Voir Dires in Western Australia
A voir dire is a pre-trial proceeding that is held to determine the admissibility of evidence. Evidence may be inadmissible because it is not relevant or because it was unlawfully obtained. When parties to a matter disagree about the admissibility of evidence, the court may hold a voir dire. This page deals with voir dires in Western Australia.
What is a voir dire?
The words ‘voir dire’ mean ‘speak the truth’. A voir dire can be held within a civil or a criminal matter and is used to determine questions of fact as well as questions of law.
In Western Australia, voir dires are used to determine whether an item of evidence will be admitted as evidence in the trial or contested hearing. They are most commonly applied for by the defence and used to try to exclude evidence on the basis that it is inadmissible or should be excluded for public interest reasons. However, the prosecution can also apply for a voir dire.
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 is going to be decided by a jury, it must be heard in the jury’s absence. This is because if the evidence is found to be inadmissible, the jurors must not have heard it as it could taint their views of the accused.
When a voir dire is heard in the Magistrates Court, the magistrate must conduct the hearing without regard to the matters that were discussed during the voir dire.
What issues are determined at a voir dire?
There is a very wide range of issues that can be determined during a voir dire. They include:
- Whether admissions were made voluntarily;
- Whether a search was conducted lawfully;
- Whether an arrest was lawful;
- Whether a proposed witness is an expert;
- Whether a child is capable of giving evidence;
- Whether forensic evidence was collected or analysed lawfully.
Voir dires in criminal matters are most commonly held on application by the defence. The defence generally seeks a voir dire in an attempt to exclude evidence that the prosecution proposes to rely on such as a police interview or items found during the course of a police search.
Voir dires in criminal matters can also be held on application by the prosecution. When this occurs, the prosecution is generally seeking to have evidence that is prima facie inadmissible, admitted at trial. The prosecution may make this application on the basis that it is in the public interest for the evidence to be admitted.
Process of running a voir dire
There are three stages involved in running a voir dire. First, a party must apply to the court for a voir dire. Second, the party must conduct the voir dire. Finally, the court must make a finding.
Apply for a voir dire
The court will not necessarily grant a voir dire. The party seeking a voir dire will have to convince the court that a voir dire is necessary to ensure a fair trial.
The party seeking the voir dire must outline what is seeks to establish in relation to the evidence and how this affects the case as a whole.
The court will either grant a voir dire, or refuse the request.
Conduct the voir dire
The party that sought the voir dire bears the burden of establishing that the evidence in question should be excluded (or admitted). The court will hear evidence and cross-examination from both parties, as well as submissions from each party as to the admissibility of the evidence.
Court makes a finding
At the end of the voir dire, the court will make findings of fact and law and give reasons. The court will then make a decision as to whether the evidence is to be admitted at trial.
Outcome of a voir dire
If after a voir dire, the court finds that the evidence is admissible, it may be adduced during the course of the trial. If the court finds the evidence to be inadmissible, it cannot be adduced at the trial or used in any way.
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