Voir Dires (NT)

A voir dire is a pre-trial procedure that is used to determine whether a particular item of evidence is admissible. Voir dires are held when one party challenges the admissibility of evidence the other party is proposing to adduce. It consists of a judge or magistrate making findings of fact and hearing submissions about the law, before making a ruling as to whether or not the evidence is to be admitted.

Why are voir dires held?

A voir dire will be held when a court needs to determine questions of admissibility prior to beginning a trial or contested hearing.

Some examples of issues that are decided are:

• Whether an accused person made admissions voluntarily
• Whether a witness may claim privilege
• Whether the police acted lawfully when conducting a search or when arresting a person

Seeking a voir dire

Parties do not have the right to a voir dire. A court may grant one when a party identifies a reason that a voir dire is necessary if it considers there is a legitimate evidential issue to be determined. A court will not allow a voir dire if it considers the proceeding is being sought for an improper purpose.

Jurisdiction

A voir dire is held in the Magistrates Court or Children’s Court where the matter is to be determined by a magistrate. It is held in the Supreme Court where the matter is to be determined by a judge and jury.

Evidence given during the proceeding does not form part of the evidence at trial.

A party that is seeking to have evidence excluded when that evidence is prima facie admissible, bears the burden of showing the court that the evidence is inadmissible. It is most often the defence that is seeking to have evidence excluded during a voir dire; however, there may be some cases where the prosecution seeks to exclude evidence that the defence proposed to adduce.

A party may also seek to have evidence that is prima facie inadmissible, admitted during a voir dire. It is more likely to be the prosecution making this application. In a voir dire where this is the case, the prosecution bears the onus of demonstrating that the evidence should be admitted.

Any competent witness may be called to give evidence. The judge or magistrate decides whether to allow a party to cross-examine a witness and may also ask questions of the witness to clarify matters. The court may discontinue the proceeding if it seems it is unlikely to be useful to continue.

Voir dires are conducted in the absence of the jury.

Improperly obtained evidence

Under the Evidence Act, evidence that was improperly obtained is not to be admitted unless the value of admitting the evidence outweighs the undesirability of admitting material that has been improperly obtained.

When deciding whether to admit such evidence, the court will consider:

• Its probative value
• Its importance to the proceeding
• The nature of the alleged offence and the defence being advanced
• How serious the impropriety in how the evidence was obtained, whether it was deliberate or reckless and whether any established human rights were breached
• How difficult it would have been to obtain the evidence without the impropriety
• Whether any action has been taken in relation to the impropriety.

Cautions

Admissions obtained during police questioning are obtained unlawfully if the person doing the questioning:

• Did or omitted to do something knowing that it was likely to substantially impair the person’s ability to respond rationally;
• Made a false statement knowing it was false and knowing that making it was likely to cause the person to make an admission.

Prejudicial evidence

Courts must refuse to admit evidence where the prejudicial weight of the evidence outweighs its probative value.

Outcome of the voir dire

If the evidence being assessed during a voir dire is ruled admissible, it may be adduced during the trial or contested hearing. If it is ruled inadmissible, it must not be referred to during the proceeding. If the matter is to be decided by a jury, the jury will not be informed of what the voir dire was about. If the trial is to be heard by a magistrate or judge alone, he or she must not take into account the evidence that was heard during the voir dire.

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