Background
Omar Saghir was tried in the District Court at Brisbane on eight counts of advocating terrorism contrary to s 80.2C(1) of the Criminal Code (Cth). Each count concerned a video about the Syrian civil war that he posted to a Facebook page between March 2019 and February 2020. Saghir admitted posting the videos. The disputed issue was whether, in each instance, he intentionally advocated the doing of a terrorist act while reckless as to whether another person would engage in one.
The jury convicted Saghir on counts 1, 2, 3, 4, 6 and 8 but acquitted him on counts 5 and 7. The trial judge had directed the jury to consider each charge separately. After the summing up, defence counsel raised whether the jury should also receive a direction derived from R v Markuleski—that a reasonable doubt concerning one count could be relevant when considering other counts—but did not press the request after discussion with the judge. Saghir ultimately appealed on the sole ground that the absence of such a direction caused a miscarriage of justice.
The Court’s Holding
The Court of Appeal unanimously dismissed the appeal. Davis J, with Mullins P and Bond JA agreeing, held that Markuleski does not establish a rule requiring the direction in every multi-count trial. Whether such a direction is necessary depends on the evidence, the issues at trial and the trial judge’s overriding duty to ensure fairness. Section 132B of the Evidence Act 1977 (Qld) did not prohibit the proposed direction here because the case did not concern the truthfulness or reliability of a complainant’s evidence.
The Court found no miscarriage of justice. No feature of videos 5 or 7—the counts resulting in acquittals—was identified as capable of creating a reasonable doubt about Saghir’s intention on the six counts resulting in convictions. The videos differed in content and timing: the convicted counts contained clear calls to violence, while the two acquitted counts lacked similarly unambiguous language. In those circumstances, a Markuleski direction could not realistically have affected the jury’s reasoning or guilty verdicts, and the trial was not unfair.
Key Takeaways
- A Markuleski direction is not automatically required whenever a jury considers multiple counts and may return different verdicts.
- An appellant alleging unfairness from the absence of such a direction must identify how doubt concerning one count could realistically bear on the jury’s reasoning about another.
- Different verdicts may be rational where the evidence supporting each count differs materially; here, the acquittals concerned less unequivocal statements than those supporting the convictions.
Why It Matters
The decision clarifies that appellate review focuses on the concrete risk of unfairness created by the omitted direction, rather than on the mere existence of mixed verdicts. Verdicts need not be irreconcilable before an omission could amount to a miscarriage, but the appellant must show a realistic connection between the doubt on acquitted counts and the reasoning underlying the convictions.
The case also confirms that Queensland’s statutory prohibition on certain directions about doubts concerning a complainant’s truthfulness or reliability does not extend to every possible Markuleski-style direction outside that context.