This article was written by Trudie Cameron - Practice Director – Sydney
Trudie Cameron is the Practice Director of Criminal Law and is responsible for supervising and managing the New South Wales Criminal Law team in addition to her own caseload. Trudie is an accredited specialist in criminal law, practising exclusively in criminal and traffic law. Trudie defends clients charged with both state and commonwealth offences and appears on their behalf in...
What is a Voir Dire?
A voir dire is a part of a legal proceeding where a preliminary question of law is decided. This may be the determination of whether a fact exists and/or whether a particular piece of evidence is admissible in a trial or contested hearing. A voir dire has been described as a “trial within a trial” because it may involve the calling of evidence and making of submissions which are not admissible in the trial proper.
Voir dires are often considered to be “pre-trial” or “pre-hearing” arguments. However, they can be had at any stage in relation to proceedings. They can be conducted in every jurisdiction, and not only in relation to jury trials. When a voir dire is conducted in a matter that is to be decided by a jury, it is held in the jury’s absence.
Purpose of a voir dire
The purpose of a voir dire is to allow the magistrate or judge presiding over proceedings to make a ruling about a matter which is essential to the way in which the proceedings will be run. In some cases, a ruling on the voir dire will make or break a case and as such, ventilating the issue at the start of the proceedings can result in a speedy resolution of the matter. In other matters, the ruling will affect the way in which the prosecution or defence will present its case.
Matters that may be determined
Only questions that relate to a fact, the law or the admissibility of evidence may be determined in a voir dire.
Examples of issues that may be raised and determined include:
- Whether evidence which is hearsay should be permitted to be used in the prosecution case;
- Whether evidence of a complaint made at a time soon after the alleged incident and circumstances that render it likely to be true;
- Whether a search warrant was lawful and permitted entry and/or seizure of certain evidence; and
- Whether evidence was unlawfully obtained and thus, should be excluded from the proceedings.
A judge or magistrate has the discretion to allow a voir dire and may refuse to allow a voir dire to be held where it is not deemed to be essential to ensure a fair trial.
Outcome of a voir dire
The party who seeks a ruling on the voir dire is required to satisfy the court that the ruling ought to be made. Whether the party satisfies the court that the ruling sought should be made will depend on any evidence that is called, any findings of fact made by the magistrate or judge and whether the submissions of the party are accepted by the magistrate or judge.
The magistrate or judge will ultimately hear submissions from each of the parties before making a ruling in relation to the issue of fact, law and/or admissibility raised. In some cases, the ruling will be made briefly and on the spot, whereas in other cases a magistrate or judge may adjourn the proceedings for days or weeks to prepare a judgement on the ruling.
The evidence on the voir dire does not become evidence in a hearing or trial, unless such a course is able to be consented to and appropriate in the circumstances. Such is more common in the Local Court than in jury trials.
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