JS v Director of Public Prosecutions (NSW)

1. [1]

   BELL CJ: This is an application for leave to appeal from a decision of Payne JA sitting in the Common Law Division of the Supreme Court on an appeal on a question of law arising from a decision of Children’s Magistrate Eckhold (the magistrate): Director of Public Prosecutions (NSW) v JS [2025] NSWSC 1172 (primary judgment or PJ).

2. [2]

   In proceedings in the Children’s Court, a forensic examiner had issued an expert certificate which, in compliance with s 177 of the Evidence Act 1995 (NSW) (the Act), set out the opinion that he held and that was expressed to be wholly or substantially based upon the maker’s knowledge.

3. [3]

   The opinion was in relation to the type of gun that was depicted in images on the mobile phone of JS (the Appellant). The magistrate refused to admit the expert certificate into evidence on the basis that it did not comply with s 79 of the Act and therefore fell foul of s 76 of the Act which is defined as the “opinion rule”.

4. [4]

   Consequent upon this ruling, JS was acquitted of one of two charges in the Children’s Court.

5. [5]

   On an appeal on a question of law under the Crimes (Appeal and Review) Act 2001 (NSW), Justice Payne held that the magistrate erred in law in excluding the expert certificate in circumstances where the expert certificate complied with s 177(1) and where the procedure specified in ss 177(2) and (3) of the Act had been followed (as was common ground). The effect of his Honour’s decision was that a compliant s 177 expert certificate was admissible as evidence of the opinion it recorded and was not required separately to comply with the requirements of s 79 of the Act in the absence of written notice to the party proposing to tender the expert certificate that its maker was required to be called to give evidence under s 177(5).

6. [6]

   Because the application raises a nice question relating to the interaction, if any, between ss 76, 79 and 177 of the Act which has hitherto not been the subject of any appellate decision in the 30 years since the passage of the Act and cognate legislation including the Evidence Act 1995 (Cth), and where the question raised has implications generally for both civil and criminal matters (both ss 79 and 177 applying equally to civil and criminal proceedings), it is appropriate that leave to appeal be granted.

7. [7]

   Although the question raised in the current case is relatively finely balanced, for the reasons that follow, the appeal should be dismissed.

8. [8]

   Before turning to those reasons, because the Act and the Evidence Act 1995 (Cth) are in materially identical form (including with corresponding section numbers), and because some of the cases referred to in these reasons deal with either the New South Wales or the Commonwealth Act, for the most part no differentiation between the two Acts is made in these reasons. As will be seen, however, aspects of the two Acts’ respective drafting history and the terms of their Explanatory Memoranda and Explanatory Note differ. Notwithstanding the differences, it is trite that there should be consistency in the interpretation of cognate legislation, especially where it is uniform or at least preponderantly so: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; [1993] HCA 15; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135]; R v Falzon (2018) 264 CLR 361; [2018] HCA 29 at [49]; Hill v Zuda Pty Ltd (2022) 275 CLR 24; [2022] HCA 21 at [25].

Relevant statutory provisions and some legislative history

1. [9]

   The “opinion rule”, which is referred to in a number of sections of the Act, is defined in the Dictionary of the Act as meaning s 76 of the Act. Section 76 provides that:

2. [10]

   Section 79 of the Act provides that:

3. [11]

   Section 177 of the Act forms part of Division 4 of Part 4.6 which is headed “Procedures for proving other matters”. It is as follows:

4. [12]

   It is convenient immediately to note a subtle textual difference between s 79 and s 177 of the Act. The former provision requires that the person giving the evidence has specialised knowledge and that his or her opinion is wholly or substantially based on that knowledge — these are matters which must be demonstrated if objection is taken to the admission of an expert’s report: see, for example, Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [32], [34], [37], [42]. The latter provision, by way of contrast, only requires a statement that the expert has specialised knowledge based on his or her training, study or experience and that the opinion held is expressed to be based wholly or substantially upon that knowledge. It will be necessary to return to the significance of these subtle linguistic differences later in these reasons. It will be immediately apparent, however, that they indicate differences between the two sections, and that compliance with s 177 will generally be forensically simpler than compliance with s 79, a matter that may be thought to inform the legislative purpose underpinning s 177.

