruction that courts give in multi-count sexual assault trials where several complainants each give evidence about separate incidents. The direction comes from the NSW Court of Criminal Appeal decision in R v Markuleski (2001) 52 NSWLR 82. Its purpose is precise: to stop a jury from using one complainant's account as corroboration of another's unless the evidence genuinely warrants that reasoning step.
Without the direction, there is a real risk that a jury convicts on each count partly because they believe several people are making the same allegation, rather than because the evidence on each count independently meets the required standard of proof. That would undermine the beyond reasonable doubt direction that must govern every charge.
What the direction actually tells the jury
The Markuleski direction does two things. First, it instructs the jury to assess each count separately, starting from the position that each complainant's evidence stands alone. Second, it explains the limited circumstances in which a jury may use one complainant's account when reasoning about another's.
That second step is the careful part. The direction doesn't bar all cross-count reasoning. It permits a jury to take account of the similarity between incidents, but only after they have first accepted, on an independent basis, that each individual account is credible and reliable. They cannot bootstrap weak evidence into strong evidence by stacking complainants together.
In practice, the trial judge will spell out the sequence: consider each count, assess credibility, and only then ask whether the similarities across counts are so striking that they provide additional support. Judges typically identify the specific features the prosecution says are probative, so the jury knows exactly what reasoning is permitted.
When does a Markuleski direction arise?
The direction arises in trials where:
- there are two or more complainants, each the subject of at least one separate count;
- the prosecution invites the jury to treat the similarity of the accounts as evidence of guilt; and
- the risk of impermissible mutual corroboration reasoning is real, not merely theoretical.
It's most common in historical sexual assault proceedings, where the alleged offences occurred years or decades apart and the complainants did not know each other. It also appears in proceedings where a single complainant raises multiple incidents, though the direction's true force is felt when separate people are involved.
A Markuleski direction does not require a formal tendency notice in every case. But in trials where the prosecution has filed a Tendency Notice and led tendency evidence, the direction and any tendency direction must work together without contradicting each other. Getting that interplay right requires careful drafting from defence and careful delivery from the bench.
Why the distinction from tendency evidence matters
Tendency evidence and mutual corroboration reasoning are related but different tools. Tendency evidence is evidence about past conduct admitted specifically to prove that the accused had a particular tendency and acted consistently with it. Mutual corroboration involves the jury weighing the credibility of two separate, direct accounts of alleged offending.
A Markuleski direction addresses the latter. It says: if you believe A's account independently, and you believe B's account independently, and both accounts share striking features, you may treat that similarity as adding weight to each. But you must not believe A simply because you believe B, or vice versa.
This is harder for juries than it sounds. Human reasoning doesn't naturally compartmentalise. The direction is the legal mechanism that asks them to do so consciously, and a failure to give it when required can ground a ground of appeal.
What happens if a Markuleski direction is not given?
If trial counsel identifies that a direction was required and was not given, or was given incorrectly, that failure can become a ground of appeal against conviction. The Court of Criminal Appeal will ask whether the error was a material irregularity: did it occasion a substantial miscarriage of justice?
Not every omission results in a quashed conviction. If the evidence on each count was so strong that no reasonable jury could have acquitted even with a proper direction, the appeal court may apply the proviso and uphold the verdict. But in close cases, where the jury's assessment of credibility was central and the complainants' accounts were the main evidence, a defective Markuleski direction carries real appellate weight.
Defence counsel should raise the issue before the judge charges the jury, not after a verdict. Objecting during the charge conference and proposing a specific form of words is the right approach. Raising it only on appeal is permissible but less effective, because the court will consider whether trial counsel's silence was a deliberate tactical decision.
How Ann Valos Criminal Law approaches multi-count proceedings
Ann Valos Criminal Law handles multi-count sexual assault proceedings with detailed attention to the evidentiary issues that arise when several complainants give evidence in a single trial. Ann Valos Criminal Law reviews the prosecution's case for any invitation to impermissible mutual corroboration reasoning and, where necessary, proposes specific jury directions before the charge is delivered.
Ann Valos Criminal Law also scrutinises whether a proper tendency direction has been requested or is needed alongside a Markuleski direction, since the two can interact in ways that require precise co-ordination. Getting both directions right can make the difference between a jury that reasons correctly and a verdict that cannot be sustained on appeal.
Ann Valos Criminal Law has over 15 years of experience in criminal proceedings and a team with more than 30 years of combined experience. For advice on any multi-count matter or jury direction issue, contact Ann Valos Criminal Law directly to discuss your case.