What is the VOIR DIRE?
A ‘Voir Dire’ in the simplest terms is a procedure which is conducted prior to the Trial taking place where parties in the proceedings make legal arguments as to the admissibility of some evidence and the court decides in relation the admissibility of a particular item of evidence in the proceedings.
The ‘Voir Dire’ occurs in Civil matters as well as Criminal Law matters. It should be noted that a party is NOT simply entitled to a ‘Voir Dire’ as it is in the Court’s discretion to grant the ‘Voir Dire.’
The Voir Dire is conducted when one party decides to challenge the admissibility of some item of evidence in circumstances where the other party is seeking to rely on it. The Court will hear submissions (and sometimes evidence from both parties, defence, and the prosecution) and the court will subsequently make a finding of fact and work on applying the relevant laws in relation to such findings.
Purpose of a Voir Dire.
As previously discussed, the Voir Dire is conducted prior to a defended Hearing or a Trial, (particularly with respect to criminal law matters) and the purpose of the Voir Dire is for the Court to determine whether certain items of evidence should be excluded from the Hearing and as such, it is for the Court to determine whether a certain witness in the proceedings can claim privilege; it is for the court to determine whether for example a police search was lawful or whether an admission made by the defendant was made voluntarily.
It should be noted that any evidence which a witness gives during a Voir Dire does not form part of that Witnesses evidence before a Trial or before a defended Hearing.
The party who is seeking to exclude evidence bears the onus of convincing the court that such evidence should be excluded. So, for example, if the defence is seeking to exclude evidence which is prima facie admissible, the defence will bear the onus of convincing the court that such evidence is inadmissible (for reasons like the above examples).
If the Voir Dire is being held prior to a Trial (in the District Court or Supreme Court), then the Voir Dire will take place in the absence of the Jury.
What happens after the Voir Dire?
In the event that the court rules that the item of evidence is admissible then the party who is relying on that item of evidence may use that evidence during the defended hearing or during a trial. If, however, the court rules that the item of evidence is inadmissible (meaning not admissible) then the party who was seeking to rely on that item of evidence cannot rely on that item of evidence and that party cannot even refer to that item of evidence.
Matters which the Court take into consideration during the Voir Dire?
Below is a list of some of the matters which the court takes into consideration during a Voir Dire. It should be noted that those considerations are on a case-by-case basis:
· Whether the probative value of the evidence is outweighed by the danger of the unfair prejudice to the defendant in the proceedings; and
· With respect to admissions obtained from a defendant during police questioning- whether the police did or failed to do something knowing that it was likely to substantially impair the defendant’s ability to respond rationally to the question(s) ; and
· Whether a false statement was made during the police’s questioning of the defendant and whether it was likely to cause the defendant (who was being interviewed) to make an admission as a result of that false question; and
· The offence itself and the nature of the offence which brings the defendant before the court; and
· Whether proceedings have been initiated due to the impropriety; and
· Nature as well as the gravity of the impropriety in obtaining such evidence; and
· Whether the party who obtained the evidence improperly (or whether the impropriety) was reckless or deliberate; and
· Whether such impropriety had contravened an established human right.
It is very important that you speak with a lawyer so that you can get the appropriate legal advice which you require prior to going to court.
Our team of experienced solicitors are there for you and can help you answer all your questions, so be sure to contact Nicopoulos Sabbagh Lawyers.
*This article correctly reflects the Laws of NSW as at 13th October 2022.
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