5. [13]

   There is a note to s 76 of both the New South Wales Act and the Commonwealth Act which lists specific exceptions to the opinion rule as follows:

6. [14]

   In the original draft of the Bill appended to Australian Law Reform Commission Report No 38 (ALRC 38) (and in which there was no equivalent to what became s 177), the exceptions to what was then styled “the opinion evidence rule” were definitively identified in a footnote to cl 66 (which would become s 76 of the Act when ultimately passed) using this terminology:

7. [15]

   The change in the wording of the note to the original draft of the Bill to the form in which it now appears, namely to add that “[o]ther provisions of this Act, or of other enactments, may operate as further exceptions”, was introduced in the Evidence Bill 1991 (Cth), a precursor to the Evidence Bill 1993 (Cth) (1993 Commonwealth Bill) which was where what became s 177 of the Act was first introduced.

8. [16]

   Very significantly for present purposes, the Explanatory Memorandum to the 1993 Commonwealth Bill provided at [299] in relation to cl 177 that:

9. [17]

   The Explanatory Note to the Evidence Bill 1995 (NSW) (1995 NSW Bill) was relevantly expressed in different terms to the Commonwealth analogue, providing that:

Judgment below

1. [18]

   The essence of Justice Payne’s reasoning was contained at [57]-[64] of his judgment as follows:

2. [19]

   In reaching his conclusion, Justice Payne referred to a number of first instance decisions in which the purpose of s 177 of the Act was identified. In R v Milne (No 1) [2010] NSWSC 932; (2010) 260 FLR 166 (Milne) at [215], Johnson J expressed agreement with the observations of Dowd J in Director of Public Prosecutions (NSW) v Tong [2004] NSWSC 689; (2004) 151 A Crim R 296 (Tong) at [33] that s 177:

3. [20]

   Justice Payne considered the decision of Beech-Jones J, when a member of this Court, in JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669; (2015) 256 A Crim R 447 (JP). JP was relied upon by the Appellant both before his Honour and in this Court to support the proposition that a certificate tendered under s 177 of the Act must, in addition to complying with s 177, also meet the preconditions identified under s 79(1).

4. [21]

   Justice Payne made the point that JP was distinguishable because the expert in that case was called to give expert evidence, and his expert evidence given orally was admitted. Because his evidence was given orally, there was no purpose to the tender of an earlier expert certificate and no occasion to rule on its admissibility. To the extent that Beech-Jones J hypothesised at [56] that, “[h]ad 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”, that was not an issue which was necessary for his Honour to decide and nothing in Beech-Jones J’s reasons suggests that the proper construction of s 177 of the Act and its interaction with ss 76 and 79 was the subject of any argument.

5. [22]

   At [74] of his reasons, Justice Payne concluded that “the history of the provision is a neutral factor in determining its correct construction”. His Honour does not appear to have been taken to the Explanatory Memoranda to the 1993 and 1994 Commonwealth Bills which have been noted at [16] above. Although his Honour was, of course, concerned with the interpretation of the New South Wales Act, that Act is cognate with the Commonwealth Act which was assented to on 23 February 1995 almost four months prior to its New South Wales analogue which was assented to on 19 June 1995. As already observed, the two should be interpreted consistently, and for this reason, the content of the Explanatory Memoranda to the Bills that became the Commonwealth Act is germane.

6. [23]

   At [75]-[76] of his reasons, Justice Payne observed that:

7. [24]

   His Honour’s ultimate conclusion at [80] was that the 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.”

Consideration and disposition

1. [25]

   Two grounds of appeal are pursued: first, that the judge erred in holding at PJ [59]-[60] that “adduced” in s 177(1) of the Act means “admitted”, and not “presented” and, secondly, that his Honour erred in holding that s 177 of the Act is an exception to the opinion rule in s 76 of the Act.

