189The voir dire

### 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 for the purposes of this section, the question whether that fact exists is 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](#GS138@EN) applies; or > > > > > > > (b) evidence of an admission, or evidence to which [section 138](#GS138@EN) 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)  [*\[Section 189 Subsection (6) amended by No. 46 of 2010, s. 48, Applied:01 Jan 2011\]*](/view/html/inforce/2011-01-01/act-2010-046#GS48@EN) [Section 128(10)](#GS128@Gs10@EN) does not apply to a hearing to decide a preliminary question. > > > (7)  In the application of [Chapter 3](#HC3@EN) 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.