This case is about the NSW Director of Public Prosecutions appealing a decision made in the Children’s Court. A teenager, known as JS, was found not guilty of having a pistol without a permit because the Magistrate threw out the main piece of evidence. This evidence was a certificate from a firearms expert who said a thing in a video on the teenager’s phone looked like a Glock pistol. The Supreme Court had to decide if the Magistrate made a mistake in law by rejecting the expert’s certificate, looking at how two sections of the Evidence Act should work together. The higher court decided the Magistrate did get it wrong, so they overturned the not guilty verdict and sent the case back to the Children’s Court to be heard again.
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
- Judge: Payne JA
- Original Hearing Date: 22 November 2024 at Broadmeadow Children’s Court before Magistrate Eckhold.
- Appeal Hearing Date: 12 August 2025
- Final Decision Date: 10 October 2025
- Parties Involved: The Director of Public Prosecutions (NSW) as the plaintiff (the one appealing) and a teenager identified only by the letters JS, as the defendant. JS was represented by Legal Aid NSW.
- What JS was charged with: Originally, two things. First, stalking or intimidating his girlfriend, and second, having an unauthorised pistol. He pleaded guilty to the first charge but not guilty to the second one.
- The key evidence: A certificate from a Forensic Firearm Examiner, Mr Grosmaitre, who looked at videos from JS’s phone. He said the item JS was holding looked like a “9mm Parabellum calibre GLOCK Model 19 self-loading pistol” or at least an imitation of one, which is treated the same under the law.
- The Legal Problem: The Magistrate in the Children’s Court refused to accept the expert’s certificate as evidence. He said the expert didn’t properly explain the “line” or connection between his expertise and his conclusion that the item was a pistol.
- The Appeal: The prosecution appealed to the Supreme Court, arguing the Magistrate made a legal mistake about the rules for admitting an expert certificate under section 177 of the Evidence Act 1995.
- The Outcome: The Supreme Court agreed with the prosecution. The judge found that the expert’s certificate met all the requirements of the law and should have been allowed. The original not guilty decision was cancelled, and the case was sent back to the Children’s Court to be dealt with properly.
Simple summary of the case
The whole mess started when police searched the home of a 16 year old boy, JS, on 9 October 2024, after his girlfriend said he’d threatened her with a gun. They didn’t find a gun, but they took his phone. On the phone, they found videos of him holding what looked a lot like a pistol. Because of this, he was charged with possessing an unauthorised pistol.
When the case went to the Broadmeadow Children’s Court, the prosecution’s main proof was a certificate written by a firearms expert, Mr Grosmaitre. He’s a Crime Scene Officer who specialises in ballistics. He wrote that after watching the videos, the object JS was holding was, in his expert opinion, a Glock 19 self loading pistol or an imitation of one. Under the law in NSW, even having a realistic imitation firearm without a permit is illegal. The expert’s certificate clearly stated his qualifications and that his opinion was based on his specialised knowledge.
However, JS’s lawyer argued that the certificate wasn’t good enough. The lawyer said the expert didn’t explain exactly how he came to his conclusion. He didn’t, for example, show a picture of a real Glock 19 and point out the similarities to the item in the video. The Magistrate agreed with this argument. He said there wasn’t a clear “line” drawn between the expert’s knowledge and his final opinion. Because of this, he threw the certificate out, and without that evidence, the prosecution had no case. So, JS was found not guilty of the firearm charge.
The Director of Public Prosecutions wasn’t happy with this and appealed to the NSW Supreme Court. The main point of the appeal was about a specific rule in the law, section 177 of the Evidence Act. This section is a kind of shortcut to make court cases quicker and cheaper. It lets an expert just write a certificate with their opinion, and as long as it follows certain rules (like stating their expertise and that the opinion is based on it), it can be used as evidence. If the other side has a problem with the opinion, they have to give written notice that they want to cross examine the expert in person. If they do that, the certificate can’t be used. In this case, JS’s lawyer never gave that written notice. Instead, they just objected to the certificate on the day of the hearing.
