Voir Dire Flashcards
What is a Voir Dire?
A voir dire is a hearing within a hearing to determine an issue of law.
Used to determine one of the following:
- The competency or compellability of a witness
- Whether evidence is used against a person
- Admissibility of evidence for the tribunal of fact.
Where is Voir Dire legislated?
Section 189 of the Evidence Act
What is the intended result of a Voir Dire?
To determine whether or not there is “a Prima Facie reason for presenting the evidence at all to the Jury”. - Cornelius v The King (1936)
What do Voir Dires determine?
“To determine a question of LAW only” - Cornelius v the King (relating to the admissibility of evidence)
How to use a voir dire
It is a discretion not a right
Party seeking must satisfy Magistrate of reasonable grounds for departing from a hearing
Accused must identify grounds on which it is alleged evidence is inadmissible
Evidence must be RELEVANT to the FACT IN ISSUE ON THE VOIR DIRE
What is the relevant legislation regarding a voir dire?
Section 189 of the Evidence Act.
What did the case of Cornelius v The King (1936) find in relation to Voir Dires?
That the purpose or intended result of a voir dire is to determine whether or not there is “a Prima Facie reason for presenting the evidence at all to the Jury”.
What did the case of Cornelius v The King (1936) find in relation to how voir dires work? (ie: is it a question of fact or law?)
Cornelius v The King (1936) found that the voir dire was:
“To determine a question of LAW only”.
What did the case of Smitheries v Williams find in relation to the procedures of a Voir Dire?
Smitheries v Williams found that “..the procedures should be the same before a Magistrate and a Judge/Jury”.
What does Section 189 of the Evidence Act say?
189 The voir dire
(1) If the determination of a question whether:
(a) evidence should be admitted (whether in the exercise of a discretion or not), or
(b) evidence can be used against a person, or
(c) a witness is competent or compellable,
depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question.
(2) If there is a jury, a preliminary question whether:
(a) particular evidence is evidence of an admission, or evidence to which section 138 (Discretion to exclude improperly or illegally obtained evidence) applies, or
(b) evidence of an admission, or evidence to which section 138 applies, should be admitted,
is to be heard and determined in the jury’s absence.
(3) In the hearing of a preliminary question about whether a defendant’s admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission’s truth or untruth is to be disregarded unless the issue is introduced by the defendant.
(4) If there is a jury, the jury is not to be present at a hearing to decide any other preliminary question unless the court so orders.
(5) Without limiting the matters that the court may take into account in deciding whether to make such an order, it is to take into account:
(a) whether the evidence to be adduced in the course of that hearing is likely to be prejudicial to the defendant, and
(b) whether the evidence concerned will be adduced in the course of the hearing to decide the preliminary question, and
(c) whether the evidence to be adduced in the course of that hearing would be admitted if adduced at another stage of the hearing (other than in another hearing to decide a preliminary question or, in a criminal proceeding, a hearing in relation to sentencing).
(6) Section 128 (10) does not apply to a hearing to decide a preliminary question.
(7) In the application of Chapter 3 to a hearing to determine a preliminary question, the facts in issue are taken to include the fact to which the hearing relates.
(8) If a jury in a proceeding was not present at a hearing to determine a preliminary question, evidence is not to be adduced in the proceeding of evidence given by a witness at the hearing unless:
(a) it is inconsistent with other evidence given by the witness in the proceeding, or
(b) the witness has died.
What are the 5 principles of a Voir Dire as per DPP v Zhang?
- The grant of a voir dire by a Court is a matter of discretion and not a right of the party requesting.
- The party seeking the voir dire must first satisfy the Magistrate that there are reasonable grounds for a voir dire and must identify the issues to which it is directed.
- Specification by counsel of issues to be examined is important to allow objections to be taken and considered on relevance.
- The need for a Magistrate to identify with precision the material which is objected to, and the basis for the objection.
- Where a voir dire is permitted, there is a further need for a Magistrate to rule upon the admissibility of the evidence which is objected to in clear and understandable terms during the prosecution case.
Who has the onus of Proof in a Voir Dire?
Involuntariness or Oppression - onus on the Crown
Unfairness or Illegality - Onus on the Defence (Cleland and the Queen)
What relationship does Section 128 of the Evidence Act have to Voir Dires?
Section 128 is the rule in relation to privilege and self incrimination. Section 128(10) states that “In a criminal proceeding, this section (privilege/self incrimination) does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant:
(a) did an act the doing of which is a fact in issue, or
(b) had a state of mind the existence of which is a fact in issue.
What did the case of R v Hammond find in relation to the truth of an admission?
R v Hammond:
“The reason being: “if the Accused’s confession is in fact true, he faces the unfair alternative of committing perjury or of confessing to the crime in open court, with all the consequences that may follow, and thus the decision is an incitement to perjury”.
What did the case of McPherson v The Queen find in relation to Voir Dires?
Needs to be a “real question”, not a “fishing expedition”.
