Section 82/84 Witness Hearing Applications

Requesting Cross-Examination in New South Wales Committal Hearings

Under Section 82 of the Criminal Procedure Act 1986 (CPA), defendants in New South Wales have the right to request that certain witnesses attend court to give oral evidence during committal proceedings. This right, though not absolute, exists to ensure that justice is served by allowing the defendant to scrutinise witness testimony before trial. In practice, this process is intended to guarantee that all parties gain a clear and comprehensive understanding of the case, enabling a fair trial.

Before a “Section 82 application” is made, the defence must first approach the prosecution, often by sending a formal request for cross-examination. This request is generally in the form of written submissions, laying out why cross-examination of the witnesses is necessary for justice. These submissions should detail substantial reasons to support the application, emphasising that it serves the interests of justice.

What Qualifies as “Substantial Reasons”?

Section 82 provides that a Magistrate may direct the attendance of a witness if the witness’s evidence is referenced in the prosecution’s brief or other materials shared with the defence. The purpose of this section, contained within Division 6 of Part 2 (committal proceedings) in Chapter 3 (Indictable Procedure), is to establish a framework for cross-examining witnesses based on well-founded needs rather than arbitrary requests.

The Magistrate’s role is to decide whether the application meets the threshold of “substantial reasons.” In practice, substantial reasons should be weighty, offering more than speculative or marginal benefits to the defence. Case law, such as DPP v Losurdo, has defined “substantial” as reasons of substance, without requiring the case to be exceptional or highly unusual. Essentially, if a reason is substantial, it must hold enough merit to impact the fairness or outcome of the trial.

The application must meet certain procedural requirements, including filing the charge certificate in committal proceedings. The Magistrate may convene a hearing to determine if the application is justified and may require both parties to present their arguments. Notably, if the prosecution and defence both agree on the witness’s attendance, the Magistrate is required to issue the direction, as per Section 82(4). If there is no mutual agreement, the court must independently confirm that there are substantial reasons for the witness to attend, taking into account the interests of justice.

Legal Precedents for “Substantial Reasons”

Legal precedents have clarified what may qualify as substantial reasons for cross-examining a witness at a committal hearing. Under the predecessor to Section 82, Section 91, certain conditions were repeatedly held to meet the substantial reasons standard. These conditions, which remain relevant today, include:

• Identifying Weaknesses in the Prosecution’s Case: Cross-examination might uncover vulnerabilities in the prosecution’s evidence, providing the defence an opportunity to highlight inconsistencies or limitations that could impact the case outcome.
• Narrowing Disputed Issues: Witness cross-examination can clarify areas of disagreement between the parties, which aids in streamlining the trial.
• Impugning the Credibility of Key Witnesses: For witnesses whose credibility is vital to the prosecution’s case, cross-examination can reveal biases, motives, or prior inconsistencies, potentially reducing their impact at trial.
• Understanding Expert Opinions: Cross-examining an expert witness may provide the defence with a better understanding of the foundation and limitations of expert testimony, especially in cases involving complex technical evidence.
• Comprehending the Crown’s Case: The ability to probe witness testimony helps the defence gain an in-depth view of the prosecution’s arguments and evidence.
• Establishing Grounds for Excluding Evidence: In some instances, cross-examination may reveal flaws that justify the exclusion of certain evidence at trial.
• Preventing Surprise at Trial: By thoroughly understanding witness testimony during committal, the defence can avoid unexpected evidence or claims during the trial phase.

While Magistrates no longer have the power to discharge a case at committal hearings (in NSW), the Section 82 provision still serves a crucial role in committal proceedings. It enables the defence to assess the strength of the prosecution’s case thoroughly, thereby allowing both parties to make informed decisions about proceeding to trial. For instance, after examining witness evidence, the prosecution may decide to drop or amend charges, while the defence may gain a clearer view of its trial strategy.

The Importance of Transparent Witness Hearings

The legislative design of Section 82 promotes transparency by allowing both parties to test evidence in a structured and open forum. By facilitating witness examination and ensuring procedural fairness, the act aims to prevent unjust surprises during trial, upholding the principle of a fair trial for the defendant.

A Section 82 application serves to ensure that the hearing process remains balanced, with all relevant witness evidence available to both parties. The Magistrate has discretionary power to reject applications that do not demonstrate substantial reasons. This discretion prevents unnecessary delays or frivolous requests while safeguarding against unwarranted restrictions on fair defence preparations.

How the Application Process Works

To initiate the Section 82 process, the defence submits a formal application, ideally with documented discussions or attempts to obtain prosecution consent. The application must convincingly argue why the witness’s attendance is essential for justice. The Magistrate will review these submissions and any corresponding evidence to decide if the grounds qualify as substantial reasons.

If the Magistrate is satisfied, they will order the witness to attend court for cross-examination. Once granted, the application cannot be reversed unless one party consents, or the defence fails to appear in court. This process underscores the judicial preference for transparency and fairness when witness testimony is in question.

Our Expertise in Section 82 Applications

At Potts Lawyers our seasoned litigators possess extensive experience with Section 82 applications. Our commitment to securing fair outcomes for our clients drives our dedicated approach to cross-examination rights. We regularly advocate for clients in NSW courts, ensuring that indictable matters are treated with the depth and diligence they deserve.

Mr Mark Williams and Ms Sinead Garland are both experienced lawyers who practice in New South Wales. We are here to guide clients through complex committal processes, leveraging years of criminal defence experience. We understand the importance of ensuring that the defence has full access to crucial evidence, empowering our clients to make informed choices about their cases. If you seek assistance with a Section 82 application, our team is prepared to provide a strategic and comprehensive approach tailored to your specific needs.

Contact us for a free 20 minute consultation on 0488 999 980.