2. [26]

   Mr Odgers SC, who appeared for the Appellant, submitted that the word “adduced” was used throughout the Act and that, consistently with its use elsewhere in the Act, the word “adduced” in s 177(1) meant “presented” or “brought forward by a party” to the proceedings. Because “adduced” meant “presented” in s 177(1) and was not concerned with admissibility, the argument continued, s 177 did not thereby create an exception to the rule of inadmissibility in s 76(1) of the Act. Mr Odgers went so far as to submit that the word “adduced” always means “presented” when used in the Act.

3. [27]

   Mr Odgers was particularly critical of the first of the two reasons Justice Payne gave for his conclusion at [60] of his reasons (see [18] above), submitting that if “adduced” was given the meaning of “presented” in s 177 of the Act, the linguistic infelicity highlighted by his Honour in the second sentence of [60] of the reasons resolved itself. That may be so, but it is no answer to the second of the reasons given by his Honour at [60]. There his Honour made reference to the terms of s 177(6) which provides that “[t]he expert certificate is not admissible as evidence if such a requirement [under s 177(5)] is made” (emphasis added). The obvious and natural implication to be drawn from this language is that, where such a requirement is not made (as was so in the present case), the expert certificate is admissible.

4. [28]

   That implication is powerfully supported by the language of the Explanatory Memoranda to the Commonwealth Bill and the Explanatory Note in relation to the 1995 NSW Bill: see [16] and [17] above. Reliance upon such material is authorised by both s 15AA (insofar as the material discloses the purpose of the section) and s 15AB(2)(e) of the Acts Interpretation Act 1901 (Cth) and by cognate provisions in ss 33 and 34(2)(e) of the Interpretation Act 1987 (NSW). Although it is the New South Wales Evidence Act that was the subject of the decision under appeal, the cognate nature of the Act with the Commonwealth Evidence Act and the principle of statutory interpretation referred to at [8] above unusually but logically make the Explanatory Memoranda to the Commonwealth Bills relevant to the current exercise of statutory interpretation.

5. [29]

   Justice Payne was fully cognisant of the principle of statutory interpretation, in truth a rebuttable presumption, associated with Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; [2017] HCA 55 at [21] and other authorities to like effect, namely that where the same word is used in different parts of the same Act, it should be presumed to bear the same meaning, and referred to this principle or presumption at [59] of his reasons, set out at [18] above.

6. [30]

   That presumption is arguably less strong, however, where statutory provisions have been added to an existing statute by a later legislature or where, as here, the provisions under consideration were added at a later stage of the drafting process, cl 177 being added several years after ALRC 38, and not appearing in the appended draft Bill.

7. [31]

   The attribution of a rigorous linguistic logic and consistency to the author of the statute or instrument whose authorship has changed over time requires considerable care, including where amendments or additions are made to existing Acts or Bills drafted many years before being passed into law or where the passage of a new Bill is subject to last-minute political debate and compromise: cf Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151; [2007] FCAFC 197 at [15]; Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130; [2009] FCAFC 185 at [77]-[78]; see, more generally, Australian Rail Track Corporation Limited v Dollisson [2020] NSWCA 58 at [47]. There was a reason why consistent language may not have been used and, in the circumstances of a “patchwork” statute, as the Full Court held in Blood-Smyth v Carter [1965] NSWR 946 at 950, “any attempt to give [a word] the same meaning wherever it occurs may well lead to error”. While the Act was not a “patchwork” statute, its drafting history lessens the strength of the application of the presumption to which the Appellant appealed: P Herzfeld and T Prince, Interpretation (3rd ed, Lawbook Co, 2024) at [5.188].

8. [32]

   Not only did the language of s 177(6) of the Act and that of the Explanatory Memoranda and Explanatory Note point against the operation of the presumption, but so did at least two other matters.

