A voir dire is a pre-trial process employed to assess the suitability of specific evidence for admissibility. It takes place when one party contests the admissibility of evidence put forth by the opposing party before the trial proper. During a voir dire, the court examines evidence, considers submissions, make factual determinations while applying the relevant legal principles and answering questions of law. It is basically a trial within a trial.
Voir dire may take place in both criminal and civil cases. Section 189 of the Evidence Act 1995 (NSW) specifies that a voir dire serves the purpose of resolving inquiries related to the following matters:
The Evidence Act 1995 (NSW) establishes precise regulations governing the type and manner of evidence that can be presented during a criminal trial, forming the foundation of the voir dire process.
The term voir dire comes from the Anglo-Norman language. It is a latin term meaning “to speak the truth”. It originally referred to an oath taken by jurors to tell the truth.
A voir dire takes place upon the request of either the defence or the prosecution. The defence typically seeks a voir dire when it aims to exclude a piece of evidence from the trial, even though it appears to be admissible on the surface. On the other hand, the prosecution may request a voir dire to admit evidence that seems to be initially inadmissible. A voir dire is conducted in the absence of the jury.
The right to a voir dire is not automatic. The court will grant a voir dire only if it believes there is a substantial matter that needs to be resolved.
The defence has the option to conduct a voir dire with the intention of achieving any of the following objectives:
An accused has no “right” to a voir dire hearing.
“It is of the utmost importance that practitioners and judges always remember that the grant of a voir dire hearing is a matter of discretion not of right, and that a party who seeks a voir dire hearing must first satisfy the judge that there is reasonable ground for departing from the ordinary procedure of the trial to that extent. It is important that counsel seeking a voir dire identify the issues to which it is directed…” – per Badgery Parker J, McInernay J agreeing, R –v Hawkins, unreported CCANSW 17 December 1992.
In general, it is the responsibility of the prosecution to prove the facts presented by the evidence during the voir dire. However, there is one exception to this rule. When your challenge is based on the discretion to exclude unlawfully or improperly obtained evidence under section 138 of the Evidence Act, you are required to prove the existence of unlawful or improper conduct that forms the basis of your application.
It is crucial to emphasize section 142 of the Evidence Act, which sets the standard of proof for questions regarding admissibility. The standard is based on the balance of probabilities, and this applies to both the defence and prosecution sides.
After carefully evaluating the submissions and evidence during the voir dire and considering arguments from both parties, the judge will render a decision regarding the presentation of the witness or evidence during the trial.
Potential decisions may include: