Since 2024 Queensland has had a statutory ban on one kind of jury direction. Section 132B of the Evidence Act 1977 (Qld) forbids a judge from telling a jury that a doubt about the truthfulness or reliability of a complainant’s evidence on one charge must be carried into its assessment of that evidence on the others, and abolishes any common law rule requiring or permitting such a direction. That is the Markuleski direction, and the question addressed here was how far the ban reaches into multi-count trials with nothing to do with sexual offending.
R v Saghir [2026] QCA 194 answers part of it, in a judgment that then dismissed the appeal on a different point entirely. One ground was pressed, it was the appellant’s, and it failed.
What the Court decided
The appellant was convicted on 22 August 2025 in the District Court at Brisbane, before Loury KC DCJ, on six of eight counts of advocating terrorism under s 80.2C(1) of the Criminal Code (Cth). He faced one charge for each video he had posted, at [5], the eight spanning eleven months from 12 March 2019 to 22 February 2020, at [4] and [49]. He admitted posting them. The only element in issue was proof of the requisite intention, at [18] and [45], and that part of the Crown case was wholly circumstantial, at [9]. The jury convicted on counts 1, 2, 3, 4, 6 and 8 and acquitted on counts 5 and 7, at [21].
The trial judge gave the conventional separate consideration direction, telling the jury the evidence on the separate offences was different and the verdicts need not be the same, at [16]. At the end of the summing up trial counsel raised the desirability of a direction along the lines of R v Markuleski [2001] NSWCCA 290, which would have told the jury a doubt about intention on one count could be considered on the others. Her Honour replied, observing that the differing quality of the videos might explain different verdicts. The Crown opposed it. Counsel said he accepted the position and did not press it, and no direction was given, at [19] and [20].
That sequence left no ruling and no decision of a question of law to challenge. Her Honour “did not make a ruling and has not made a ‘decision of any question of law'”, at [42]. The original ground, that the verdicts were unreasonable, was abandoned and replaced by amendment with a single ground alleging an error of law occasioning a miscarriage, at [22] and [23]. On the hearing senior counsel conceded he could not point to an error of law and confined the argument to miscarriage of justice, at [43]. Davis J wrote the reasons, Mullins P agreeing at [1] and Bond JA agreeing with the reasons and the order at [2]. The appeal was dismissed, at [72].
What s 132B bars, and what it does not
The Court’s construction of s 132B is considered obiter. It was a conclusion in the appellant’s favour that cleared the way to the real question rather than deciding the appeal, which turned on materiality. It is still the most useful part of the judgment for anyone running a multi-count trial.
On reach, the section is not confined to the trials that produced the Markuleski jurisprudence. It “appears in Part 8 of the Evidence Act headed ‘Miscellaneous’ and not in those parts which specifically concern witnesses in sexual offence cases”, and it “is not limited in its operation to cases where consideration of Markuleski directions usually arise”, although “that is the type of case which the section is mainly designed to address”, at [27]. The explanatory material confirms it was one of a raft of measures aimed at sexual misconduct cases, but the section “would though have operation beyond such cases”, at [28].
On content, the ban is narrow. What s 132B prohibits is the prescribed direction about the “truthfulness or reliability” of a complainant’s evidence, and s 132B(3) still permits a judge to comment on the evidence where that is appropriate in the interests of justice. The term complainant “is defined in the Evidence Act but not for the purposes of s 132B”, and “the direction here does not concern the ‘truthfulness or reliability’ of any witness”, so “there was no prohibition here upon the trial judge giving a Markuleski direction”, at [29]. A footnote to that paragraph records the same position was assumed, rather than decided, in R v BEI [2024] QCA 71 at [20].
Why no blanket rule required the direction
Markuleski “does not establish any principle of law that a direction must be given in all cases of trial of a multi-count indictment that any doubt which a jury entertains in relation to one count may be considered in the assessment of other counts”, at [30]. Any requirement to give one therefore “must be founded in any particular case in the trial judge’s general duties”, at [31], which are to identify the real issues, direct on only so much of the law as the jury needs, and overridingly ensure a fair trial, at [32]. The occasion for the direction is the risk Keane JA identified in R v Ford [2006] QCA 142 at [124], that the accused is denied the chance of acquittal on all counts where that result ought reasonably to follow from the jury rejecting part of the complainant’s account. “What is necessary is to identify the unfairness which would be occasioned if the direction was not given”, at [34].
The unfairness alleged here was specific, and the Court said what it was not. “Neither the parties nor the trial judge invited the jury to engage in any type of propensity reasoning and the fact that there were different verdicts on different counts indicated that no such reasoning was adopted”, at [46]. The complaint was instead that without a direction the jury “might not take into account, in their consideration of some counts, a reasonable doubt which they held in relation to the element of intention on other counts”, at [47].