The Supreme Court judge, Payne JA, looked at the law very carefully. He decided that the Magistrate in the Children’s Court got it wrong. The judge explained that section 177 is a separate pathway for getting expert evidence into court. As long as the certificate ticks all the boxes in section 177, it should be allowed in, unless the defence formally asks to question the expert. The Magistrate made a mistake by mixing up the rules of section 177 with another, more general rule (section 79) that applies when an expert gives evidence in person. The judge said the whole point of section 177 is to avoid lengthy arguments over routine expert matters. The certificate from Mr Grosmaitre did everything section 177 required, so it should have been accepted. Because of this legal error, the not guilty verdict was cancelled. You can read the full judgement details to understand the court’s reasoning. The case was sent back to the Children’s Court for a new hearing.
Q&A
- Is it illegal to have a toy gun that looks real?
Yes. In NSW, if an item “substantially duplicates” a real firearm, it’s called an imitation firearm. The law treats possessing an imitation pistol the same as possessing a real one, and you can be charged. - What if I just have a video of me with a fake gun?
As this case shows, just having a video or photo can be enough evidence for police to charge you. An expert can look at the footage and give an opinion that the item is a pistol or an imitation pistol, which could be used against you in court. - Can the police take my phone?
Yes, if they have a search warrant like they did in this case, they can seize items like your mobile phone if they believe it contains evidence of a crime. - What is an expert certificate?
It’s a document written by a qualified expert that gives their professional opinion on something. In court, it’s a shortcut used for straightforward matters so the expert doesn’t always have to show up in person, making things quicker and cheaper. - Do I have to accept what an expert says in their certificate?
No. Your lawyer can challenge it. But this case highlights the proper way to do it. You must give the other side written notice saying you want to question the expert in court. You can’t just wait until the hearing and say it’s not good enough. - What was the main legal mistake in the first trial?
The Magistrate wrongly applied the rules for live expert testimony (section 79) to a written expert certificate (section 177), which has its own, simpler set of rules for being admitted as evidence. - Does an expert have to explain every single step of their thinking in a certificate?
According to this Supreme Court decision, no. For a certificate under section 177, it’s enough for the expert to state their qualifications, state their opinion, and state that the opinion is based on their specialised knowledge. It doesn’t need a detailed breakdown of the reasoning process. - Can I be charged with a gun offence even if the police never find the actual gun?
Yes, absolutely. The prosecution in this case was built entirely on videos found on a phone, with no physical firearm ever being recovered. - Why was the defendant only called ‘JS’?
Because he was under 18 at the time of the offence, his identity is protected by law. He is what is known as a ‘protected defendant’ under the Children (Criminal Proceedings) Act 1987. - What happens now that the appeal was successful?
The ‘not guilty’ decision is cancelled. The case goes back to the Children’s Court for a new hearing, where the expert certificate will now likely be admitted as evidence. - Is it legal for the prosecution to appeal a not guilty verdict?
Generally, you can’t be tried twice for the same crime (double jeopardy). However, the prosecution can appeal if they believe the judge made an error of law, not just because they disagree with the verdict. That’s what happened here. - Does this mean JS is now guilty?
No. It just means the original hearing was flawed. He will have a new hearing at the Children’s Court to determine if he is guilty or not guilty based on all the evidence, including the now admissible certificate. - What’s the difference between an ‘imitation firearm’ and a ‘pistol’?
A pistol is a real firearm that fires projectiles. An imitation firearm looks like a real one but might not be able to fire. The key point is that for the charge of unauthorised possession, the law treats them the same. - Could the defence have won if they had handled it differently?
Possibly. If the defence lawyer had given proper written notice under section 177(5) to call the expert, the certificate would have been blocked. Then the expert would have had to give evidence in person and face cross-examination, where his reasoning could have been tested directly. - Where can I find more easy to understand summaries of court cases?
For more simplified summaries of legal judgements and what they mean for everyday people, you can find a good collection of more SAFLII simplified cases on https://medigosa.com/category/nsw-supreme-court-cases/.