Voir Dires in the ACT

In a criminal matter, it is common for a voir dire to be held prior to the trial or hearing. A voir dire is a preliminary inquiry held to determine a question relating to evidence. This page deals with voir dires in the ACT.

What is a voir dire?

A voir dire is like a trial within a trial. It is a preliminary proceeding that is held when parties are in dispute about an evidential issue. During a voir dire, evidence is called, and submissions are made, and the court then makes a ruling as to whether or not the evidence in question can be used.

Under section 189 of the Evidence Act 1995, a voir dire can be held to decide:

• Whether evidence should be admitted;
• Whether evidence can be used against a person;
• Whether a witness is competent or compellable.

Purposes of a voir dire

A voir dire in a criminal matter can be held for a range of reasons. Some of these are:

• To determine whether a police interview was conducted lawfully;
• To determine whether a police search was conducted lawfully;
• To determine whether forensic evidence was obtained or analysed lawfully;
• To determine whether an arrest was lawful;
• To determine whether a witness is competent or compellable;
• To determine whether a proposed witness is an expert.

Jurisdiction

A voir dire is held in the court that will hear the trial or contested hearing.

When a voir dire is held in a matter that a jury will decide, the voir dire is heard by the judge alone, as the jurors’ views must not be tainted by the matters discussed during a voir dire.

When a voir dire is heard in the Magistrates Court, it is often heard by the same magistrate who will decide the contested hearing. The magistrate must disregard the matters they heard during the voir dire when they are presiding over the hearing.

Procedure for a voir dire

A party to a criminal matter does not have a right to a voir dire. A voir dire will be held only if the court is satisfied that it is necessary in order for the matter to proceed fairly. The party asking for a voir dire should make it clear what evidence is being challenged, the basis for the challenge, and what issues need to be decided.

During the voir dire, evidence that is relevant to the issues being decided may be called. Each party will then make submissions as to how the evidence should be treated.

The court will then make findings of fact and a ruling on the evidence. If the evidence is found to be admissible, it may be adduced at the trial. It must not be used in any way if it is found to be inadmissible.

Defence applications

Most voir dires in criminal matters are held on application by the defence; however, the prosecution may also seek a voir dire in some cases. Defence voir dires typically involve an attempt to exclude evidence that the prosecution is proposing to rely on. Commonly, defence voir dires relate to the lawfulness of police interviews and police searches.

Prosecution applications

When the prosecution applies for a voir dire, it is typically because it proposes to rely on evidence that is prima facie inadmissible. In this situation, the prosecution bears the burden of convincing the court to admit the evidence.

Why do voir dires exist?

Evidence is only admissible when it is relevant and when it was obtained lawfully. A voir dire is a way of holding the police accountable in a situation where they have overstepped their authority or failed to follow the correct procedures when investigating a suspect. By successfully challenging evidence during a voir dire, the defence can prevent the police from getting away with disregarding the rules when obtaining evidence and ensure that prosecutions that rely on evidence that was improperly obtained are not successful.

Example: police searches

A common situation where the defence will seek a voir dire is when the accused alleges that a search was unlawful. A search may be unlawful because it was conducted without a warrant, exceeded the warrant’s scope, or was carried out improperly.

When a voir dire is held to determine the lawfulness of a search, the accused and others who were present will give evidence about how the search was conducted. Police officers who were involved in the search may also give evidence. The court will then rule on whether the search was lawful and whether the evidence obtained is admissible.

If you require legal advice or representation in any legal matter, please get in touch with Armstrong Legal.