Director of Public Prosecutions (NSW) v JS

1. [1]

   This is an appeal brought by the plaintiff, the Director of Public Prosecutions (NSW), in the Common Law Division of this Court pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) (“CAR Act”).

2. [2]

   On 22 November 2024, the defendant, who is identified by the pseudonym “JS”, was acquitted by Children’s Court Magistrate Eckhold of a charge of unauthorised possession of a pistol contrary to s 7(1) of the Firearms Act 1996 (NSW). That charge was dismissed subsequent to the Magistrate rejecting the tender of a certificate made under s 177 of the Evidence Act 1995 (NSW). The evidence in that certificate, if accepted, established that an item held by the defendant in three videos found on his mobile phone, was a “pistol” within the meaning of ss 4(1) and 4D(3) of the Firearms Act.

Relevant facts

1. [3]

   On 9 October 2024, the police obtained a search warrant following a report that the defendant (aged 16 at that time) had made threats towards his then 15-year-old girlfriend involving a gun and proceeded to search the defendant’s home. During the search, the police seized the defendant’s mobile phone where they found recordings of him holding an item which appeared to be a pistol. The defendant was arrested and taken into custody.

2. [4]

   The police charged the defendant with an offence of stalk or intimidate intending to cause fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (sequence 1) and an offence of unauthorised possession of a pistol contrary to s 7(1) of the Firearms Act (sequence 2). On 22 November 2024, both charges were listed for hearing before Magistrate Eckhold. JS pleaded guilty to sequence 1 and not guilty to sequence 2.

3. [5]

   As regards sequence 2, the prosecutor tendered a certificate made under s 177 of the Evidence Act dated 24 October 2024 given by a firearms expert, Mr Grosmaitre. Mr Grosmaitre stated in the certificate his occupation as “Crime Scene Officer – Forensic Firearm Examiner”.

4. [6]

   Mr Grosmaitre identified the item held by the defendant in the screenshots taken from the videos found on the defendant’s mobile phone as having an appearance of a “9mm Parabellum calibre GLOCK Model 19 self-loading pistol”, and that, depending on the functionality of the item (which Mr Grosmaitre was unable to determine), the item could be an a pistol, a firearm, or an imitation firearm within the meaning of the Firearms Act. The certificate read as follows:

5. [7]

   In Annexure A to the certificate, Mr Grosmaitre set out his qualifications and experience (“CV”). The CV listed:

   1. (1)

      his tertiary qualifications, including a high school scientific diploma with a focus on Biology and an IJ2 Certification in Criminalistics;

   2. (2)

      his forensic training, study and experience, including being attached to the Ballistics Investigation Section of the New South Wales Police Force since April 2021, being a former sworn member of the French Police Service for a period of 12 years, specialising in the examination of crime scenes including those involving firearms since 2011, having obtained certification for the use and maintenance of the 9mm Parabellum SIG SAUER SP2022 self-loading pistol, having completed training in prohibited weapons, and completing the National Training Curriculum in Forensic Firearm Examination which includes assessments in the examination, identification and testing of firearms and ammunition; and

   3. (3)

      his current position and responsibility as a Crime Scene Officer at the Ballistics Investigation Section and under the Forensic Evidence & Technical Services Command at the New South Wales Police Force. His duties were said to include the examination of crime scenes involving firearms and ammunition components, provision of technical advice to police and legal professionals related to firearms, ammunition and prohibited weapons, and the provision of expert testimony in Courts in Forensic Ballistic related matters.

6. [8]

   No challenge was advanced to the proposition that Mr Grosmaitre was an expert in forensic ballistics and had sufficient relevant training, experience and study in forensic ballistics to identify a pistol, a firearm, or an imitation firearm within the meaning of the Firearms Act.

7. [9]

   In Annexure B to the certificate, Mr Grosmaitre provided a “glossary of terms” he used in the certificate. Those terms included “air gun”, “barrel”, “calibre”, “firearm”, “trigger”, “trigger guard”. The Firearms Act was included in the “references” section.

The Evidence Act provisions

1. [10]

   The construction of ss 76, 79 and 177 of the Evidence Act is at the heart of this appeal. It is thus useful to set out these provisions at the outset.

2. [11]

   Section 76, which appears in Part 3.3 entitled “Opinion”, contains the opinion rule. Opinion evidence is prima facie not admissible in evidence:

3. [12]

   It is to be noted that s 76(2) envisages that the opinion rule will not apply to a certificate or other document given or made under regulations made under an Act “other than this Act”, to the extent that evidentiary effect is given to the certificate or other document has under those other Acts. Obviously, Mr Grosmaitre’s expert certificate, tendered under s 177 of the Evidence Act, does not meet this description. Section 76(2), however, does provide some limited contextual support for the proposition that a certificate containing expert opinion may provide an exception to the opinion rule.

4. [13]

   Section 79 contains an exception to the opinion rule, where a person has specialised knowledge based on the person’s training, study or experience, and the opinion is wholly or substantially based on that specialised knowledge:

5. [14]

   Section 177 falls under Part 4.6 of the Act entitled “ancillary provisions” and Division 4 entitled “procedures for proving other matters”. It provides the process for opinion evidence being “adduced” by tendering a certificate meeting the requirements of s 177. As the construction of s 177 is critical, I will set it out in whole:

6. [15]

   The question raised in this case is whether an opinion contained in a certificate which complies in all respects with the requirements of s 177 of the Evidence Act is admissible in evidence or whether the certificate must also comply with s 79 of the Evidence Act in order for the opinion contained therein to be admissible.

Decision of the Magistrate

1. [16]

   At the hearing before the learned Magistrate, Mr Grosmaitre’s expert certificate was tendered by the prosecutor to establish that the item held by the defendant in the screenshots taken from the videos from the defendant’s phone was a pistol within the meaning of s 4(1) of the Firearms Act.

2. [17]

   Since the functionality of the item could not be determined from the still photographs of the videos, the prosecutor submitted that the item was, at the very least, an imitation pistol within the meaning of s 4D(3) of the Firearms Act. Section 4D(1) provides that the Firearms Act, including the offence under s 7(1), applies to an imitation firearm in the same way as it applies to an ordinary firearm.

3. [18]

   The defendant accepted that service of the certificate had been effected within the time limit prescribed by s 177(3). No written notice was ever served under s 177(5) by the defendant on the plaintiff requiring Mr Grosmaitre to give evidence. It was accepted by the plaintiff before me that such a notice could have been given and would have been effective right up until the time the certificate was admitted in evidence. If written notice under s 177(5) had been given, the certificate “is not admissible as evidence”: s 177(6). I will return to the significance of this provision shortly.

4. [19]

   Rather than providing the written notice s 177(5) contemplates, which would have the automatic effect of excluding the certificate from evidence, the defendant objected to the certificate being received in evidence at trial on two bases. First, it was submitted that Mr Grosmaitre did not possess the necessary specialised knowledge. Secondly, it was submitted that the certificate did not reveal the “pathway of reasoning” needed to demonstrate that the opinion was “wholly or substantially based on his specialised knowledge” within the meaning of s 79 of the Evidence Act. The defendant’s submissions to the learned Magistrate, and the Magistrate’s reasons which I will set out below, did not address s 177 of the Evidence Act at all.

5. [20]

   His Honour rejected the first objection, that Mr Grosmaitre did not possess the necessary specialised knowledge, and no challenge was advanced to that conclusion in this Court. The learned Magistrate allowed the second objection for the following reasons given in his Honour’s ex tempore judgment:

6. [21]

   As a result, his Honour excluded the certificate from evidence, seemingly on the basis that the certificate did not comply with s 79 of the Evidence Act:

7. [22]

   The prosecutor’s offer to call Mr Grosmaitre to give oral evidence was rebuffed by counsel for the defendant and not permitted by the Magistrate. As a result of the exclusion of the certificate, the defendant was acquitted of the charge with respect to sequence 2.

8. [23]

   Two things about what was said between counsel and the Magistrate about s 177 of the Evidence Act should be noted. The first is that his Honour apparently proceeded on the basis that s 177 of the Evidence Act “just deals with the time frame”. The prosecutor, Ms Williams, however, clearly submitted that s 177 was relied upon as the basis for admitting the expert certificate in evidence. Ms Taylor, appearing for the defendant at trial, interjected that s 79 is “how you become an expert”.

9. [24]

   His Honour appeared to understand the prosecutor’s submission, being s 177 “is the mechanism by which you get the expert certificate in”. Despite earlier recording that understanding, when rejecting the admissibility of the certificate, the Magistrate did not address the requirements of s 177 at all. His Honour appeared to require as a condition of admissibility of a certificate made under s 177, not compliance with s 177 but, rather, compliance with s 79 of the Evidence Act. The interaction of ss 79 and 177 was discussed as follows:

10. [25]

    The second point to note is that despite the absence of written notice from the defendant under s 177(5), the prosecutor submitted that if there was an issue in relation to how Mr Grosmaitre arrived at his opinion, Mr Grosmaitre could be called as a witness. Ms Taylor, representing the defendant, contended that the defendant was entitled to object both to the admissibility of the certificate and to the expert being called as a witness by the prosecution. The Magistrate appeared to accept Ms Taylor’s submission:

11. [26]

    As I have said, no written notice under s 177(5) was given by the defendant to require the prosecutor to call Mr Grosmaitre to give evidence. The defendant simply waited until the day of the trial to object to the admission of the expert certificate. The Magistrate rejected the certificate despite a notice under s 177(5) not being given, and his Honour did so without permitting the prosecution to call Mr Grosmaitre to give evidence and without addressing the requirements under s 177 of the Evidence Act which was the basis upon which the certificate was sought to be admitted. The learned Magistrate’s reasoning can only be understood as requiring, as a precondition of admissibility of a certificate made under s 177, separate compliance with s 79. Whether that was the correct decision in law is the question to be determined here.

The present summons

1. [27]

   On 14 March 2025, the plaintiff filed a summons in this Court seeking the following orders:

2. [28]

   The plaintiff raised two grounds of appeal:

   1. (1)

      The Magistrate erred in law by impliedly holding that, in order for a certificate of expert evidence to comply with s 177(1)(c) of the Evidence Act it must, on its face, expose the reasoning process leading to the formation of the opinion.

   2. (2)

      The Magistrate erred in law by impliedly holding that, in order for evidence of an opinion, adduced by tendering a certificate pursuant to s 177 of the Evidence Act 1995, to be admissible, the certificate must, on its face, expose the reasoning process leading to the formation of the opinion.

Submissions

1. [29]

   The plaintiff submitted that the two grounds of appeal were each solely matters of law as they involve the proper construction, in context, of s 177 of the Evidence Act. The plaintiff’s case before the Magistrate and in this Court was that, as a matter of law, there are no additional, implied admissibility criteria to those specifically identified in s 177 of the Evidence Act. This issue is thus a matter of statutory construction that could be decided separately from the underlying facts of the case.

2. [30]

   As regards the substance of the appeal, the plaintiff submitted that, properly understood, the word “adduced” in s 177 means “admitted” rather than “tendered”. Satisfaction of s 177 should be read harmoniously with s 79 of the Evidence Act. If a certificate satisfied each of the requirements of s 177, the certificate is prima facie admissible in evidence, save for the fact that the person upon which the certificate is served may give written notice under subsection (5) at any time prior to admission of the certificate indicating that they require the expert for cross-examination. Subsection (6) provides that, if such a requirement is made, the expert certificate is not admissible as evidence. The plaintiff submitted that the obvious purpose of s 177 was to permit fairly uncontentious expert evidence to be proved in documentary form. That purpose would be defeated if a certificate meeting the specific requirements of s 177 was required also to meet the requirements in s 79 of the Evidence Act.