9. [33]

   First, the premise of Mr Odgers’ submission as to the meaning of the term “adduced” elsewhere in the Act was not sound, although concededly, in most of its iterations, it bore a meaning closer to “presented” or “tendered” rather than “admitted”. Three examples where the term “adduced” is clearly capable of bearing the meaning “admitted” or which have been interpreted as permitting evidence which may otherwise have been excluded as violating the opinion or hearsay rules to be admitted are immediately proximate to s 177 and, like that section, did not form part of the original draft of the Bill appended to ALRC 38.

10. [34]

    Thus, s 174(1) of the Act provides that:

11. [35]

    In Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235; [2021] HCA 22 at [31], the Court held in relation to the analogous provision in the Commonwealth Act that:

12. [36]

    In Minister for Home Affairs v Lee [2021] FCAFC 89 at [46], the Full Court of the Federal Court of Australia described Papua New Guinean legislation which had been exhibited to an affidavit as “admissible” pursuant to s 174(1)(c) of the Commonwealth Act. So, too, in Air Canada v Evans (2024) 114 NSWLR 433; [2024] NSWCA 153 at [76], a Canadian regulation was tendered, with Leeming JA stating that the copy was “admissible pursuant to s 174(1)(b) of the Evidence Act 1995 (NSW).” (emphasis added). See also Obannon v Scarffe [2021] FamCAFC 33; (2021) 62 Fam LR 397 at [25]; Tutoveanu v Velez [2025] NSWSC 359 at [57].

13. [37]

    The same observation may be made with regard to s 175 of the Act which relevantly provides:

14. [38]

    In these two subsections, the word “adduced” is used in a manner consistent with the language of “admitted”. In Talwar v Sarai [2018] FamCAFC 152 at [43], the Full Court of the Family Court of Australia observed that:

15. [39]

    There is no suggestion in any commentary of which I am aware that some further requirements need be satisfied for the purposes of s 175 of the Act other than that “the book is or would be used in the courts of the country to inform the courts about the unwritten or common law of the country” or “the interpretation of [a] statute of the country” in order for the relevant book to be admitted. The book in question will necessarily contain what would strictly be hearsay evidence, namely an out-of-court statement being relied upon to prove the existence of a fact in issue (namely the content of foreign law, which is a question of fact: see Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; [2005] HCA 54 at [115]). On one view, it would also contain a form of opinion evidence. And yet it has not been suggested that an exception to the prohibition on such evidence in ss 59(1) or 76 of the Act must be relied upon in order for the relevant book to be admitted into evidence. The admission of such books has not been conditioned on the basis that it needed to be shown that an exception to the hearsay rule had been satisfied or that it had been demonstrated that the opinion represented by the foreign judgment was made and based upon requisite expertise.

16. [40]

    Section 176 of the Act provides that:

17. [41]

    A significant additional matter that tended strongly against the operation of the presumption and the interpretation and result contended for by the Appellant lies in the different language used in s 177 of the Act as opposed to that used in s 79. That difference in language has been referred to at [12] above and must be regarded as deliberate. Less is required for a s 177 expert certificate than an expert report sought to be admitted into evidence through satisfaction of s 79 of the Act. It is difficult to fathom what the practical purpose of the more relaxed requirements of s 177 (as opposed to s 79) was and is if, notwithstanding its language, more is in fact required than is specified in s 177 in order for the certificate to be admitted into evidence. If more is required, a s 177 certificate would not represent a “[p]rocedure[] for proving other matters”, which is the heading to Division 4 of Part 4.6 of the Act in which s 177 appears.

18. [42]

    Moreover, the facilitative purpose of s 177 of the Act, as identified in cases such as Milne and Tong, would be undermined if the magistrate’s decision and approach represented the correct legal position. As the Director put it in her submissions: “[i]f the differently expressed requirements of s 177(1) were overlaid with the requirements of s 79(1), that facilitative purpose would be defeated.”

