Special Bulletin 5 — October 2002
This Bulletin has been archived because it has been superseded and/or incorporated in the relevant section of the Bench Book
TKWJ v The Queen [2002] HCA 46
Pre-trial rulings in the District Court
Importantly for trial judges, in TKWJ v The Queen, three members of the High Court considered the question of whether a District Court judge is entitled to give a pre-trial ruling on the question of whether, if character evidence were called in the defence case, the proposed evidence in rebuttal by the Crown would be admissible under s 110(2), (3) of the Evidence Act 1995 (NSW) or liable to be rejected under either ss 135 or 137 of that Act.
Their Honours considered Pt 53 r 10 of the District Court Rules 1973 (NSW) which makes provision for pre-trial applications with respect to various matters, including for “directions generally”, together with r 11(1) which provides —
The court may order that an enquiry by way of a voir dire into the admissibility of any evidence or as to the capacity of a witness to give evidence be had, before the trial judge, at any stage of any proceedings whether before or after the jury is empanelled.
In this regard, Gaudron J, with whom Gummow and Hayne JJ agreed (Gleeson CJ and McHugh J not considering the question), said at [40] —
To say that a trial judge has power, in pre-trial proceedings, to give directions or to conduct a voir dire for the purpose of making an advance determination as to the admissibility of evidence is not to say that a trial judge has power to give an advance ruling as to the way in which he or she will exercise a discretion if and when a party seeks to have that discretion exercised. And assuming s 189 of the Evidence Act is an independent grant of power to conduct a voir dire for the purpose of determining whether a discretion should be exercised to exclude evidence, there is nothing in the terms of that section which confers power to make an “advance ruling” as to how the discretion will be exercised if and when its exercise is called for. So to say, is not to deny that a court has power to conduct a voir dire examination to determine whether evidence should be excluded in the exercise of a discretion. It is simply to say that a discretion can only be exercised if and when it is invoked.