In a recent case before the Supreme Court of NSW, the Director of Public Prosecutions (DPP) appealed an acquittal in the Children’s Court. The appeal centred on whether a forensic expert’s certificate, identifying an item in videos as a pistol, should have been admitted as evidence. The Magistrate had ruled against admitting the certificate, finding a lack of clear connection between the expert’s knowledge and their identification, and that the certificate didn’t sufficiently explain the reasoning process. The Supreme Court, however, allowed the DPP’s appeal, ruling that the Magistrate had made a legal error in their interpretation of the Evidence Act. The court clarified that Section 177 of the Act provides a specific procedure for admitting expert certificates, and that such certificates don’t need to independently satisfy the stricter requirements of Section 79, provided they meet the conditions outlined in Section 177 itself and the opposing party doesn’t request the expert’s oral evidence.
Key Details of the Case
- Case Name: Director of Public Prosecutions (NSW) v JS
- Case Number: 2025/100886
- Court: Supreme Court of New South Wales
- Date of Decision: 10 October 2025
- Judge: Payne JA
- Plaintiff: Director of Public Prosecutions (NSW)
- Defendant: JS (referred to by pseudonym)
- Charge: Unauthorised possession of a pistol contrary to s 7(1) of the Firearms Act 1996 (NSW)
- Lower Court: Broadmeadow Children’s Court
- Magistrate: Magistrate Eckhold
- Key Legislation: Crimes (Appeal and Review) Act 2001 (NSW), Evidence Act 1995 (NSW), Firearms Act 1996 (NSW)
- Date of Alleged Offence: The defendant was 16 at the time of the alleged threats and when the videos were recorded.
- Date of Arrest: 9 October 2024
- Date of Acquittal: 22 November 2024
- Date of Supreme Court Appeal Hearing: 12 August 2025
Simple Summary of the Case
The Director of Public Prosecutions took issue with a decision made in the Broadmeadow Children’s Court. A young person, referred to as JS, was charged with having an unauthorised pistol. The prosecution’s main evidence for this charge was a certificate from a firearms expert, Mr. Grosmaitre. This certificate stated that an item seen in videos on JS’s phone looked like a specific model of Glock pistol and could be classified as a pistol, firearm, or imitation firearm under the Firearms Act.
The Magistrate decided not to allow this certificate as evidence. The Magistrate felt there wasn’t a clear enough “line” or connection shown between Mr. Grosmaitre’s expertise and his conclusion about the item in the videos. The Magistrate thought the certificate should have included more detail, like showing a picture of the actual pistol and explaining how it matched the item in the video. Because this certificate was the key evidence for the pistol charge, and it wasn’t admitted, JS was acquitted of that charge.
The DPP appealed this decision to the Supreme Court, arguing that the Magistrate made a mistake in law. The DPP contended that Section 177 of the Evidence Act allows expert certificates to be admitted if they meet certain requirements, and that these requirements are separate from, and less strict than, those in Section 79 of the same Act. The DPP argued that Mr. Grosmaitre’s certificate met the conditions of Section 177, and that the Magistrate wrongly demanded it also meet the higher standard of Section 79.
The Supreme Court agreed with the DPP. The court explained that Section 177 provides a simpler way to admit expert evidence in the form of a certificate, especially for routine matters. It stated that as long as the certificate identifies the expert’s specialised knowledge and declares that their opinion is based on that knowledge, it can be admitted. The court also noted that the opposing party has the right to request the expert be called for cross-examination, which would then trigger the need to meet the Section 79 requirements. Since JS’s legal team hadn’t formally requested Mr. Grosmaitre be called, and the certificate met the Section 177 criteria, it should have been admitted. The Supreme Court found the Magistrate made a legal error and sent the case back to the Children’s Court to be re-heard.
Q&A
* Is it legal to possess a pistol without authorisation in NSW?
No, it is illegal to possess a pistol without the proper authorisation under the Firearms Act 1996 (NSW). This includes imitation firearms that substantially duplicate a pistol.
* Can expert certificates be used as evidence in court?
Yes, under the Evidence Act 1995 (NSW), expert certificates can be used as evidence, provided they meet the requirements outlined in Section 177.
* What are the requirements for an expert certificate to be admitted under Section 177 of the Evidence Act?
The certificate must state the expert’s name and address, detail their specialised knowledge based on training, study, or experience, and clearly state that their opinion is wholly or substantially based on that knowledge.
* Does an expert certificate have to explain the expert’s entire reasoning process?
Not necessarily under Section 177. While Section 79 requires a more detailed demonstration of how specialised knowledge applies to the facts, Section 177 uses the phrase “expressed to be”, meaning it’s sufficient if the certificate states the opinion is based on specialised knowledge.
* What happens if the other side doesn’t agree with an expert certificate?
The party receiving the certificate can serve a written notice requiring the expert to give oral evidence for cross-examination. If this notice is given, the certificate is generally not admissible.
* Can a Magistrate refuse to admit an expert certificate if they think it’s not strong enough?
A Magistrate can refuse admission if the certificate doesn’t meet the requirements of Section 177. However, in this case, the Supreme Court found the Magistrate wrongly excluded the certificate. The Magistrate also erred by not allowing the prosecution to call the expert to clarify their opinion if they had concerns.
* What is the difference between “adduced” and “admitted” in legal terms?
“Adduced” generally refers to evidence being presented or tendered, while “admitted” means the court has accepted it as evidence. Section 177 of the Evidence Act uses “adduced by tendering” which the court interpreted as meaning “admitted.”
* Can an appeal based on a Magistrate’s decision be heard in the Supreme Court?
Yes, under Section 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW), a prosecutor can appeal to the Supreme Court against an acquittal if the appeal involves a question of law alone.
* What constitutes a “question of law alone” for an appeal?
This refers to an issue that can be decided independently of the specific facts of the case, such as the interpretation of a statute or a misdirection of law by the primary judge.
* What is the purpose of Section 177 of the Evidence Act?
The purpose is to simplify the process of admitting expert opinion evidence, particularly for relatively routine matters, by allowing it to be presented in a certificate rather than requiring the expert’s oral testimony in every instance.
* If a certificate meets Section 177 requirements, is it always admissible?
It is admissible unless the opposing party serves a notice requiring the expert to give oral evidence, as per Section 177(5).
* What happens if the Magistrate made an error in admitting or excluding evidence?
If the error involves a question of law alone, it can be grounds for an appeal to a higher court.
* Can a defendant be referred to by a pseudonym in court?
Yes, as in this case, a defendant can be referred to by a pseudonym, especially if they are a minor, to protect their identity.
* What was the specific charge JS faced?
JS was charged with unauthorised possession of a pistol contrary to Section 7(1) of the Firearms Act 1996 (NSW).
* Did JS plead guilty to any charges?
Yes, JS pleaded guilty to a separate charge of stalk or intimidate intending to cause fear of physical or mental harm.
* What was the specific expert certificate about?
It was from a forensic firearm examiner, Mr. Grosmaitre, identifying an item in videos as a Glock pistol and opining on its classification under the Firearms Act.
You can find more simplified NSW Supreme Court cases like this one at [https://medigosa.com/category/nsw-supreme-court-cases/](https://medigosa.com/category/nsw-supreme-court-cases/).
The full judgment can be accessed here: [Director of Public Prosecutions (NSW) v JS NSWSC 1172](http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2025/1172.html).