What is the VOIR DIRE?
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.
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
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
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
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
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
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:
the probative value of the evidence is outweighed by the danger of the unfair
prejudice to the defendant in the proceedings; and
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
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;
offence itself and the nature of the offence which brings the defendant before
the court; and
proceedings have been initiated due to the impropriety; and
as well as the gravity of the impropriety in obtaining such evidence; and
the party who obtained the evidence improperly (or whether the impropriety) was
reckless or deliberate; and
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.
note that this page or any other pages on our website (including any other
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