2025/00428773
| Date | Party | Submission |
|---|---|---|
| 6/2/26 | Applicant | Submissions (PDF, 447.1 KB) |
| 27/2/26 | Respondent | Submissions (PDF, 422.7 KB) |
| 2/3/26 | Applicant | Reply (PDF, 197.3 KB) |
| 3/3/26 | Respondent | Certification for Publication (PDF, 422.7 KB) |
| 3/3/26 | Applicant | Certification for Publication (PDF, 88.8 KB) |
| 3/3/26 | Applicant | Grounds of Appeal (PDF, 117.8 KB) |
EVIDENCE – the applicant seeks leave to appeal from orders of Payne JA setting aside the order of the Magistrate and remitting the matter to Broadmeadow Children's Court. At first instance, Payne JA heard an appeal by the OPP against a decision of the Children's Court acquitting a 16-year-old defendant of unauthorised possession of a pistol under the Firearms Act 1996 (NSW). The acquittal followed the Magistrate's exclusion of an expert certificate under s 177 of the Evidence Act 1995 (NSW) which identified the item in videos as a pistol (or imitation pistol). The Magistrate held the certificate was inadmissible because it did not disclose the reasoning linking the expert's specialised knowledge to his opinion, thereby requiring compliance with s 79 of the Evidence Act in addition to s 177. Justice Payne found that the Magistrate erred. His Honour held that s 177 creates a separate procedure for admitting expert evidence and does not require separate compliance with s 79. A certificate that meets the requirements of s 177(1)(a)-(c) is admissible unless a notice under s 177(5) is served, which did not occur. The certificate expressly stated the opinion was based on the expert's specialised knowledge, satisfying s 177. Thus, Payne JA held that the Magistrate wrongly excluded the certificate and erred in preventing the prosecution from calling the expert to address any perceived deficiency. The appeal was allowed, the acquittal set aside, and the matter remitted to the Children's Court. On appeal, the applicant argues that Payne JA erred by (i) holding that the word "adduced" in s 177 ( 1) of the Evidence Act means "admitted", and (ii) holding that s 177 of the Evidence Act constitutes an exception to s 76( 1) of the Evidence Act. The dispute turns on the proper construction of these provisions, and the applicant argues that s 177 should be understood as procedural and not dealing with questions of admissibility.
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