3. [31]

   The plaintiff submitted that the requirement in s 177(1)(c) that the certificate must set out “an opinion that the person holds and that is expressed to be wholly or substantially based on that knowledge” does not, “in its terms, require exposure of the process of reasoning leading to the formation of the opinion”. Rather, an opinion set out in the certificate is capable of being “expressed to be” wholly or substantially based on specialised knowledge where so much is stated in the certificate. The imposition of a more onerous requirement would defeat the clear purpose of the provision, which the plaintiff submitted as being the “facilitation of proof of relatively routine matters in court proceedings”.

4. [32]

   The defendant submitted that the decision of the Magistrate was one of mixed fact and law, and accordingly the jurisdiction of the Court was not properly enlivened under the CAR Act. It was submitted that the Magistrate’s reasoning did not disclose the implied conclusions contended by the plaintiff.

5. [33]

   The defendant submitted that s 177 was a subordinate provision to s 79 of the Evidence Act. Accordingly, whether or not the Magistrate reached a correct conclusion was a matter that involved scrutinising his Honour’s assessment of whether the opinion overcame the exception to the opinion rule in s 79 of the Evidence Act. That, the defendant argued, did not only involve a question of law, but questions of mixed fact and law. The Magistrate’s decision was case specific and cannot be considered independently of the factual circumstances of the matter. The Magistrate did not, for example, state a universal proposition as to the “line” needed to be drawn between the expert’s expertise and the opinion evidence.

6. [34]

   In response to the plaintiff’s interpretation of s 177 of the Evidence Act, the defendant said, in written and (at first) in oral submissions that the word “adduced” in s 177 simply means “tendered” or “capable of being admitted”, and that despite complying with s 177, a certificate is still only admissible through s 79 of the Evidence Act. However, the defendant later accepted during oral submissions that “adduced” may well mean “admitted”. The defendant, however, maintained the submission that s 177 was a subordinate provision to s 79 of the Evidence Act.

7. [35]

   The remainder of the defendant’s submissions focussed on what Beech-Jones J (as his Honour then was) said in JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669 about deficiencies in an expert certificate. The defendant submitted that JP supported the proposition that a certificate tendered under s 177 of the Evidence Act must, in addition to complying with s 177, also meet the preconditions identified under s 79(1).

8. [36]

   The defendant submitted that there would be undesirable consequences, particularly in criminal cases, if compliance with s 177 permitted the prosecution to “evade” the opinion rule in s 76.

Consideration

1. [37]

   This Court’s jurisdiction is only enlivened if the appeal raises a ground which involves a question of law alone. For the reasons which follow, I have concluded that the appeal involves a question of law alone. I have also concluded that the learned Magistrate’s construction of s 177 of the Evidence Act involved legal error and his Honour’s decision must be set aside and remitted to be determined according to law.

2. [38]

   Section 56(1)(c) of the CAR Act allows a prosecutor to appeal to the Supreme Court, as of right, against an order made by the Local Court dismissing a matter in any summary proceedings on a ground that involves a question of law alone.

3. [39]

   “Local Court” includes a Children’s Court constituted under the Children’s Court Act 1987 (NSW): s 3(1) of the CAR Act.

4. [40]

   A ground of appeal will “involve a question of law alone” where the question can be stated and considered separately from the facts in a given case. A question of mixed fact and law is insufficient: R v PL [2009] NSWCCA 256 at [21] (Spigelman CJ).

5. [41]

   The meaning of a “question of law” depends on the construction of the relevant statute. In Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220, Bathurst CJ and Bell P observed that:

6. [42]

   In the case of s 56, it is at least clear that the word “involves” is broader and more inclusive than the preposition “on”: R v PL at [20] (Spigelman CJ).

