Voir Dires in Queensland

A voir dire is a pre-trial procedure that is held to determine whether certain evidence may or may not be given in proceedings. It can be held within either a civil or a criminal matter. This article deals with voir dires in Queensland criminal matters. 

What issues are decided in a voir dire?

A voir dire is held to determine the admissibility of a piece of evidence that is proposed to be adduced during a trial. Some examples of when a voir dire may he held are:

• to determine whether a child is competent to take an oath;
• to determine whether a proposed witness is an expert;
• to determine whether admission were made to the police voluntarily;
• to determine whether a search was conducted lawfully.

Jurisdiction

A voir dire is held in whichever court is going to hear the trial or contested hearing. In Queensland, this may be the Magistrates Court, Children’s Court, District Court or Supreme Court.

Who applies for a voir dire?

Either the defence or the prosecution can apply for a voir dire. 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 seeks to have it admitted, then the prosecution must convince the court to admit the evidence.

If a piece of evidence is prima facie admissible but the defence seeks to have it excluded, then the defence must convince the court that the evidence is not admissible or should be excluded.

How is a voir dire conducted? 

During a voir dire, a court makes findings of fact and then makes a ruling on the admissibility of the evidence. If a voir dire is held to determine the admissibility of a police interview then relevant facts include whether the accused was properly cautioned and whether they were sick, injured or intoxicated.  

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

When is a voir dire held?

A voir dire is usually held before the trial or contested hearing starts; 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 about the admissibility of evidence arise only after the trial or hearing has begun.  

When a voir dire is held in a matter that is to be decided by a jury, it is heard in the absence of a jury by a judge alone. When a voir dire is held in the Magistrates Court, the magistrate must conduct the contested hearing without regard to the evidence and submissions that were heard during the voir dire.  

Defence applications

Voir dires in criminal matters are most often held on application by the defence. Hey are generally held in an attempt to have an item of evidence that the prosecution is seeking to adduce, excluded from evidence.

Some examples of when the defence may seek a voir dire are when there is a possibility that an arrest was unlawful, where the defence claims that admissions made by the accused to police were made involuntarily and are therefore inadmissible, where a search conducted by police may have been unlawful or in relation to the integrity of scientific evidence such as DNA or the forensic analysis of a substance. 

Prosecution applications

It is far less common for a voir dire to be held in a criminal matter on application by the prosecution. However, this may occur in a case where the prosecution seeks to adduce evidence that is prima facie inadmissible.

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 his 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, which requires police to warn a person that failure to comply with a police direction or requirement without a reasonable excuse is an offence for which they may be arrested. 

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 found that the arrest had been unlawful, and the charges were dismissed.  

Conclusion

A voir dire is a strategy that can be used in contested criminal matters as part of the trial process. When a voir dire is held at the defence application and a crucial piece of evidence is excluded, this can result in an acquittal. An important part of preparing a contested criminal matter is determining whether there are any evidential issues that may require determination through a voir dire.  

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.