19. [43]

    In Milne at [216], Johnson J observed that:

20. [44]

    It might also be observed that the facilitative purposes of the other sections of Division 4 of Part 4.6 of the Act, namely ss 178, 179, 180 and 181 which, together with s 177, all provide for procedures for proving a range of other matters, including by certificate, would be undermined if the evidence referred to in those provisions were subject to super-added admissibility requirements or were required to be shown to be exceptions to the hearsay or opinion rules.

21. [45]

    It is also relevant to note that, lest there be a concern of the kind raised by Mr Odgers, namely that the facilitative purpose and the Court’s “gatekeeper” role in relation to the admissibility of evidence could be abused by seeking to slip controversial or “non-routine” matters into evidence by certificate, pursuant to s 177(5) of the Act, a written notice could be issued right up until the tender of the certificate which would permit the maker of the certificate to be called and, by s 177(6), the expert certificate would thereby not be admissible. Viewing the purpose, structure and language of s 177 as a whole, an expert certificate tendered under that section is admissible, subject to satisfaction of ss 177(2) and (3), unless its maker has been required to be called, in which case the certificate is not admissible: s 177(5). If the maker is called as a witness and wishes to give expert opinion evidence, he or she will only at that stage need to satisfy the qualifying requirements of s 79 of the Act.

22. [46]

    Justice Payne was thus correct, in my view, to hold that a certificate complying with s 177 of the Act is admissible without the need separately to satisfy the requirements of s 79 of the Act where, as in the present case, the person whose expertise and opinion is certified is not required for cross-examination. As such, evidence in the form of an expert certificate whose maker is not required for cross-examination is admissible as an exception to the opinion rule in s 76 of the Act. Section 177 is an example of what is noted immediately following s 76 in both the New South Wales Act and the Commonwealth Act, namely an “[o]ther provision[ ] of this Act”, in addition to those expressly stated to be exceptions to the opinion rule, which “may operate as [a] further exception[ ]” to the opinion rule.

Conclusion

1. [47]

   For the above reasons, I would grant leave to appeal but dismiss the appeal.

2. [48]

   WARD P: I agree with Bell CJ, broadly for the reasons that his Honour gives, that leave to appeal should be granted but that the appeal should be dismissed. I do not express a view as to the weight properly to be accorded to the explanatory memoranda to the Commonwealth legislation. I also agree with Leeming JA’s observations at [59]-[60]. The need to consider the correctness of R v Reid [1999] NSWCCA 258 did not arise.

3. [49]

   LEEMING JA: I have had the advantage of reading the reasons for judgment of the Chief Justice in draft. I agree with him that although there should be a grant of leave, the appeal should be dismissed. Subject to one matter, I also agree with his reasons. The qualification is that in reaching the same conclusion as to construction, I would give little weight to the wording of the explanatory memorandum of the Commonwealth provision.

4. [50]

   Because of the quality of the arguments, because the competing constructions are more finely balanced than they might at first appear, and because divergent views were expressed in the courts below, it may be helpful to emphasise the critical matters bearing upon the question of construction. What follows presupposes familiarity with the reasons of the Chief Justice.

5. [51]

   First, the critical distinction between s 79 and s 177 is quite subtle. Section 79 applies where the opinion sought to be tendered is an opinion of a person who has (in fact) specialised knowledge wholly or substantially based on training, study or experience, and the opinion is (in fact) based on that knowledge. Section 177 applies where the certificate states that the person has specialised knowledge, and sets out the opinion that is expressed to be wholly or substantially based on that knowledge.

6. [52]

   That is to say, the issues presented by s 79 are whether in fact the witness has specialised knowledge upon which the opinion is based, while the issues presented by s 177 are whether a document contains certain words.

7. [53]

   Secondly, whatever effect s 177 has to facilitate the tender of evidence, it is unlikely to give rise to any serious prejudice to the party against whom the opinion is sought to be tendered. That is because s 177 is only available where the party seeking to tender the opinion has provided notice and service in advance of the hearing (21 days or such other time that the Court may substitute for 21 days), and, most significantly, where a party who has been served does not object. There is no time limit for an objection. Nor is there any need for the objecting party to identify a reason or deficiency in the certificate. If a notice is served under s 177(5), then s 177(6) applies, and the certificate “is not admissible as evidence”. The result is that the s 177 certificate may only be tendered where there is no opposition from the litigant against whom it is deployed.

