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Supreme Court 10 October 2025

Director of Public Prosecutions (NSW) v JS

[2025] NSWSC 1172

Firearms & weapons

Citation: Director of Public Prosecutions (NSW) v JS [2025] NSWSC 1172
Court: Supreme Court of New South Wales
Date: 10 October 2025
Judge: Payne JA

Background

A 16-year-old defendant, referred to by the pseudonym JS, was charged in the Children's Court with unauthorised possession of a pistol contrary to s 7(1) of the Firearms Act 1996 (NSW). The charge arose after police, executing a search warrant, found videos on the defendant's mobile phone showing him holding an item that appeared to be a pistol. The defendant pleaded guilty to a related stalking and intimidation charge but contested the firearms offence.

The prosecution relied on an expert certificate issued under s 177 of the Evidence Act 1995 (NSW) by Mr Grosmaitre, a forensic firearms examiner attached to the NSW Police Ballistics Investigation Section. Mr Grosmaitre's certificate identified the item in the videos as having the appearance of a 9mm Parabellum calibre Glock Model 19 self-loading pistol, and expressed opinions as to whether it constituted a pistol, firearm, or imitation firearm depending on its functionality.

The Children's Court Magistrate rejected the tender of the certificate on the basis that there was no sufficient "line" between the expert's stated area of expertise in forensic ballistics and the task of identifying a pistol from a photograph. Consequently, the charge was dismissed. The DPP appealed to the Supreme Court on a question of law alone under s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW).

  • Whether the Magistrate's exclusion of the s 177 certificate raised a question of law (rather than merely a question of fact or mixed fact and law), thereby founding the DPP's right of appeal.
  • Whether a certificate made under s 177 of the Evidence Act must independently satisfy the admissibility conditions imposed by s 79 (the exception to the opinion rule for specialised knowledge), or whether s 177 provides a separate and self-contained pathway to admissibility.
  • Whether the certificate in this case complied with the requirements of s 177(1), including the requirement under s 177(1)(c) that any opinion be "expressed to be wholly or substantially based on" the maker's specialised knowledge.
  • Whether the Magistrate erred in finding that the prosecution could not lead oral evidence to remedy any identified deficiency in the certificate.

Decision

Payne JA held that the Magistrate's error was one of law, satisfying the threshold for the DPP's appeal under s 56(1)(c) of the CAR Act. The error lay in the Magistrate's construction of s 177 of the Evidence Act: the Magistrate incorrectly treated s 177 as requiring the certificate to also satisfy the conditions of s 79. The question of statutory construction is a question of law, not fact.

Turning to the substance, the Court found that s 177 of the Evidence Act creates a distinct and self-contained statutory regime for the admission of expert certificates. A certificate admitted under s 177 does not need to independently meet the requirements of s 79. The legislature enacted s 177 as an alternative pathway, and grafting the requirements of s 79 onto s 177 would render that provision largely superfluous.

The Court held that the certificate in this case complied with s 177(1)(c) because it expressly stated that all opinions were "based wholly or substantially on" the maker's specialised knowledge in forensic ballistics. Annexure A to the certificate further demonstrated Mr Grosmaitre's detailed qualifications and experience, including his certification in the use and maintenance of a 9mm Parabellum self-loading pistol. No challenge had been made to Mr Grosmaitre's expertise. There was no basis for the Magistrate to find a deficiency in the certificate's expression of the link between the expertise and the opinion.

The Court also found error in the Magistrate's ruling that the prosecution could not lead oral evidence to remedy any identified deficiency. This compounded the error in the exclusion of the certificate.

Orders Made

  • The defendant to be referred to by the pseudonym "JS."
  • Appeal allowed.
  • The Magistrate's order of 22 November 2024 dismissing the charge in relation to sequence 2 (unauthorised possession of a pistol) set aside.
  • Matter remitted to Broadmeadow Children's Court to be dealt with in accordance with law.

Key Takeaways

  • Section 177 of the Evidence Act 1995 (NSW) provides a self-contained pathway for the admission of expert certificates: a certificate that complies with s 177(1) is not also required to independently satisfy the conditions of s 79.
  • A Magistrate's error in construing s 177 as requiring satisfaction of s 79 is an error of law, and is therefore appealable by the prosecution under s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW).
  • The requirement in s 177(1)(c) that an opinion be "expressed to be wholly or substantially based on" the maker's specialised knowledge is satisfied by the certificate itself containing a statement to that effect, provided no notice challenging the certificate has been issued under s 177(5).
  • Where a s 177 certificate adequately expresses the link between the expert's specialised knowledge and the opinions stated, a court cannot exclude the certificate on the basis that the expertise does not sufficiently connect to the identification task performed.
  • Excluding an expert certificate where the prosecution has not been afforded an opportunity to lead oral evidence to address any identified deficiency also constitutes an error of law.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 56(1)(c)
- Evidence Act 1995 (NSW), ss 76, 79, 177
- Firearms Act 1996 (NSW), ss 4(1), 4D(2)(a), 4D(3), 7(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)

Cases:
- Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
- Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
- Taub v R (2017) 95 NSWLR 388; [2017] NSWCCA 198
- R v Milne (No 1) [2010] NSWSC 932; (2010) 260 FLR 166
- JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669
- Director of Public Prosecutions (NSW) v Tong (2004) 151 A Crim R 296; [2004] NSWSC 689
- Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220
- CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 35; [1998] HCA 28
- Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
- SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
- Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; [2017] HCA 55
- R v Zhang [2005] NSWCCA 437
- R v Nassif [2004] NSWCCA 433
- R v PL [2009] NSWCCA 256
- Lazarus v Independent Commission Against Corruption [2017] NSWCA 37