7. [43]

   A question of law includes situations where the conclusion of the primary judge proceeded from a “misdirection of law”. As Beech-Jones J observed in JP:

8. [44]

   A question of law also arises where the Court acted on a “wrong principle”. In Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734, Beech-Jones J noted:

9. [45]

   In the present case, the Magistrate explained in his Honour’s ex tempore reasons that the expert certificate should be rejected on the basis that there was a lack of any “line” (by which his Honour presumably meant “link”) between the expertise of Mr Grosmaitre and his identification of the object in the screenshots of the videos as having an appearance of a “9mm Parabellum calibre GLOCK Model 19 self-loading pistol”. His Honour further explained, in order to satisfy the requirement in s 79(1) as an exception to the opinion rule, that Mr Grosmaitre would be required to, “for example, show a photo of a Glock 19, demonstrate the similarities between them”.

10. [46]

    No reference to s 177 of the Evidence Act was made in the Magistrate’s reasons, save during the exchange between counsel and his Honour I have recounted above at [24]-[25]. I have concluded that the learned Magistrate’s reasoning can only be understood as requiring as a condition of admissibility of a certificate made under s 177, separate compliance with s 79 of the Evidence Act.

11. [47]

    Both grounds of appeal thus involved an interpretation, in context, of s 177 of the Evidence Act. The correct interpretation of a statutory provision involves a question of law alone. I find that this Court has jurisdiction to hear the appeal.

12. [48]

    The principles of statutory construction are clear. Construing a statutory provision requires consideration of its text, context and purpose. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 35; [1998] HCA 28 at [69], McHugh, Gummow, Kirby and Hayne JJ held that the “primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute”, with the meaning of the provision to be “determined by reference to the language of the instrument viewed as a whole”. Their Honours also referred to the statement of Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397; [1955] HCA 27 that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.

13. [49]

    In Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9, French CJ, Crennan and Bell JJ said this about the primacy of construing the words of the statute:

14. [50]

    As to context and purpose, in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34, Keane, Nettle and Gordon JJ said that the text cannot be considered without regard to its context and purpose:

15. [51]

    Context, when considered, is used in its widest sense “to include such things as the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy”: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 (Brennan CJ, Dawson, Toohey and Gummow JJ). See also Project Blue Sky at [69].

16. [52]

    The “opinion rule” in s 76 of the Evidence Act is subject to an express statutory exception under s 79. The first condition of admissibility under s 79 is that the evidence be given by a person who has specialised knowledge based on the person’s training, study or experience. The second condition of admissibility is that the relevant opinion is “wholly or substantially based” on that “specialised knowledge”.

17. [53]

    In Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29, the High Court observed of the second condition:

18. [54]

    In a much-cited passage from the judgment of Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, his Honour identified a strict test of the second condition of admissibility in the following terms:

19. [55]

    The strictures required by Makita have subsequently been relaxed by the High Court. The level of explanation required depend on the relevant facts and opinion offered. Thus, in some cases, satisfaction of the second condition would “require little explicit articulation”. As explained in Dasreef Pty Ltd v Hawchar (2011) CLR 588; [2011] HCA 21, the requirement that it be demonstrated that the opinion is based wholly or substantially on the expert's specialised knowledge:

20. [56]

    In JP, a case to which I will return, Beech-Jones J said about the relaxation of the test in Makita:

21. [57]

    The critical question here is whether admissibility of a certificate made under s 177 is conditioned not only upon compliance with s 177 but upon the separate satisfaction of s 79. The better view is that it is not. Section 177 provides a separate route to admit opinion evidence. An opinion contained in a certificate which complies with s 177 is admissible as an exception to the opinion rule in s 76, unless and until the expert is required for cross-examination under s 177(5), in which case the standard of admissibility under s 79 applies to any opinion expressed by the expert. The interpretation I prefer is supported by the text, context and purpose of s 177.

22. [58]

    By its text, s 177 creates a procedure for the admission of expert opinion evidence. The requirements for admissibility of an opinion contained in a certificate made under s 177 are set out in subsections (1)(a)-(c). The opening words of the section are that “evidence of a person’s opinion may be adduced by tendering a certificate …” (emphasis added). Those words are important.