Tested against the trial, it went nowhere. Nothing in either acquittal video was identified, in writing or at the hearing, as relevant to intention on any count of conviction, at [48]. Counts 1 to 3 were committed in March 2019 and count 4 not until January 2020, so “it would be surprising if the jury, in their consideration of the appellant’s intentions in March 2019, could obtain any assistance from what he said in February 2020”, at [50]. The videos themselves also disclosed a rational basis for the split: the convictions rested on videos containing “clear and unequivocal calls to violence”, at [61] and [69], while on count 7 the closest thing was a rhetorical question delivered during what the Court called emotional ramblings, at [60]. So the Court could “see no basis upon which it could be concluded that the failure to give such a direction could realistically have affected the reasoning of the jury to the verdicts of guilt which they returned”, at [70]. “The trial was not unfair”, at [71].
The reconcilable verdicts point
One further passage matters, and it too is considered obiter. In R v WAC [2008] QCA 151 it had been argued, on statements in R v Ford and R v S [2002] QCA 167, that a miscarriage founded on a missing Markuleski direction can only result where the verdicts are proved to be irreconcilable. Holmes JA rejected that proposition, while being in dissent in the result of that appeal for other reasons, at [36]. Davis J agreed: “There is no reason why there ought to be such a principle of law”, and “circumstances may no doubt arise where verdicts can be reconciled but where a failure to give a Markuleski direction may have caused a miscarriage”, at [37]. What does form part of the reasoning is the corollary the Court drew next, which it then applied at [49] to [51] and again at [70]. The reasons a jury may have delivered different verdicts can be weighed in deciding whether the missing direction made the trial unfair, and where the reasons for an acquittal “bear no relevance to the counts upon which there have been convictions, it may be difficult to argue that the failure to give a Markuleski direction has caused a miscarriage of justice”, at [38].
How each point fared
| Point, and who advanced it | Outcome |
|---|---|
| Appellant’s sole ground, added by amendment: the failure to give a Markuleski direction was an error of law occasioning a miscarriage of justice | Failed, and decided the appeal, at [70], [71] and [72]. The error of law limb was conceded at [43] |
| Appellant’s original ground, that the verdicts were unreasonable | Abandoned before the hearing and replaced by amendment, at [22] and [23], so never argued or determined |
| The construction of s 132B, at [26] to [29] | Considered obiter. A conclusion in the appellant’s favour that did not produce the result |
| That no principle confines miscarriage to irreconcilable verdicts, at [36] to [37] | Considered obiter. The Court did not need to reconcile these verdicts, having found the omission immaterial either way |
Published 16 October 2026.
What this leaves for a multi-count trial
The practical lesson is about the floor of the court rather than the appeal. Counsel raised the direction, got a response, said he accepted it and did not press it, so there was no ruling, at [42]. On appeal the error of law limb was conceded and the ground was confined to miscarriage, at [43]. The Court did not decide that the absence of a ruling compelled that concession, and it did not determine whether the trial judge’s general duties required the direction on these facts. The Court also noted that no feature of the evidence on a particular count had been identified as one that might undermine others, at [40]. The question is “whether there is a factor concerning one count to which the jury should be alerted and which might lead them in their deliberations to have a reasonable doubt as to proof of some other count”, at [41], and it is for counsel to identify that factor when the application is made.
Several questions remain open: what complainant means for a section that does not define it, at [29]; how far s 132B operates beyond sexual misconduct cases, at [27] and [28]; which circumstances would produce a miscarriage where the verdicts can be reconciled, at [37]; and whether the trial judge’s general duties required the direction on these facts, which was never determined because no ruling was made and the error of law argument was abandoned.
Related reading
- R v Welton: a Crown address can require a direction both counsel said was unnecessary
- R v Johnson: the pre-sentence custody declaration must be made even when no time counts
- Farrugia v The King: shared counsel and co-offenders on sentence
- Criminal law at Fraser Lawyers
Source: R v Saghir [2026] QCA 194, Supreme Court of Queensland, Court of Appeal, Mullins P, Bond JA and Davis J, heard 7 September 2026 and delivered 2 October 2026, on an appeal against convictions entered in the District Court at Brisbane on 22 August 2025 (Loury KC DCJ). The Queensland provisions referred to are the Evidence Act 1977 (Qld) s 132B, inserted by s 65 of the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 (Qld), and the Criminal Code (Qld) s 668E. Section 80.2C(1) of the Criminal Code (Cth) is taken from the Court’s own quotation of it at [7], because the Federal Register of Legislation publishes that Code only as whole-of-Act volumes with no per-section text.
Facing a multi-count indictment in Queensland? What a jury is told about considering each count, and when the point is taken, can decide how a trial runs and what survives on appeal. Contact Fraser Lawyers to discuss where you stand. |
This article is general information only and is not legal advice. The law referred to can change, and every situation turns on its own facts. Contact Fraser Lawyers for advice specific to your circumstances.
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