Courts Tasmania

THE CONDUCT AND MANAGEMENT OF A VOIR DIRE

(Notes for a presentation by the Hon Alan Blow OAM, Chief Justice of Tasmania

and Daryl Coates SC, Director of Public Prosecutions, at the Law Society

of Tasmania's Criminal Law Conference, 26 February 2016)

Some basic points

A voir dire is essentially a trial within a trial, conducted so that a judge can decide, when evidence has been objected to, whether that evidence is to be admitted or not to be admitted.

In the context of a trial by jury, a voir dire is invariably conducted in the absence of the jury: Evidence Act 2001, s 189(4).  A voir dire can also be conducted in the Magistrates Court, or in any proceeding without a jury.

A criminal trial is "deemed to begin when the accused is called upon to plead": Criminal Code, s 351(6).

After the accused person has pleaded, but before the empanelment of the jury, the court may determine questions of admissibility of evidence pursuant to s 361A(1) of the Criminal Code.  That subsection relevantly provides as follows:

"(1) After an accused person has been called upon to plead as provided in section 351(1), all or any of the following may occur before a jury is sworn if the court thinks fit:

(a) …;

(b) the court may determine any question of law or procedure that has arisen or is expected to arise in the trial;

(c) the court may determine any question of fact that may lawfully be determined by a judge alone without a jury;

(d) the court may determine any other question that it considers necessary or convenient to determine in order to ensure that the trial will be conducted fairly and expeditiously;

(e) ...".

If the trial is aborted, or if the jury fails to agree, a s 361A determination has the same status at the new trial as it had at the first trial.  That is because of s 361A(2), which provides as follows:

"(2) If —

(a) an admission, determination or direction is made or given under subsection (1); and

(b) a new trial of the indictment is had at the same or any future sittings of the court, whether before the same or a different judge —

the admission, determination or direction has the same status for the purposes of the new trial as if it had been made or given, between the arraignment of the accused and the empanelment of the jury, during that new trial."

Sometimes it is more convenient to empanel a jury, send them away, and conduct a voir dire to determine a question of admissibility before counsels' opening speeches. If defence counsel anticipates objecting to evidence that the Crown is likely to rely on, defence counsel should tell the prosecutor of the proposed objection, and ask the prosecutor not to refer to the evidence in question during his or her opening speech.

Another possibility is for a voir dire to be conducted after the witnesses have started to give evidence.

The court has a discretion as to which party presents evidence first on the voir dire: R v Turner (No 12) [2001] TASSC 103. However the defence is rarely, if ever, compelled to go first.

Prima facie, all evidence on a voir dire is to be given orally.  In practice, counsel very often seek to have questions of admissibility determined wholly or partly "on the papers".

In proceedings on the voir dire, the burden of proof of a fact is upon the party asserting that fact.

In proceedings on the voir dire, the standard of proof is proof on the balance of probabilities: Evidence Act, s 142.

If a witness has commenced giving evidence before a jury, and needs to give evidence on the voir dire, that witness must first swear another oath or make another affirmation.  That is to say, the voir dire is treated as a separate proceeding, requiring a fresh oath or affirmation.  The form of oath or affirmation is the same as the form used for evidence before the jury.

If the accused gives evidence on the voir dire, he or she should not be asked whether he or she committed the crime charged, or any question that might tend to incriminate him or her in the crime charged. Such questions do not have to be answered by the accused: Evidence Act, s 189(6).

Cross-examination on the voir dire is permissible only in relation to issues that arise on the voir dire.  Questions relating to issues that arise on the trial, but not on the voir dire, amount to an abuse of process, and should be disallowed as irrelevant.

When an indictment contains two or more counts, the accused may apply for a separate trial of any count or counts in the indictment: s 326(3).  If evidence is presented in support of a severance application after the accused has pleaded (that is, during the trial), the evidence is received on the voir dire.  However a severance application may also be made before trial.  If evidence is presented for the purposes of a severance application made before trial, that technically does not involve a voir dire, but the applicable principles are the same.

Admissibility questions determined on the voir dire

There is no limit to the range of admissibility objections that might be determined on the voir dire.  Those that are commonly the subject of voir dires include the following: