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Supreme Court 16 April 2026

JS v Director of Public Prosecutions (NSW)

[2026] NSWCA 58

Firearms & weapons

Citation: JS v Director of Public Prosecutions (NSW) [2026] NSWCA 58
Court: Supreme Court of New South Wales (Court of Appeal)
Date: 16 April 2026
Judge(s): Bell CJ (principal judgment at [1]); Ward P (agreeing at [48]); Leeming JA (agreeing at [49])

Background

This appeal arose from criminal proceedings in the Children's Court. The prosecution sought to tender an expert certificate — prepared by a forensic examiner — that expressed an opinion about the type of gun depicted in images found on the mobile phone of the appellant, JS. The certificate was prepared and served in compliance with the procedural requirements of section 177 of the Evidence Act 1995 (NSW) ("the Act"), and JS did not serve any written notice requiring the forensic examiner to be called to give evidence under s 177(5).

Despite the certificate's compliance with s 177, the Children's Court magistrate refused to admit it. The magistrate reasoned that the certificate did not satisfy the requirements of s 79 of the Act (the exception to the opinion rule for opinions based on specialised knowledge) and therefore fell foul of s 76 (the opinion rule, which generally renders opinion evidence inadmissible). As a consequence of that ruling, JS was acquitted of one of two charges.

The Director of Public Prosecutions appealed to the Supreme Court on a question of law. Payne JA, sitting in the Common Law Division, held that the magistrate had erred: a compliant s 177 certificate was admissible without the need separately to satisfy s 79, at least where no notice had been given under s 177(5) requiring the maker of the certificate to attend for cross-examination. JS then sought leave to appeal that decision to the Court of Appeal.

  • Whether the word "adduced" in s 177(1) of the Act means "admitted" — that is, whether s 177 operates as a self-contained pathway to admissibility for expert certificates, rather than merely providing a method for presenting opinion evidence that must independently satisfy s 79.

  • Whether s 177 of the Act functions as an exception to the opinion rule in s 76, such that an expert certificate tendered in compliance with s 177 is admissible without the party tendering it needing also to demonstrate compliance with s 79.

  • Whether the interpretive presumption that the same word bears the same meaning throughout a statute applies with equal force where the provision containing that word was added to the statute at a later stage of the drafting process.

Decision

The Court of Appeal, granting leave but dismissing the appeal, unanimously upheld the primary judge's decision. Bell CJ delivered the principal reasons, with Ward P and Leeming JA each agreeing.

Section 177 as a self-contained admissibility provision. The Chief Justice analysed the purpose, structure, and language of s 177 as a whole and concluded that it provides an independent route to admissibility for expert certificates. Central to this conclusion was the language of s 177(5) and (6): if a party serves written notice requiring the maker of the certificate to give evidence, the certificate "is not admissible." The clear negative implication — that where no such notice is served, the certificate is admissible — would be rendered otiose if the certificate also had to satisfy s 79 independently. In other words, s 177 was designed as a streamlined mechanism: if the certificate complies with ss 177(1)–(3) and no party requires the maker to attend, the certificate is admissible as evidence of the opinion it records.

The meaning of "adduced" in s 177(1). A key textual argument advanced by JS was that "adduced" in s 177(1) simply means "presented" or "put forward" — not "admitted" — and that the evidence must still pass through the s 79 gateway. Bell CJ acknowledged the force of the general presumption that the same word should bear the same meaning throughout a statute. However, applying Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456, the Court held that this presumption applies with less force where the provision containing the word was added at a later stage of the drafting process. Section 177 was introduced at a later point in the development of the uniform evidence legislation, and the drafting history — including differences between the Explanatory Memoranda to the Evidence Bill 1993 (Cth) and Evidence Bill 1994 (Cth) — strongly supported reading "adduced" in s 177(1) as meaning "admitted."

Textual distinction between s 79 and s 177. The Court drew attention to a subtle but significant difference between the two provisions. Section 79 requires that the person actually has specialised knowledge and that their opinion is based on it — matters that must be demonstrated if challenged. Section 177, by contrast, only requires a statement to that effect in the certificate and that the opinion is expressed to be based on that knowledge. This lighter requirement reflects the nature of s 177 as a procedural shortcut: the safeguard lies in the opposing party's ability to require the maker to attend for cross-examination under s 177(5), at which point the certificate becomes inadmissible and the witness must give evidence in the ordinary way (at which point s 79 would need to be satisfied).

Bell CJ acknowledged the question was "relatively finely balanced" but concluded that the statutory text, structure, legislative history, and Explanatory Memoranda all pointed in the same direction.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • (The judgment notes that the Court had regard to the implications of costs under s 177(7), though specific costs orders are not set out in the truncated text provided.)

Key Takeaways

  • Section 177 operates as a standalone admissibility mechanism. The Supreme Court held that an expert certificate complying with ss 177(1)–(3) and not challenged under s 177(5) is admissible as evidence of the opinion it records, without the tendering party needing also to satisfy the requirements of s 79.

  • Where an opposing party fails to serve a s 177(5) notice, the certificate is admissible. The notice mechanism requiring the certificate's maker to attend for cross-examination serves as the key procedural safeguard, rendering the certificate admissible even where the expert's qualifications or reasoning might otherwise have been challenged under s 79.

  • Consistent statutory meaning cannot be presumed where provisions have different legislative origins. The Court reinforced that the interpretive presumption that the same word bears the same meaning throughout a statute is weaker where the provision in question was introduced at a different stage of the drafting process.

  • Both civil and criminal proceedings are affected by the interpretation. Because ss 79 and 177 operate across civil and criminal matters, the Supreme Court's construction of s 177 as a self-contained admissibility route carries significance well beyond the criminal law context in which the case arose.

  • Under uniform evidence legislation, the decision is likely to inform Commonwealth proceedings. Because the NSW and Commonwealth Evidence Acts are in materially identical form (including corresponding section numbers), the Court's reasoning is likely to be influential in interpreting s 177 of the Evidence Act 1995 (Cth), although the Court noted some differences in the respective drafting histories and Explanatory Memoranda.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 3(2), 59(1), 76(1), 79, 174(1), 175–181
- Evidence Act 1995 (Cth), ss 76(1), 174(1)(c), 177
- Crimes (Appeal and Review) Act 2001 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 282, 283
- Interpretation Act 1987 (NSW), ss 33, 34(2)(e)
- Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB(2)(e)

Key Cases:
- Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235; [2021] HCA 22
- Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
- Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; [2017] HCA 55
- Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007