8. [54]

   Thirdly, s 177(5) and (6) produce the result that a certificate may be excluded from evidence without the need to resort to the issues presented by s 79. That tends to suggest that s 177 is independent of s 79.

9. [55]

   Fourthly, s 177(5) and (6) make it clear that s 177 is not a section which is confined in its operation to the process of seeking to tender a document, as opposed to its reception into evidence. It may be accepted, as Mr Odgers maintained when presenting this appeal, that at least in the large majority of provisions of the Act, that is the force of “adduce”. But s 177(6) means that the section speaks directly to the admissibility of the certificate, at least in that respect. Another way of making this point is that if s 177(6) is engaged, the certificate is inadmissible not by reason of its not falling within an exception to the opinion rule in s 76, but rather because of the direct operation of s 177(6).

10. [56]

    The foregoing reasons are sufficient to sustain the conclusion that s 177 is independent of s 79. Subsections (5) and (6) entitle the person against whom the opinion is sought to be tendered to veto its tender. The section would have virtually no work at all to do if it could only be deployed in the absence of opposition but nonetheless was cumulative upon s 79.

11. [57]

    The submissions to the contrary fell into two classes. Those based on fairness and sensible operation gave prominence to the risk of opinions which did not comply with s 79 being tendered (because a party might be unaware of the party’s right to object, or might be unwilling to be exposed to the power to order costs). I think these considerations are more theoretical than real. The more powerful submissions were textual, based on the language “adduce” elsewhere in the Act. However, as the Chief Justice notes, that use is not consistent, including in the immediately preceding section. To my mind the countervailing submissions are insufficient to detract from something more basic, namely, the structure of s 177 as a consensual mechanism, which flows from the veto to its operation conferred upon any party objecting to its use at any time and for any reason.

12. [58]

    That conclusion is also supported by the use in s 177 of the word “certificate”, although I would only place limited weight on this. “Certificate” is not defined, but its ordinary meaning in this context is a relatively short summary document. An expert might, for example, produce a certificate that a sample contained a particular concentration of prohibited drugs or that an object was an original artwork rather than a copy. While either of those opinions might be the result of much testing and analysis and consideration, it would be natural for the certificate merely to state the opinion, devoid of the reasoning which demonstrated that the opinion is based on the expert’s specialised knowledge. This tends to suggest that the section was not intended to be subject to the limitations in s 79.

13. [59]

    A further point made by Mr Odgers was based on passages in MDP v The King [2025] HCA 24; 99 ALJR 969, to the effect that there could be a miscarriage of justice by the receipt of evidence to which no objection was taken. There could be no doubt of the correctness of that proposition (part of the miscarriage in R v Birks (1990) 19 NSWLR 677 was the failure of counsel to object). But there is no sound basis to conclude that the passages in MDP were directed to anything connected with the idea that s 177 should be read as not undercutting the need to satisfy s 79 before expert opinion evidence was received. As was pointed out during the hearing, the submission also sits ill with what was said in Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3 at [57], where a unanimous High Court stated that the relevant question in relation to a notice to which no objection was taken was not whether it was inadmissible hearsay, but whether it had any probative value. That was not a case under the modern Evidence Acts, but there is no reason to doubt that it extends to trials governed by those Acts, as was observed in Hilton v Legal Profession Admission Board [2017] NSWCA 232 at [55].

14. [60]

    I accept Mr Odgers’ point that it does not follow as a matter of strict logic from a certificate to which an objection is made under s 177(5) being inadmissible that a certificate to which no objection is made under s 177(5) is admissible. But that does not stand in the way of reaching that conclusion on other grounds. I conclude that Payne JA reached the correct conclusion, such that while there should be a grant of leave, the appeal should be dismissed.