Voir Dires (Tas)
A voir dire is a pre-trial procedure that is held when one party objects to evidence that the other party seeks to adduce. Its purpose is to decide whether the evidence ought to be admitted. The court makes this decision after hearing evidence and submissions from both sides. This page deals with voir dires in criminal matters in Tasmania.
Evidence law in Tasmania is governed by the Evidence Act 2001.
Under section 189 of the Evidence Act 2001, a voir dire can be held to determine whether:
- Evidence should be admitted
- Evidence can be used against a person
- A witness is competent or compellable
A voir dire in a matter that is to be decided by a jury is to be held in the jury’s absence unless the court orders otherwise.
Who seeks to hold a voir dire?
Most commonly in criminal proceedings, the defence seeks to hold a voir dire in an attempt to have evidence that the prosecution is proposing to rely on, ruled inadmissible. However, in some cases, the prosecution may also seek to hold a voir dire. This is usually because it is seeking to have evidence admitted that is prima facie inadmissible.
The party that is seeking the voir dire should clearly outline which parts of the evidence are objected to and whether there are any parts that are not at issue. A voir dire may include oral evidence, but cross-examination of witnesses must be limited to the matters that are at issue in the voir dire.
If both parties agree, some or all of the issues to be decided at a voir dire may be decided ‘on the papers’. This means that the court will make its determination based on a review of witness statements and other documents rather than hearing oral evidence.
When is a voir dire held?
A voir dire is held when there is a disagreement about an evidential issue between the parties and the court agrees to hold a preliminary inquiry. There is no automatic right to a voir dire and the court will only allow one if satisfied that there is a significant issue to be determined.
Some situations that may lead to a preliminary inquiry are outlined below.
If the accused has made admissions and there is doubt as to whether they were made voluntarily, the defence may ask the court to hold a voir dire.
If the court finds that admissions were obtained through oppressive conduct, they will be excluded from evidence under section 84 of the Evidence Act 2001.
If the court considers that it would be unfair to the accused to admit evidence of the admissions because of the circumstances under which they were made, it may exercise its discretion and exclude evidence under section 90 of the Evidence Act 2001.
Evidence improperly or illegally obtained
If the prosecution seeks to rely on evidence that was improperly or illegally obtained, a voir dire may be held to determine whether it should be admitted. Evidence that was obtained improperly will not be admitted unless the desirability of admitting it outweighs the undesirability of admitting evidence that was improperly obtained.
If the defence establishes that evidence was improperly obtained, the prosecution then bears the burden of establishing that the evidence should nonetheless be admitted.
Tendency and coincidence evidence
In some types of criminal cases, the prosecution may seek to adduce evidence that shows that the accused has or had a tendency to behave in a particular way. Such evidence may be admitted if the court is satisfied that it has significant probative value.
Tendency evidence may be objected to on the basis that it is not evidence of a tendency or that it does not have ‘significant probative value’.
Outcome of the voir dire
If evidence is excluded, the matter must be heard without reference to that evidence. If the matter is being decided by a jury, the jury must not hear the evidence that was excluded. If the matter is to be decided by a magistrate, the magistrate must put the evidence out of their mind when deciding the matter and must not be influenced by it when they make their decision.
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