23. [59]

    As Basten JA pointed out in R v Zhang [2005] NSWCCA 437, by reference to the decision of Simpson J in R v Nassif [2004] NSWCCA 433 at [36] and [47], the terminology of the Evidence Act includes reference to evidence being “adduced”, “admitted” and “used”. Restrictions on the way in which evidence may be “used” tend to assume that it has been “admitted”: see, eg, s 136. However, evidence which is “adduced” is not necessarily “admitted”: see, eg, s 137. Accordingly, in some usages in the Evidence Act, the term “adduced” is to be be understood as referring to evidence which is tendered. While it is generally presumed that a word or phrase has the same meaning throughout an Act: see, eg, Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; [2017] HCA 55 at [21] (the Court), the same words in different sections can mean different things if the surrounding words of the provisions, or “the subject matter in connection with which [the word] is used and … its collocation, are different”: Perry Herzfeld and Thomas Prince, Interpretation (3rd ed, Lawbook Co, 2024) at [2.10]. The use of the word “adduced” in s 177 is such a case.

24. [60]

    In context, “adduced” in s 177(1) can only mean admitted rather than tendered. First, it makes no sense to read s 177(1) as meaning “evidence of a person’s opinion may be [tendered] by tendering a certificate …” Secondly, ss 177(5)-(6) provide that in circumstances where the recipient of a certificate serves written notice requiring the maker of the certificate to give evidence, the expert certificate is not admissible as evidence. Thus, if the conditions in s 177(1)(a)-(c) are complied with, evidence of a person’s opinion may be “admitted” by tendering a certificate complying with those requirements.

25. [61]

    Sections 177(1)(a) and (1)(b) require no elaboration. The key condition in s 177(1) is sub-section (c) which provides that for the certificate to be admissible it must set out “an opinion that the person holds and that is expressed to be wholly or substantially based on that knowledge”. This is expressed in similar language to s 79, in that it uses the words “wholly or substantially based on that knowledge”. The important difference, however, lies in the words “expressed to be”, which are used in s 177 and not in s 79.

26. [62]

    The language of 79(1) of the Evidence Act requires demonstration, at least to some extent, that the opinion expressed is “wholly or substantially based” on the relevant “specialised knowledge”, such as by explaining the connection between the evidence and the expertise (see Honeysett at [24]; Dasreef at [37]).

27. [63]

    The phrase “expressed to be” is apt to describe that something has been shown, communicated, or stated to exist or be a certain way. Inclusion of the words “expressed to be” in s 177(1)(c) means that it is satisfied where so much is stated in the certificate; that the opinion that the person holds is identified and is expressed to be wholly or substantially based on specialised knowledge. In other words, it suffices where this connection is stated to exist. Compliance with s 177(1)(c) thus creates a less stringent test for admissibility than that in s 79(1). But this does not mean that s 177 is inconsistent with s 79(1). Section 177 is a provision which facilitates the admissibility of relatively routine expert opinion. The clear safeguard for a person served with a certificate made under s177 is that they may, until the point the certificate is admitted in evidence, give written notice under s 177(5). At that point, the certificate becomes inadmissible by reason of s 177(6). The sanction for calling the expert to give evidence, without reasonable cause, is costs: s 177(7).

28. [64]

    Admission of expert opinion under s 79(1) requires satisfaction of the two conditions I have addressed above by reference to the decisions of the High Court in Honeysett and Dasreef. Section 177 creates a separate procedure for the admission of expert opinion contained in a certificate. Admissibility of an opinion contained in a certificate requires compliance with the matters addressed in s 177 and does not require separate compliance with s 79. Section 177 is intended to facilitate proof of relatively routine matters calling for expert opinion.

