In criminal trials, jury directions provide essential scaffolding for fair judgment. Traditionally, many of these have developed at common law and are distilled in judicial benchbooks as model or guiding formulations.
Over time, practitioners have relied upon these tools to ensure that the evidence they are eliciting either in chief or in cross-examination is consistent with the law that a jury will be directed on by the Trial Judge. Beyond these long‑standing norms emerge statutory directions, commands of the legislature that demand precise application. Their significance lies not only in what they say, but, if they apply, in their mandatory nature.
Benchbook directions serve as flexible aids. A trial judge may adapt them or elect not to give them, depending on the case’s contours and the strength of submissions from counsel. Statutory directions are legislative commands, which arise once their preconditions are met. This subtle but crucial distinction places an onus on practitioners to ensure that where the possibility of a statutory direction arises, the evidence meets its requirements.
Take, for example, the Evidence Act 1977 (Qld) subdivision 4 and the suite of trial directions to be applied in the case of offending of a sexual nature. At section 103ZY, if evidence is given or likely to be given that suggests a difference in the complainant’s account bearing on truthfulness or reliability, the judge must deliver a specific direction. The direction explains that variations in account are common, due to trauma or memory issues, and that such inconsistencies do not inherently signal dishonesty. It emphasises that it remains for the jury to determine whether these differences matter.
A trial judge must give any one or more of the directions set out in those subdivisions of the Evidence Act when there is a good reason to give the direction or it is requested by the party, unless there is a good reason not to give the direction. While there is no particular form of language for the direction (Evidence Act 1977 (Qld) s103ZQ(5)) the statutory language should be considered by practitioners in considering whether the conditions arise for the direction to be given.
This dynamic is illustrated in the Court of Appeal judgment R v PBT [2025] QCA 152. In that case, the Court overturned the Appellant’s convictions on the basis that the evidence of the recorded interview with the defendant ought not have been admitted. In that case, however, a second ground of appeal related to whether the direction pursuant to section 103ZY ought to have been given.
In that particular case, the complainant’s evidence was not relied upon by the Crown. The complainant had originally given recorded evidence to Police and then recanted that evidence. In the meantime, the defendant’s record of interview had been taken. The circumstances of the trial required that, while it was not relied on, the complainant’s evidence be played to the Jury.
This led to an unusual situation where the jury heard the complainant’s evidence but were told it could “in no way be used to support the Crown case” and then were directed in accordance with section 103ZY about the complainant’s evidence.
Overturning the conviction on another basis, the Court of Appeal took the opportunity to observe that the statutory directions pursuant to the Evidence Act, and in this case 103ZY, require the parties to carefully consider whether a direction is in fact called for in the circumstances of the particular case. Giving the direction in circumstances where it is not required by the statute may well cause a jury to be confused.
In practice, lawyers must carefully assess the circumstances under which statutory directions arise. This involves analysing the evidence, determining its probative value, considering the objectives of specific lines of cross-examination, and anticipating the potential need for trial directions. These considerations are essential aspects of effective advocacy during trial proceedings.
These statutory directions are tools designed to counteract biases and myths around sexual offence complainants. Their utility relies on diligent advocacy. It is the responsibility of practitioners to identify their trigger, argue their necessity clearly, and help shape them sensitively so that they do justice in the courtroom.
This alignment between legislative prescription and courtroom clarity is where effective trial advocacy shines.