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Voir Dires in South Australia

A voir dire is a pre-trial proceeding that is held to determine whether a particular piece of evidence will be admitted at trial. It is held prior to the jury trial (in a Supreme Court or District Court matter) or prior to the contested hearing (in a Magistrates Court or Children’s Court matter). This article deals with voir dires in South Australia.

In the course of investigating offences, police conduct interviews with suspects, search properties, obtain CCTV footage and get substances tested. Failure by the police to comply with the proper procedures when gathering evidence can result in a voir dire. In the Supreme Court or District Court, voir dires are held before the judge, in the jury’s absence. In the Magistrates Court, voir dires are held before a magistrate. If the evidence is found to be inadmissible at the voir dire, the court must hear the matter without regard to it. If the matter is being decided in the Magistrates Court, the magistrate must put the evidence that they heard during the voir dire out of their mind.

When is a voir dire conducted?

A voir dire is conducted when a party requests it and the court grants it. The defence generally requests a voir dire when it is seeking to have an item of prosecution evidence, which is prima facie admissible, excluded from the proceeding. In some situations, the prosecution may seek a voir dire when it wants to have evidence that is prima facie inadmissible, admitted.

The court will only grant a voir dire if convinced that there is a significant issue that needs to be determined.

Why is a voir dire held?

A court may hold a voir dire for any of the following purposes:

  • To determine whether evidence should be admitted or not (Evidence Act, Section 189);
  • To determine whether evidence can be used against the accused (Evidence Act, Section 189);
  • To exclude evidence that was improperly obtained (Evidence Act, Section 138);
  • To determine if a witness is competent or compellable(Evidence Act, Section 189);
  • To persuade the court to exercise its discretion to exclude evidence based on the circumstances under which it was obtained (evidence Act, Section 135).

What sort of evidence can lead to a voir dire?

Voir dires may be run in a numnber of situations. Some of the common situations that lead to voir dires are outlined below.


A voir dire will often be held when the accused has made admissions to the police that appear to have been involuntary. This may be because the accused was not properly cautioned, or was questioned when they were intoxicated, sick, injured, tired, or without an interpreter. The admissibility of admissions can also become an issue because the accused was under 18 and was questioned without an adult present. In any of these situations, it is likely that the evidence obtained would be excluded.

A voir dire on a police interview usually involves cross-examination of the police officers and other people who were involved in obtaining the admissions. The defence may also call evidence, usually from the accused.

Evidence obtained illegally

A voir dire may be held if the defence believes that an item of evidence was obtained illegally. This may be because police conducted a search without a warrant or because they exceeded the scope of the warrant when conducting the search.

A voir dire in this situation will involve the cross-examination of the police members who conducted the search and hearing evidence from any other person who witnessed their actions.

Chain of custody has been broken

A voir dire will sometimes be held if the integrity of scientific evidence is in question. When police investigate drug offences, they must store and handle the substance in a particular way to ensure that the results obtained from testing are reliable and there is no opportunity for the evidence to be tampered with or compromised. Everyone who handled the substance must be able to give an account of how it was stored and passed to the next person who dealt with it. This is called the ‘chain of custody’.

If there the chain of custody appears to have been broken in a drug matter, a voir dire will need to be held. A voir dire in this situation gives the defence the opportunity to cross-examine everyone who was involved in the chain of custody and to expose any failures to comply with procedures that may mean the evidence should be excluded.

Why are voir dires important?

In many cases, the exclusion of evidence can mean the difference between a finding of guilt and an acquittal. Voir dires are important because they are a way for the public and courts to hold the police accountable when they have failed to follow procedures or accord a suspect their rights. A voir dire can ensure that police misconduct is detected and that there are consequences of the police flouting the rules in their eagerness to secure a conviction. Just as a criminal trial holds an individual offender accountable for their actions, a voir dire holds the police accountable for theirs.

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


Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.

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