What is a Voir Dire?
‘Voir dire’ is a French term which means “to see, to tell”. In criminal law, the term voir dire generally describes a preliminary hearing conducted to decide issues of law and fact to be assumed for the purpose of the trial proper. While a voir dire is often considered to consist of pre-trial arguments, it may be conducted at any stage of a criminal proceeding.
Commonly described as a “trial within a trial”, during a voir dire, the judge or magistrate assesses the credit of witnesses, makes findings of fact and applies the relevant law based on evidence and submissions from respective parties (MacPherson v R (1981) 147 CLR 512;  HCA 46; Cornelius v R (1936) 55 CLR 235). Evidence considered in a voir dire does not form part of the evidence in the trial (Sinclair v R (1946) 73 CLR 316).
Purpose of a Voir Dire
The primary purpose of voir dires is for the preliminary examination of witnesses and to allow the judge or magistrate to determine questions of law on whether to admit evidence proposed to be adduced. Although typically regarded as suited to a jury trial in the county or supreme court, a magistrate, due to their training and experience, can determine a case based solely on the evidence led in the main hearing, disregarding evidence led on the voir dire (Egan v Bott  VR 787; Smithers v Andrews  Qd R 64).
Due to the risk of prejudicial or inadmissible material being revealed in a jury trial, evidence on a voir dire is called in the absence of the jury unless it appears to the judge that no prejudice to the accused will arise from the evidence and argument taking place in the presence of the jury (Cornelius v The King at p 249; Evidence Act 2008 (Vic) s 189(4)-(5)).
When an application may be sought
Voir dires in criminal proceedings are held on application. Such applications are generally sought if the prosecution proposes to adduce evidence the defence believes is inadmissible.
A voir dire may also be appropriate in summary hearings. This would allow the accused to challenge the admissibility of prosecution evidence and enable them to give relevant evidence on the voir dire without being exposed to cross-examination in the trial itself.
Where the defence objects to admitting evidence of a confession on the basis that it was made involuntarily, typically, a trial judge will hear evidence on a voir dire as to the circumstances in which the confession was obtained (MacPherson v The
The prosecution may seek a voir dire if, for example, it proposes to rely on evidence that is prima facie inadmissible but that the prosecution argues should be admitted for another reason, such as in the interests of public policy.
Questions determined in a voir dire
Questions of law determined in voir dires commonly involve a decision about whether particular evidence is admissible or ought to be rejected on discretionary grounds (MacPherson v The
Examples of issues determined in a voir dire include the following:
- whether disputed evidence is admissible, such as the admissibility of confession evidence, identification evidence or expert evidence;
- whether an admission was unlawfully obtained, influenced by violent, oppressive, inhuman or degrading conduct, or was made in circumstances that may adversely affect the truth of the admission (see R v McNeill  NFSC 2; R v Em  NSWCCA 374; MacPherson v The
- whether the privilege against self-incrimination is available to a witness (R v Roberts & Urbanec (2004) 9 VR 295;  VSCA 1);
- whether a sample of writing was written by the accused (R v Browne-Kerr  VR 78);
- whether a witness is unfavourable (R v Andrews  1 Qd R 21; R v Lam & Ors (Ruling No 6)  VSC 280. See also Evidence Act 2008 s38);
- whether a search warrant was lawfully executed and whether the evidence was improperly or illegally obtained (R v Young  VSCA 2);
- whether it is necessary to discharge the jury due to an apprehension of bias (R v Lawrence, Unreported, VSCA, 7 October 1997).
The Evidence Act 2008
The Evidence Act 2008 (Vic) sets out strict rules about the kind of evidence that can be given in criminal proceedings and in what way. These rules form the basis of a voir dire. This legislation mirrors the Evidence Act 1995 (Cth), which applies as the Uniform Evidence Act in several Australian jurisdictions, including Victoria. The circumstances in which a voir dire is conducted and the relevant procedures are set out in s 189, which reflects the common law position that a voir dire is not a right but is a matter of discretion for the court.
Discretion to grant a voir dire
A voir dire may be ordered by a magistrate or judge sitting alone and a judge with a jury empanelled. As stated above, granting a voir dire by a court is a matter of discretion for the trial judge or magistrate and is not a right.
A voir dire should only be held where it is “essential for the purpose of ensuring a fair trial” (R v Rowley (1986) 23 A Crim R 371 (VCA) at 375). A party seeking a voir dire must satisfy the judge or magistrate that there are reasonable grounds for a voir dire, and counsel must specify issues to be examined, and evidence sought to be adduced (Director of Public Prosecutions (NSW) v Zhang, Johnson J at ). A voir dire will not usually be granted if the witnesses were cross-examined at the committal hearing, as all the relevant evidence is available in the depositions.
If an issue is in dispute regarding the voluntariness of a confession, a voir dire will generally be available upon application or even without application if an accused is unrepresented (MacPherson v The
Voir dire procedure
During a voir dire, the crown and defence may call evidence and cross-examine witnesses if the judge decides it is within the purpose of the voir dire and in the interests of justice to do so. The rules of evidence apply, and the standard of proof for evidence to be admissible is on the balance of probabilities.
The judge controls the conduct of the voir dire and the order in which parties present evidence and may limit the questioning of a witness to the purposes of the voir dire to ensure proceedings are conducted fairly (R v Bradshaw (1978) 18 SASR 83; MacPherson v The
A judge may also terminate a voir dire if satisfied that it is unlikely to serve any useful purpose (R v Lee, Unreported, NSW CCA, 5 May 1997). At the conclusion of the voir dire, the judge will not generally explain the outcome to the jury, as it may influence the jury in its fact-finding role in the criminal trial. Instead, the judge may explain to the jury that questions of law were determined in the jury’s absence (R v Banner  VR 240).