Voir Dires in Victoria
A voir dire is a pre-trial procedure used in both criminal and civil proceedings to determine an issue relating to evidence. In Victoria, section 189 of the Evidence Act 2008 governs voir dires. This page deals with voir dires in Victoria in criminal matters.
What is a voir dire?
A voir dire is a preliminary examination used to determine questions of fact and questions of law. It can be used to decide whether:
- Evidence should be admitted or not;
- A witness is competent or compellable;
- Evidence can be used against a person.
Why is a voir dire held?
A voir dire may be held for a range of purposes in a criminal matter.
- To determine whether admissions were made voluntarily;
- To determine whether an arrest was lawful;
- To determine whether a search was carried out lawfully;
- To determine whether a forensic procedure was conducted lawfully;
- To determine whether a proposed expert witness is an expert;
- To determine whether person is competent to give evidence.
A voir dire is held in the court that is going to hear the trial or contested hearing.
When a voir dire is held in a matter that is to be decided by a jury, it must be conducted in the absence of the jury. The voir dire will involve discussions that may prejudice the jury. It evidence is found to be inadmissible, the jury must not have heard the evidence.
Process for holding a voir dire
Conducting a voir dire involves three steps.
Applying for a voir dire
A party to a matter does not have a right to a voir dire. If the defence or prosecution wants to hold a voir dire, it must convince the court that this is necessary in order for the matter to be conducted fairly.
Conducting the voir dire
During the voir dire, parties may call evidence, cross-examine witnesses and make submissions.
Receiving a ruling from the court
At the conclusion of the voir dire, the court will make findings of fact and deliver a ruling. If the court finds evidence to be inadmissible, the evidence may not be adduced or used in any way during the trial. If the court finds the evidence to be admissible, it may be adduced and relied on at the trial or hearing.
Most criminal voir dires are held on application by the defence. The defence generally seeks a voir dire because the prosecution is proposing to adduce evidence that the defence believes should not be admitted. Common defence voir dires include a voir dire on the admissibility of the record of interview and a voir dire on the lawfulness of a search.
A voir dire can also be held on application by the prosecution. The prosecution will generally seek a voir dire when it proposes to rely on evidence that is prima facie inadmissible but which it argues should be admitted – for example, for public policy reasons.
Why do voir dires exist?
Evidence is admissible in court proceedings only if it is relevant and lawfully obtained. There are strict rules about how evidence may be obtained but sometimes the police do not adhere to these rules.
A voir dire holds the police accountable when they have obtained evidence improperly. The procedure can prevent police from getting away with securing convictions by disregarding the rules that exist to protect suspects’ civil liberties.
Example: voir dires on police interviews
In order for the contents of a police interview to be admissible at trial, the accused must have participated voluntarily. This means that they must not have been forced or pressured into answering the police’s questions.
The police are not permitted to question a suspect when the person is injured, sick, tired or intoxicated. Police are not allowed to interview a suspect who is not fluent in English without an interpreter, and they are not allowed to question a juvenile without an adult present.
The police must also ‘caution’ the suspect before attempting to interview them. This means that they must inform the person that they do not have to answer any questions and that anything they say during the interview may be used as evidence against them.
If a person admits to an offence during a police interview and the rules surrounding interviews were not followed, the record of interview may be excluded from evidence if the person is subsequently prosecuted. In this situation, the defence is likely to ask the court for a voir dire on the interview. During the voir dire, the accused would give evidence of what happened leading up to and during the interview. If the court is satisfied that the police acted improperly, it is likely to rule that the interview is inadmissible.
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