R v HDE: the s 103ZY direction is not confined to the account of the offence

A Queensland judge in a sexual offence trial must give the jury four pieces of information whenever the evidence suggests a difference in the complainant’s account that may bear on the complainant’s truthfulness or reliability. The direction was inserted in 2024 and is in s 103ZY of the Evidence Act 1977 (Qld). Credit attacks often reach beyond the description of the offence to surrounding events and what happened afterwards. The question is whether the direction reaches those differences too.

R v HDE [2026] QCA 207 answers it. The Court of Appeal held that “a difference in the complainant’s account” in s 103ZY(1) is not confined to the account of the sexual offending. The Court itself described the point as “a significant question of statutory construction”, at [59]. The conviction appeal was dismissed and leave to appeal against sentence was refused.

What the Court decided

The appellant was convicted after a District Court trial of maintaining a sexual relationship with a child (a domestic violence offence) and sentenced to 10 years imprisonment, at [1]. The reasons are those of Mullins P. Bond JA agreed with her Honour’s reasons and orders at [60], and Bradley JA agreed at [61].

The defence case at trial was that the complainant was neither reliable nor credible. Counsel relied on a discrepancy about the first alleged rape, whether it was the complainant’s mother or another woman in the bed, and on two asserted lies about collateral matters, at [27] and [28]. One was an account to a residential youth worker of pregnancy and miscarriage, which she denied giving. The other was her denial of phone calls with the appellant while he was in custody, conceded once recordings were played, at [22].

In summing up, the trial judge gave the phone-call denial and the pregnancy and miscarriage account as examples of differences in the complainant’s accounts. He then gave the four pieces of information in s 103ZY(2)(a), at [35]. No redirection was sought, at [36]. On appeal the appellant argued that neither asserted lie was a difference in her account of a sexual offence. On that argument, tying them to the direction had “diminished or neutralised” the defence submission that she was untruthful, at [39].

The text of section 103ZY

Section 103ZY(1) applies if evidence is given, or a question is asked, “that tends to suggest a difference in the complainant’s account that may be relevant to the complainant’s truthfulness or reliability”. The judge must then tell the jury that experience shows (i) people may not remember or describe all the details of a sexual offence the same way each time, (ii) trauma may affect people differently, including how they recall events, (iii) differences in accounts of a sexual offence are common, and (iv) both truthful and untruthful accounts of a sexual offence may contain differences. Whether any difference is important is for the jury. A difference includes a gap, an inconsistency, and a difference between one account and another: s 103ZY(3).

The Court recorded at [9] the earlier statement in R v RBU [2026] QCA 151 that preliminary complaint evidence is an account of the complainant for the purpose of s 103ZY.

Why the narrow reading failed

The appellant’s construction confined “the complainant’s account” to evidence relating directly to the sexual offending, at [40]. The respondent pointed out that the words in s 103ZY(1) are not qualified by reference to the sexual offences, at [41]. Mullins P accepted the respondent’s construction. Her Honour referred to s 14A of the Acts Interpretation Act 1954 (Qld), at [43], and to the remedial purpose of the jury directions division, at [44].

On the text, the qualification “sexual offence” appears in only three of the four subparagraphs of s 103ZY(2)(a). Subparagraph (ii) refers to recalling “events”, which is broader, and the Court treated that as consistent with the pre-condition applying without a limit to the sexual offending, at [47].

Her Honour also observed that a complainant’s account inevitably extends to the circumstances of the offending and the relationship with the accused. “A defendant on trial for a sexual offence is not limited in which aspects of a complainant’s evidence are relied on to impugn the complainant’s truthfulness or reliability”, at [46]. Against that background it “would be artificial to confine the unqualified description” in s 103ZY(1) to the narrow construction. Implying the qualification “would not promote the remedial purpose of s 103ZY”, at [46]. The conclusion followed: “The respondent’s construction of the pre-condition in s 103ZY(1) is correct”, at [46].

