Voir Dires (ACT)

A voir dire is a preliminary proceeding that can be held to determine whether particular evidence will be admitted at trial. A court may agree to hold this proceeding before a jury trial or contested hearing when one of the parties requests it. This page deals with voir dires in criminal matters in the ACT.

What is a voir dire?

In the course of investigating offences, the police may interview suspects, search properties, obtain CCTV footage and obtain forensic material and get it tested. As evidence that is not obtained lawfully can be ruled inadmissible, any failure by the police to comply with the proper procedures when gathering evidence can lead to a voir dire.

In the Supreme Court or District Court, voir dires are held before a judge alone (not in the presence of the jury). In the Magistrates Court, voir dires are held before a magistrate. Each party will make submissions as to whether or not the evidence should be admitted. If the evidence is found to be inadmissible, the court must not have reference to it when trying the accused.

In the ACT, voir dires are governed by section 189 of the Evidence Act 2011.

When is a proceeding conducted?

A voir dire is conducted when a party requests it and the court grants it. There is no automatic right to a voir dire and the court will only grant one if it is satisfied that there is a significant preliminary question that needs to be decided.

The defence will usually seek to have an item of evidence that the prosecution is seeking to rely on and that is prima facie admissible, excluded from the proceeding.

In some situations, the prosecution may seek to have evidence admitted that is prima facie inadmissible.

Why is a voir dire held?

Under section 189 of the Evidence Act 2011 court may hold a voir dire for a range of purposes, including:

• To determine whether evidence should be admitted or not
• To determine whether evidence can be used against the accused
• To determine if a witness is competent or compellable

What situations can lead to a voir dire?

Some of the common situations that lead to evidence being challenged are outlined below.

Admissions

When the accused has made admissions to the police and there is doubt that the admissions were made voluntarily, the defence may seek to have a voir dire held on the admissibility of the interview.

Admissions may be found to have been involuntary for a range of reasons, including that the accused was pressured to make admissions or was not properly cautioned, or because the accused was questioned when they were intoxicated, injured, sick, tired, or without the assistance of an interpreter. The admissibility of admissions can also become an issue where the accused was a juvenile and they were questioned without an adult present.

Under section 86 of the Evidence Act 2011, admissions must be excluded from evidence if they were obtained by oppressive, violent, degrading or inhuman conduct.

Under section 90 of the Evidence Act 2011, admissions may be excluded from evidence if it would be unfair to the accused to admit them.

Evidence obtained illegally

A voir dire may be held if the defence believes that an item of evidence the prosecution seeks to rely on was obtained illegally – for example, evidence that was collected during a house search that was unauthorised or that exceeded the scope of the warrant.

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

Forensic evidence

A voir dire will sometimes be held if the integrity of forensic evidence is in question. When police investigate drug offences, they are required to store and handle the sample in a particular way to make sure that the results obtained from testing are reliable and there is no opportunity for the evidence to be tampered with or compromised. This is also the case with forensic evidence such as DNA and blood samples. Everyone who handled the sample must be able to give an account of how it was stored and passed to the next person who dealt with it. This is known as the ‘chain of custody’.

If the chain of custody appears to have been broken, a voir dire will need to be held. This 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 allow the public and the courts to hold the police accountable for failures to follow procedures or accord a suspect their rights. A voir dire can ensure that police misconduct is detected and that there are consequences for the police for flouting the rules in their eagerness to secure a conviction. Just as a criminal trial can hold an individual accountable for their actions, a voir dire can hold the police accountable for theirs.

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