29. [65]

    This conclusion is consistent with the authorities which have addressed the question whether a certificate which complies with the requirements of s 177 is admissible. In Director of Public Prosecutions (NSW) v Tong (2004) 151 A Crim R 296; [2004] NSWSC 689, the defendant was charged with dangerous driving under the influence of a drug occasioning grievous bodily harm. The prosecution obtained a certificate from a doctor that, at the time of driving, the defendant was under the influence of cannabis to the extent that his driving ability would have been impaired. The certificate was tendered under s 177. The defendant objected on the basis that the certificate was totally devoid of any reasoning process or underlying methodology in the statement. The learned Magistrate held that Makita was binding on him, and thus the expert certificate under s 177 of the Act was not admissible. On appeal, Dowd J held that Makita did not prevent the admission of the certificate (at [37]). In the course of his Honour’s reasoning, Dowd J said the following with respect to s 177:

30. [66]

    In R v Milne (No 1) [2010] NSWSC 932; (2010) 260 FLR 166, Johnson J was required to determine a number of pre-trial issues in a Commonwealth money laundering and fraud trial, which relevantly included issues about the admissibility of a report and evidence from a financial expert who was to be called in the Crown case. Counsel for the defence contended that the extensive report of the expert fell within s 177, and where notice had been given requiring the expert for oral evidence, the report was not admissible pursuant to subsections 177(5) and (6). In response, the prosecutor submitted that s 177 only applies to expert certificates and not to an expert report, prepared pursuant to the Uniform Civil Procedure Rules 2005 (NSW) and the Supreme Court Rules 1970 (NSW). Johnson J agreed with the prosecution and made the following observations about s 177:

31. [67]

    To similar effect, in Taub v R (2017) 95 NSWLR 388; [2017] NSWCCA 198, Simpson JA made the following remarks concerning a certificate from a forensic chemist which was admitted into evidence in those proceedings:

32. [68]

    There is an aspect of the reasoning of Beech-Jones J in JP which might appear inconsistent with the construction of s 177 I prefer. The construction of s 177, however, was not raised before or considered by his Honour. Cases are only authority for what they decide: Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [79] (McHugh J); Lazarus v Independent Commission Against Corruption [2017] NSWCA 37 at [87] (Leeming JA, McColl JA and Simpson JA agreeing).

33. [69]

    In JP, a certificate by a fingerprint expert was tendered by the prosecutor before a Children’s Court Magistrate which concluded that the fingerprint taken from the scene of the break-in was identical to the plaintiff's fingerprint. The defendant objected to the admission of the certificate on the basis that it did not provide “the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions”: Makita at [59]. The Magistrate admitted the certificate into evidence. Despite the absence of a written notice under s 177(5), the expert was nevertheless called to give evidence and elaborated on his methodology.

34. [70]

    On appeal by the defendant, it is true, as counsel for the defendant in the present case pointed out, Beech-Jones J considered the admissibility of the opinion evidence only through the prism of s 79(1) of the Evidence Act. However, that case was unusual as the opinion evidence was both given by certificate and elaborated upon orally. It will be recalled that the learned Magistrate in the present case accepted the defendant’s submission that the prosecution should not be permitted to call Mr Grosmaitre to remedy any perceived defect in the opinion expressed in the certificate.

35. [71]

    Ultimately, Beech-Jones J concluded that, “had the certificate been rejected on the basis that it did not disclose how the methodology that was applied led to [the expert’s] ultimate conclusion then it would have been open to the prosecution to lead oral evidence that remedied the deficiency” (at [56]). Having assessed the oral evidence, his Honour concluded that it was sufficient to render his opinion that the prints were identical admissible (at [58]). His Honour in JS did not consider the correct construction of s 177 at all.

36. [72]

    Further, the decision of Beech-Jones J is authority directly to the contrary of the approach adopted by the learned Magistrate in the present case as to the availability of cross-examination. Contrary to the submission made by the defendant and apparently accepted by the Magistrate, it was open to the prosecution to lead oral evidence to remedy any perceived deficiency in the certificate. The Magistrate erred in preventing the prosecution from calling Mr Grosmaitre. Contrary to the submission of the defendant in the present case, JS is not authority standing in the way of my conclusion.

37. [73]

    As to the history of s 177, the explanatory note to the Evidence Bill 1995 (NSW) provides that “[c]lause 177 provides for evidence of an expert's opinion to be given by certificate. The party tendering an expert certificate must serve notice, and a copy, of it on each other party before the hearing. A party so served can require the expert to be called as a witness” (emphasis added). The background of its drafting otherwise remains unclear. Section 177 has not been amended since it was enacted in the Evidence Act. It did not appear in the draft legislation and was not directly discussed in ALRC 26.