The Court also confirmed that s 103ZQ(1), under which a direction is given for a good reason or on request, governs only the directions in subdivision 3. It does not apply to s 103ZY, which is in subdivision 4, at [45]. Once the pre-condition in s 103ZY(1) is met, the direction must be given.

How the direction works once triggered

The Court did not hold that all four pieces of information speak to every difference. Once the pre-condition is satisfied, the information “relates largely to the details or account of the sexual offence”, while subparagraph (ii) also reaches other aspects of a difference in the complainant’s account, at [47].

That answered the appellant’s real complaint, which was that subparagraphs (iii) and (iv) say nothing in terms about a lie told about a pregnancy or a phone call. The Court held that it was for the jury to apply each piece of information according to its terms to whichever difference they were considering. If the jury thought the complainant might have lied as the defence asserted, “it was obvious that the only piece of information that was relevant to their consideration was that in (ii)”, at [49]. “There was no error of law made by the trial judge in giving the impugned direction”, at [49].

The outcome did not depend on the collateral lies alone triggering the direction. The defence reliance on the first-rape discrepancy satisfied the pre-condition, so “it was mandatory that the direction under s 103ZY(2) be given in the trial”. In giving it, the trial judge correctly referred to the two asserted lies as examples of the difference, at [48].

What it means for trial practice

For defence counsel, a credit attack built on collateral inconsistencies sits within s 103ZY, and a judge who names those matters when giving the direction has not erred for that reason alone. The Court’s answer to the concern that the direction blunts a submission about lies is that the jury applies each piece of information according to its own terms, at [49]. Asking the judge to make that explicit is consistent with that reasoning, and no particular form of words is required: s 103ZQ(5).

Separately, and not as part of the reasoning on the appeal, the Court said that where a trial judge uses PowerPoint slides alongside the oral summing up, a copy “should be marked for identification to ensure the copy is preserved for any appeal”, at [33]. No copy had been preserved in this case.

What remains open

The Court did not need to hold that either asserted lie would by itself have made the direction mandatory, because the first-rape discrepancy did that. It said only that “It is implicit that the trial judge considered that the pre-condition in s 103ZY(1) was satisfied in relation to the two aspects”, at [36].

The appellant conceded that a tailored direction under s 103ZR could have been given to convey the trauma information about the asserted lie to the youth worker, at [40]. The Court recorded the concession but did not decide the point. Having found no error of law, it did not reach miscarriage of justice or the effect of the absence of objection. And it said in terms that “It is fortunate that the arguments advanced on the appeal do not raise the content of the slides”, at [33]. The decision says nothing about whether the slides were accurate.

The sentence application

The sentence ground was totality. The appellant was already serving nine years for the rape of the complainant’s sister, at [51], and on his counsel’s calculation would serve 85.22 per cent of the combined period before parole eligibility, at [52]. The Court held it was orthodox not to declare the remand period, already attributed to the rape sentence, as time served, at [54], and that the total was not excessive, at [56]. That part of the decision turns on its facts.

Published 29 October 2026.

Closing observations

R v HDE reads the unqualified words of s 103ZY(1) as covering differences the defence puts in issue, not only the description of the offence. It also limits what follows, because the jury applies each piece of information according to its terms. For trial counsel on either side, the work is in identifying the differences and making clear which piece of information bears on which.

Related reading

• R v Welton: a Crown address can require a direction both counsel said was unnecessary
• The King v Ko: the direction that must follow a real or significant chance
• Criminal law at Fraser Lawyers
• Contact Fraser Lawyers

Source: R v HDE [2026] QCA 207, Supreme Court of Queensland, Court of Appeal, Mullins P, Bond JA and Bradley JA, heard 29 July 2026 and delivered 20 October 2026, on an appeal against conviction and an application for leave to appeal against sentence from the District Court at Brisbane (Kent KC DCJ). The reasons are those of Mullins P, with whom Bond JA and Bradley JA agreed. Sections 103ZQ, 103ZR and 103ZY of the Evidence Act 1977 (Qld) and s 14A of the Acts Interpretation Act 1954 (Qld) were checked against the current compilations.

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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