Multiple counts — R v Markuleski

[3-400] Suggested R v Markuleski (2001) 52 NSWLR 82 direction — multiple counts

Giving separate consideration to the individual counts means that you are entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome.

If you were to find the accused not guilty on any count, particularly if that was because you had doubts about the reliability of the complainant’s evidence, you would have to consider how that conclusion affected your consideration of the remaining counts.



It is suggested that the requirement to consider multiple counts separately is raised at the outset of the trial: [1-490] Suggested (oral) directions for the opening of the trial following empanelment.


McHugh J said in KRM v The Queen (2001) 206 CLR 221 at [36]:

It has become the standard practice in cases where there are multiple counts … for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it (a “separate consideration warning”).

Where tendency or coincidence evidence is not adduced, directions to the jury against the use of propensity reasoning will not normally be required, unless there is a feature of the evidence creating a risk that the jury would misuse the evidence: R v Matthews [2004] NSWCCA 259 at [43]–[51] applying KRM v The Queen.


In R v Markuleski (2001) 52 NSWLR 82 at [186], [257] and [280], the court held that:

… it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant’s evidence with respect to any count.


The suggested direction, above, is derived from R v Markuleski at [188] and [191]. Spigelman CJ added at [189]–[191] that:

On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count.

Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant’s credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts.

The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case.


A Markuleski direction should only be given if the complainant’s credibility looms large in the trial and there is a risk that in the absence of a direction the accused would be denied the chance of an acquittal on all counts: RWC v R [2013] NSWCCA 58 at [80]; Abdel-Hady v R [2011] NSWCCA 196 at [125]–[133]. When determining whether such a direction should be given, the whole of the relevant or surrounding circumstances needs to be considered: R v GAR [2003] NSWCCA 224 at [34]; Oldfield v R [2006] NSWCCA 219 at [24]–[25]; Keen v R [2020] NSWCCA 59 at [76].


While a Markuleski direction is more commonly given in a “word against word” prosecution for multiple sexual assault offences against the same complainant, its use is not confined to such cases: Keen v R [2020] NSWCCA 59 at [63]; Hajje v R [2006] NSWCCA 23 at [101]. It may also be required in cases where a complainant for some offences is also a witness to an offence/s involving another complainant: see, for example, Sita v R [2022] NSWCCA 90 at [36]–[42].