Voir Dires in Victoria

A voir dire is a pre-trial procedure that is used to determine an issue relating to evidence. In Victoria, voir dires are governed by section 189 of the Evidence Act 2008. This page deals with voir dires in Victoria.

What is a voir dire?

A voir dire is a preliminary examination that determines questions of fact and questions of law. A voir dire can be held within a civil or within a criminal matter.

A voir dire can be used to decide whether:

• Evidence should be admitted or not;
• Evidence can be used against a person;
• A witness is competent or compellable.

Why is a voir dire held?

There is a range of purposes for which a voir dire may be held in a criminal matter.

These include:

• To determine whether admissions were made voluntarily;
• To determine whether a search was conducted lawfully;
• To determine whether an arrest was lawful;
• To determine whether a proposed witness is an expert;
• To determine whether a proposed witness is competent;
• To determine whether a forensic procedure was carried out lawfully.

Jurisdiction

A voir dire is held in whichever court is going to hear the trial or contested hearing.

When a voir dire is held in a matter that will be decided by a jury, it must be conducted in the jury’s absence. This is because the voir dire will involve discussions that may prejudice the jury.

When a voir dire is held in the Magistrates Court, it is decided by a magistrate. At the contested hearing, the magistrate must not have regard to the matters that were discussed during the voir dire.

Process for holding a voir dire

There are three steps involved in conducting a voir dire.

Apply for a voir dire

There is no right to a voir dire. If a party wants to hold a voir dire, it must convince the court that a voir dire is necessary in order for the matter to be conducted fairly.

Conduct the voir dire

During the voir dire, parties may call evidence and cross-examine witnesses, before making submissions.

Court makes a ruling

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

Defence applications

The majority of criminal voir dires are held on application by the defence. The defence generally seeks a voir dire when the prosecution is proposing to rely on evidence that the defence believes should not be admitted. Examples of common defence voir dires include a voir dire on the admissibility of a police interview and a voir dire on the lawfulness of a police search.

Prosecution applications

A voir dire can also be sought by the prosecution. The prosecution may seek a voir dire because it proposes to rely on evidence that is prima facie inadmissible.

Why do voir dires exist?

In order to be admissible in court proceedings, evidence must be relevant and lawfully obtained. There are strict rules about how the police may obtain evidence but sometimes the police do not adhere to these rules.

A voir dire is a way of holding the police accountable when evidence has been obtained improperly. It ensures that police do not get away with securing convictions by disregarding rules that exist to protect the civil liberties of suspects.

Example: voir dires on police interviews

In order for a record of a police interview to be admissible in court, the accused must have participated in the interview voluntarily. This means that they were not forced or pressured into answering the police’s questions.

The police are not allowed to question a suspect when the suspect is sick, injured, tired or intoxicated. They are not allowed to interview a suspect who does not speak English fluently without an interpreter and they are not allowed to question a child without an adult present.

The police are also required to ‘caution’ the suspect. This means that they must advise the person that they are not obliged to answer any questions and that anything they do say may be used as evidence against them.

If a person admits committing an offence during an interview and the rules surrounding police interviews are not followed, the record of interview may be excluded from evidence if they are subsequently prosecuted. In this situation, the defence would ask the court to grant a voir dire and explain why a voir dire is necessary for the matter to be dealt with fairly. At the voir dire, the accused would give evidence of what happened when the police interviewed them. If the court considered that the police acted improperly, it would rule that the interview was inadmissible.

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