A voir dire is a pre-trial proceeding that is held to determine whether evidence will be admitted or excluded at trial. It is a ‘trial within a trial’ and is held prior to a jury trial (in a Supreme Court, Country Court or District Court matter) or prior to the contested hearing (in a Magistrates Court matter).
In the course of investigating criminal offences, police conduct interviews with suspects, search properties, obtain CCTV footage, take fingerprints and DNA, and have substances suspected of being illicit drugs, tested. In each state and territory, there are law that govern how police must conduct these procedures. When the defence suspects that police have failed to comply with these laws, it may request a voir dire. If the evidence is found to have been improperly obtained, this may result in it being inadmissible at trial.
In the Supreme Court, County Court or District Court voir dires are held before the judge, without the jury present. In the Magistrates Court and Local Court, a voir dire is held before the magistrate. If the evidence is found to be inadmissible, the magistrate must hear the matter without having regard to it. In other words, the magistrate must put the evidence out of their mind and proceed to decide the matter without having regard to it.
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