38. [74]

    The plaintiff pointed to the section in the ALRC report entitled “Evidence of Authentication” and the reference to “Certificate of Results of Scientific Tests” at paragraph [182]. At footnote 548, reference was made to provisions relating to scientific examination in a number of jurisdictions, including s 414A of the Crimes Act 1900 (NSW) (since repealed). The drafting of s 177 appeared to have drawn from s 414A(1), which was concerned with certificates of scientific examination evidence at inquests. Section 414A(1) required the certificate to be under the hand of the person performing the examination, setting out that they had made an examination, the nature of their qualifications and the facts and conclusions at which they have arrived. The section did not contain the equivalent s 177(5) about the calling of the expert witness. It is unclear whether s 177 is based on that draft provision. The history of the provision is a neutral factor in determining its correct construction.

39. [75]

    As regards questions of policy, I do not accept that the construction I prefer gives rise to any relevant unfairness. This is because, as I have said, the person against whom the certificate is tendered can elect to have the certificate rendered inadmissible by serving a written notice, right up until the time the certificate is admitted in evidence. In such a case, the expert opinion would only be admissible if it met the two conditions imposed by s 79 of the Evidence Act. The sanction for unnecessarily calling the expert to prove those matters is costs under s 177(7).

40. [76]

    The construction of s 177 which I prefer does not, expressly or by implication, alter the meaning of s 79(1). Rather, s 177 is a facultative provision. The Evidence Act should be construed on the basis that its provisions are intended to give effect to harmonious goals: Project Blue Sky at [70] (McHugh, Gummow, Kirby and Hayne JJ). The construction I prefer gives effect to harmonious goals between the prohibition in s 76 and the separate exceptions to that rule contained in s 79 and s 177, which each operate together in the way I have described.

41. [77]

    Returning, then, to the question posed at the outset as to whether the Magistrate made an error of law, for the reasons I have given, the certificate in the present case was admissible as it complied with s 177(1) and was not the subject of a notice under s 177(5). Mr Grosmaitre’s certificate stated that he has “specialised knowledge based on my training, experience and study of Forensic Ballistics”, and that “[a]ll opinions expressed in the body of this Certificate are based wholly or substantially on my specialised knowledge”.

42. [78]

    If it matters, the certificate went further. In Annexure A to the certificate, Mr Grosmaitre demonstrated in detail his qualifications and experience in relation to the use, training and identification of firearms. That included being attached to the Ballistics Investigation Section of the New South Wales Police Force since April 2021, being a member of the French Police Service for 12 years, and having obtained certification for the use and maintenance of one of the types of 9mm Parabellum self-loading pistol.

43. [79]

    Mr Grosmaitre’s opinion, that the photographs depicted a pistol (or an imitation of a pistol), was “expressed to be wholly or substantially based on” his specialised knowledge in forensic ballistics. This complied with s 177(1)(c). As I have said, the learned Magistrate also erred in determining that the prosecution was not permitted to lead oral evidence to remedy any deficiency identified.

44. [80]

    The learned Magistrate erred in law by failing properly to construe s 177 and in implicitly finding that a certificate made under s 177 had also to meet the conditions of admissibility required by s 79 of the Evidence Act. It was an error of law to exclude the certificate from evidence.

45. [81]

    The appeal should be allowed. It was common ground that given his age at the time of the alleged offending I should make an order that the defendant in this case be referred to by the use of the pseudonym. I propose to make such an order.

Orders

1. [82]

   I make the following orders:

   1. (1)

      That the defendant in this case be referred to by the use of the pseudonym, “JS”.

   2. (2)

      Appeal allowed.

   3. (3)

      Set aside the order of the Magistrate made on 22 November 2024 dismissing the charge in relation to sequence 2.

   4. (4)

      Remit the matter to Broadmeadow Children’s Court to be dealt with in accordance with law.