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Voir Dires (Qld)

Voir Dire is French for ‘to speak the truth’. It is a term used to refer to any examination in either a civil or a criminal proceeding or enquiry in court which is not part of the trial itself. A voir dire is a procedure designed to elicit facts to determine whether certain evidence may or may not be given in proceedings. It is a ‘trial within a trial’. This article deals with voir dires in Queensland. 

What issues are decided in a voir dire?

A voir dire is held to determine an issue relating to what evidence is to be heard during the trial. Examples of questions that may be the subject of voir dires are whether a child is competent to take an oath, whether a person is an expert, whether documents are admissible, and other matters of competence and admissibility.   

Who applies for a voir dire?

An application for a direction or ruling by a trial judge can be made by either the defence or the prosecution. The voir dire is conducted by the party who seeks a ruling from the court.

If a piece of evidence is prima facie inadmissible, but the prosecution is seeking to have it admitted, then the prosecution bears the burden of convincing the court that it is admissible.

If a piece of evidence is prima facie admissible but the defence is seeking to have it excluded, then the defence bears the burden of convincing the court that it is inadmissible or should be excluded.

How is a voir dire conducted? 

The court will make a ruling on the admissibility of evidence after making findings of fact. If a voir dire is being held in relation to the admissibility of a police interview then relevant facts include whether the accused participated in the interview voluntarily and whether they were properly cautioned. 

The court will also hear submissions from defence and prosecution in relation to the admissibility of the evidence before making its decision. 

When is a voir dire held?

A voir dire is usually conducted before the trial or contested hearing commences; however, it can be held at any stage of the proceedings. A voir dire may be held after a trial or contested hearing has commenced if issues relating to the admissibility of a piece of evidence come to light only after the trial or hearing has begun.  

When a voir dire is conducted in a matter that is to be decided by a jury, it is heard in the absence of a jury. 

Defence applications

Voir dires in criminal matters are more commonly held at the application of the defence. Some examples of when the defence may seek a voir dire are in relation to whether an arrest was lawful, whether admissions made by the defendant to police are admissible, whether a search conducted by police was lawful or in relation to the integrity of scientific evidence such as DNA or the forensic analysis of an allegedly prohibited substance. 

Brotic v Queensland Police Service

In the 2018 District Court decision of Brotic v Queensland Police Service, the defendant was charged with contravening a police direction. A voir dire was held to determine whether the man’s arrest had been lawful. 

Evidence of the arresting Senior Constable was heard, and a video of a conversation that he had with the defendant was played to the court. The focus of the voir dire was on whether the police officers had complied with section 633 of the Police Powers and Responsibilities Act.

That provision requires police to warn a person that:

  • failure to comply with a police direction or requirement without a reasonable excuse is an offence and;
  • they may be arrested for that offence. 

The officer, in this case, had failed to warn the defendant that it was an offence to fail to comply with the direction. The court, therefore, found that the arrest had been unlawful, and the charges were dismissed.  

A voir dire is a strategy used in contested criminal matters as part of the trial process. When a voir dire is held at the application of the defence and a crucial piece of evidence is excluded, this may result in the accused being acquitted. An important part of preparing a contested criminal matter is identifying evidential issues that may require determination through a voir dire.  

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

Lisa Taylor - Senior Associate - Gympie

This article was written by Lisa Taylor - Senior Associate - Gympie

Lisa holds a Masters in Law and a Bachelor of Laws. She also holds a Graduate Diploma of Legal Practice from the Australian National University and is admitted as a Lawyer to the Supreme Court of Queensland and as a solicitor to the High Court of Australia. As a senior associate, Lisa’s focus is on advocacy. She ensures all clients...

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