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:
- Danger of unfair prejudice. Evidence may be objected to on the basis that “its probative value is outweighed by the danger of unfair prejudice to the defendant”: Evidence Act, s 137. In assessing the probative value of the evidence, it must be assumed that the jury will accept the evidence as credible, and that the jury will draw from it every inference favourable to the Crown that is reasonably open: KMJ v Tasmania (2011) 20 Tas R 425; R v Shamouil (2006) 66 NSWLR 228; R v Sood [2007] NSWCCA 214; R v XY (2013) 84 NSWLR 363. A different view has been taken in Victoria: Dupas v The Queen (2012) 40 VR 182. The High Court reserved a decision on the point: IMM v The Queen [2016] HCA Trans 8. In the meantime, judges in this State must follow KMJ. The reference to a “danger of unfair prejudice” relates to the effect that evidence can have “when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task”: Festa v The Queen (2001) 208 CLR 593, per McHugh J at [51]. Prosecutors commonly argue that appropriate directions by the judge to the jury will neutralise or substantially reduce any danger of unfair prejudice. Defence counsel commonly argue that, in the circumstances of the case, that is not likely.
- Tendency and coincidence evidence. Objections relating to these types of evidence are particularly common in sexual cases involving multiple complainants. The Crown’s contentions as to tendency and/or coincidence evidence are restricted by the contents of the tendency notice or coincidence notice that has to be given in writing to the defence: Evidence Act, ss 97(1)(a), 98(1)(a). Defence counsel commonly argue that evidence from two or more complainants is not cross-admissible. It may be argued that the evidence is not tendency evidence at all, or not coincidence evidence at all: Evidence Act, ss 97, 98. Or that the evidence does not have “significant probative value”: ss 97(1)(b), 98(1)(b). Or that the probative value of the evidence does not substantially outweigh some prejudicial effect that it may have on the defendant: s 101(2). Tendency evidence and/or coincidence evidence has “significant probative value” if it has more than mere relevance and is “important” or “of consequence”: R v Lockyer (1996) 89 A Crim R 457 at 459; L v Tasmania (2006) 15 Tas R 381 at [31]. For tendency evidence to be admissible under s 97, there does not have to be evidence of striking similarities between events or circumstances, or even similar behaviour on different occasions: R v Forward (2009) 273 ALR 286 at [38] and [125]; R v PWD [2010] NSWCCA 209 at [79]. Generally, the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value: BP v The Queen [2010] NSWCCA 303 at [108].
- Admissions. A judge may refuse to admit evidence of an admission if “having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence”: Evidence Act, s 90(b). When s 90 is relied on, defence counsel usually also rely on s 137 (danger of unfair prejudice).
- Evidence improperly or illegally obtained. Evidence that was obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or of such a contravention, is not to be admitted “unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained”: Evidence Act, s 138(1). The defence bear the burden of proving impropriety or contravention of an Australian law, on the balance of probabilities. If one of those things is established, the Crown then bears the burden of proving facts warranting the admission of the evidence. When s 138(1) applies, there are eight matters that s 138(3) requires the Court to take into account in deciding what is desirable or undesirable. The list is not an exhaustive list. See, for example, R v Brown [2014] TASSC 18, which concerned non-compliance with a provision of a Commonwealth statute relating to search warrants.
- Freshness of memory. Under s 66(2) of the Evidence Act, first-hand hearsay evidence of an assertion by a person who is available as a witness is prima facie admissible “if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation”. Questions of freshness of memory therefore sometimes have to be determined on the voir dire, particularly in relation to “recent complaint” evidence in sexual cases. Decisions to be made by counsel There are a number of decisions that need to be made by counsel in relation to a voir dire. Voir dire or no voir dire? Counsel should consider the likelihood or otherwise of the objection being successful. It may sometimes be preferable to concentrate on the weakness of the prosecution case, rather than on questions of admissibility. Timing of the voir dire. Section 361A should be used for long voir dires in order not to inconvenience a jury. It sometimes happens that questions of admissibility are determined under s 361A by a judge in one sittings and, for convenience, the matter is continued as a second trial before another judge in another sittings. This runs the risk that the second judge might disagree with the first judge’s determination – something that seems not yet ever to have happened. A short voir dire between the empanelment and the opening speech can be appropriate, particularly when the outcome of the voir dire will determine whether or not the prosecutor may rely on a piece of evidence that he she would like to refer to in the opening speech. A voir dire that interrupts the proceedings before the jury can be very inconvenient, but there may occasionally be tactical reasons to take a witness by surprise at that stage. There is a risk that the judge and/or jury might be irritated by an avoidable interruption. If the Crown is taken by surprise and therefore seeks an adjournment, it is extremely likely that the judge will grant the adjournment. Scope and basis of the objection. The scope and basis of the objection need to be identified in order to define and limit the scope of the voir dire, and in order to identify the case that the other side has to meet. Counsel should identify with precision the evidence that is objected to. Usually the evidence will be set out in the Crown papers, and it will be possible to take the judge to the appropriate pages, paragraphs, sentences, and lines. Counsel should also articulate the basis or bases of the objection, and the sections in the Evidence Act that are relied upon. These things should be stated in open court: Director of Public Prosecutions v Lynch (2006) 16 Tas R 49 at [16]. Oral evidence or a decision on the papers? Oral evidence from one or more witnesses is essential if it is not known what a witness will say about a particular point, or if there are facts that one party needs to establish, or to try to establish. Sometimes it is desirable to call undisputed oral evidence on the voir dire so that the evidence can be explained to the trial judge. If counsel for both sides are agreeable to the trial judge basing his or her decision wholly or partly on the papers, it is desirable to be specific as to what statements, proofs, or parts thereof are relied upon. Need for a second voir dire in relation to an objection already determined? This situation is unusual, but it can arise when a witness gives evidence before the jury that is not the same as the evidence given by that witness on a voir dire: P v The Queen [2002] TASSC 61; Tasmania v L [2004] TASSC 86; L v Tasmania (2006) 15 Tas R 381 at [6].