A voir dire is a hearing conducted within a criminal proceeding to determine whether particular evidence is admissible. The term comes from Old French and means, roughly, "to speak the truth." In Australian courts, a voir dire operates as a trial within a trial: the jury is excluded, the parties argue the point before the judge, and the judge rules on whether the contested evidence can come in.
Ann Valos Criminal Law regularly deals with voir dire applications in serious criminal matters. The outcome of a voir dire can fundamentally change the shape of a trial, because evidence excluded at that stage is never seen or heard by the jury at all.
Why a voir dire happens
Evidence gets challenged on a voir dire for a number of reasons. The most common involve confessions or admissions made to police. If a defendant says the confession was obtained improperly, such as through a denial of legal advice or through oppressive questioning, the defence can argue the statement should not be admitted.
Other grounds include:
- Identification evidence that may be unreliable
- Evidence obtained through an unlawful search or seizure
- Statements made without a proper caution being given
- Expert opinion evidence that does not meet the requirements for admissibility
The judge decides the question using the balance of probabilities standard, which is a lower bar than the criminal standard of beyond reasonable doubt. Both parties can call witnesses and tender documents during a voir dire, just as they would in a full hearing.
How the process unfolds
Once a party signals they want to challenge evidence, the trial pauses. If there is a jury empanelled, jurors leave the courtroom. The judge then presides over the voir dire as a separate proceeding. Witnesses can be called, cross-examined, and re-examined. The party seeking to exclude the evidence carries the burden of raising the issue, though the burden of proof can shift depending on the specific ground relied upon.
After hearing argument, the judge delivers a ruling. If the evidence is excluded, it simply disappears from the trial. The jury returns to the courtroom and never learns what was challenged or why. This protection matters. Jurors do not get to speculate about evidence they have not heard, and the defendant is not prejudiced by material that was gathered unlawfully or obtained unfairly.
If the judge allows the evidence in, the trial continues with that evidence before the jury. The defendant retains the right to contest its weight during the main trial, even though admissibility has been resolved.
The connection to the right to silence
Voir dire applications frequently arise where a defendant exercised, or tried to exercise, the right to silence in Australia and police continued questioning anyway. If investigators failed to properly caution a suspect, or continued questioning after a lawyer was requested and not yet present, those circumstances feed directly into a voir dire argument about whether any subsequent statement should be admitted.
Section 84 of the Evidence Act 1995 (NSW) gives the court power to exclude admissions that were influenced by violent, oppressive, inhuman, or degrading conduct. Section 90 gives a discretion to exclude admissions where it would be unfair to use them. Both provisions are live issues in voir dire hearings.
Summary vs indictable matters
Voir dire hearings most commonly arise in District Court or Supreme Court trials where a jury is present. They can, though, occur in Local Court proceedings as well, particularly in serious summary matters. The Local Court has no jury, so the magistrate effectively conducts the voir dire and the substantive hearing simultaneously, ruling on admissibility and then deciding the facts. Understanding the difference between summary and indictable offences helps clarify why the procedural stakes of a voir dire vary so significantly between courts.
What a strong voir dire argument looks like
A well-prepared voir dire is built on the interview record. Police in NSW are required to electronically record interviews with suspects under the Evidence (Audio and Audio Visual Links) Act 1998 and related provisions. Defence counsel reviews the recording closely, looking for moments where a caution was not given, where a request for a lawyer was dismissed, or where questioning continued past a clear invocation of silence.
Counsel then marshals that material into a coherent argument that the admission of the contested evidence would be unfair or would bring the administration of justice into disrepute. That second limb, derived from section 138 of the Evidence Act, is the most commonly argued discretion. It asks the judge to weigh the desirability of admitting the evidence against the undesirability of admitting evidence obtained in contravention of Australian law.
The factors in that balancing exercise include the seriousness of the breach, whether it was deliberate, whether the evidence could have been obtained lawfully anyway, and the gravity of the offence charged. Serious charges do not automatically outweigh a serious breach. Courts have excluded confessions in murder matters where the conduct of investigators was particularly egregious.
Why this matters before the trial starts
By the time a matter reaches trial, a great deal has already happened after the criminal charge was laid: bail hearings, mentions, committal proceedings, and disclosure. A competent defence team reviews the brief of evidence well before trial and identifies potential voir dire grounds early. That early work shapes the litigation strategy, sometimes prompting a resolution, sometimes giving the defendant a genuine pathway to acquittal.
Ann Valos Criminal Law brings accredited specialists to this kind of pre-trial analysis. Identifying a strong voir dire point before opening addresses is far more valuable than raising it mid-trial without proper preparation.
Getting advice early
If you are facing a criminal charge and believe that police conduct during your interview was improper, that is a conversation to have with a specialist lawyer as soon as possible. The Evidence Act 1995 (NSW) provides real tools to challenge unlawfully obtained evidence, but those tools require careful application to the specific facts of each case. Evidence that could have been excluded is not recoverable once a trial has run its course.
Ann Valos Criminal Law offers consultations to people facing criminal charges across New South Wales. Contact the firm to discuss whether the evidence in your matter is properly open to challenge.