Voir Dire (NSW)

A voir dire is a pre-trial procedure that is held to determine the admissibility of a particular item of evidence. It is held when one party challenges the admissibility of evidence that the other party plans to adduce. It consists of the court making findings of fact and applying the law after hearing evidence and submissions from both sides. Voir dires can occur in both criminal and in civil matters. This article will deal with criminal matters.

Why hold a voir dire?

A voir dire is held when a party wishes the judge or magistrate to determine questions of evidence law prior to, or occasionally during, a trial or contested hearing.

The following are issues that are determined during a voir dire:

• Whether an admission by the accused was made voluntarily;
• Whether a witness may claim privilege;
• Whether a police search was lawful;

How does a party request a voir dire?

A party is not entitled to a voir dire. A court may grant a voir dire where a party has identified a purpose and the evidence proposed to be adduced. The court will not allow a voir dire if it thinks the party seeking it intends to use it for an improper purpose.

Conduct of a voir dire

A voir dire may be heard in the Local Court or Children’s Court (where the matter is listed for a contested hearing before a magistrate) or in the Supreme Court or District Court (where the matter is listed for trial). The evidence that a witness gives during a voir dire does not form part of the evidence before the court in the trial or hearing.

Where a party is seeking to exclude evidence that is prima facie admissible, that party bears the onus of convincing the court that the evidence should be excluded. Most commonly, it is the defence that is seeking to have evidence excluded. However, sometimes the prosecution will seek to exclude evidence that the defence wishes to adduce.

Parties may call any person who is a competent witness to give evidence in a voir dire. The judge or magistrate determines whether a party may cross-examine a witness. They may also ask questions of witnesses to clarify issues. The judge or magistrate may discontinue the voir dire if continuing it is unlikely to be useful.

If a void dire is being held in a matter that is to be decided by a jury, the voir dire will almost always be heard in the jury’s absence.

Improperly obtained evidence

Evidence that was obtained unlawfully is not to be admitted in a court proceeding unless the desirability of admitting it outweighs the undesirability of admitting material that has been obtained unlawfully (section 138 of the Evidence Act).

In determining whether to admit evidence that was obtained unlawfully the court may consider:

• The probative value of the evidence;
• How important the evidence is in the proceeding;
• The nature of the offence and the nature of the accused’s defence;
• The gravity and nature of the impropriety in obtaining the evidence, whether the impropriety was deliberate or reckless and whether it contravened an established human right;
• How difficult it would have been to obtain the evidence without committing the impropriety;
• Whether any other proceeding has occurred in relation to the impropriety.

Cautions

An admission obtained from a person during questioning was obtained unlawfully if the person conducting the questioning:

• Did or failed to do something knowing it was likely to substantially impair the person’s ability to respond rationally to the questioning;
• Knowingly made a false statement in the course of the questioning where making the false statement was likely to cause the person being interviewed to make an admission.

Prejudicial evidence

The court must refuse to admit evidence in criminal proceedings where the evidence will result in prejudice to the defendant that outweighs the probative value of the evidence (section 137).

Outcome of voir dire

If a void dire is held and the evidence is ruled admissible, it may be adduced during the trial or contested hearing. If the evidence is found to be inadmissible or is excluded via the exercise of judicial discretion, it must not be relied on or referred to. If the matter is to be heard by a jury, the jury will not be told the nature of the voir dire that occurred. If the trial is to be decided by a judge alone (or by a magistrate), they must not take into account the evidence they have heard during the voir dire.

If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Armstrong Legal.