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[2026] NSWCA 58
respondent. Leave to appeal granted. Appeal dismissed. The primary judge’s conclusion that the compliant s 177 certificate was admissible without separate satisfaction of s 79, in the absence of a s 177(5)...
The Court of Appeal held that a properly prepared and served expert certificate under s 177 can be admitted without separately proving the expert-opinion requirements in s 79, if no party requires the certificate’s maker to give evidence under s 177(5). If that notice is given, the certificate is not admissible under s 177(6), and opinion evidence from the expert must meet the applicable requirements for oral evidence. The Court granted JS leave to appeal but dismissed the appeal, upholding the primary judge’s interpretation.
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2,140 words · generated 08/10/2026
JS was prosecuted in the Children’s Court on two charges. The dispute in the appeal concerned an expert certificate prepared by a forensic examiner. It gave an opinion about the type of gun depicted in images on JS’s mobile phone [2]-[4].
4 cited instruments linked from this judgment.
The certificate was tendered under s 177 of the Evidence Act 1995 (NSW). The parties accepted that it complied with s 177(1), and that the service requirements in ss 177(2) and 177(3) had been met [5]. JS did not give written notice under s 177(5) requiring the examiner to give evidence.
The magistrate nevertheless excluded the certificate. The basis was that it did not satisfy s 79, the exception for opinions based on specialised knowledge, and so could not overcome the opinion rule in s 76 [3]. JS was acquitted of one of the two charges as a consequence [4].
The Director of Public Prosecutions appealed on a question of law. Payne JA held that the magistrate had erred: s 177 provided a separate route for admitting a compliant expert certificate, without separate proof of s 79’s requirements where no notice under s 177(5) was given [5], [18], [24]. JS then sought leave to appeal to the NSW Court of Appeal. Bell CJ, Ward P and Leeming JA agreed that leave should be granted but the appeal dismissed [47]-[49].
The central issue was statutory, not a re-examination of the examiner’s actual expertise or the accuracy of the opinion. The question was how the certificate procedure in s 177 interacted with ss 76 and 79.
The Court read s 177 as a whole, rather than treating the word “adduced” in s 177(1) as determinative in isolation. A key textual feature was s 177(6), which says that the certificate “is not admissible as evidence” if a party makes a requirement under s 177(5). Bell CJ considered that the natural implication is that, where that requirement is not made, the certificate is admissible, assuming the other conditions of s 177 are satisfied [27], [45]-[46].
That reading also gave a function to the notice mechanism. A party served with a certificate may require the maker to give evidence. The certificate then cannot be admitted under s 177(6). If the expert gives oral opinion evidence, the requirements governing that evidence, including s 79, apply [45]-[46]. Leeming JA described ss 177(5) and (6) as giving the opposing party a veto over use of the certificate, exercisable at any time and without having to state a reason or identify a deficiency [53]-[56].
The difference between ss 79 and 177 mattered. Section 79 concerns whether the person actually has specialised knowledge and whether the opinion is in fact based on that knowledge. Section 177, by contrast, asks whether the certificate states that the person has specialised knowledge and sets out an opinion “expressed to be” based on it [12], [51]-[52]. Leeming JA distilled this distinction as whether the expert meets factual requirements under s 79, compared with whether the document contains specified words under s 177 [52].
For Bell CJ, imposing s 79 on top of s 177 would undermine the certificate procedure’s facilitative purpose. The less demanding wording in s 177 would have little practical effect if a party still had to establish all the matters required by s 79 before the certificate could be admitted [41]-[42]. Bell CJ also considered that such an approach would sit poorly with the heading to Division 4, “Procedures for proving other matters” [41].
The Court addressed the argument that “adduced” elsewhere in the Evidence Act generally means evidence presented or brought forward, rather than evidence admitted. Bell CJ accepted that this was often its meaning, but did not accept that it was uniform [33]. Sections 174 to 176, which concern evidence of foreign law, provided examples where “adduced” could include evidence being admitted [34]-[40]. The Court also relied on the role of s 177(6), which expressly speaks to admissibility.
The presumption that a word bears the same meaning throughout an Act did not determine the issue. Bell CJ said that this presumption was less strong where the provision had been added later in the drafting process [29]-[31]. Section 177 had not appeared in the draft Bill appended to ALRC Report No 38 and was introduced later [14]-[16]. Its later drafting history weakened the claim that “adduced” must be read identically to its uses elsewhere.
Drafting materials also supported the result, though the judges differed about their weight. The Commonwealth Explanatory Memoranda described cl 177 as providing for the “admission” of expert evidence by certificate [16]. Bell CJ considered that material powerfully supported the interpretation [28]. Ward P expressly did not state a view on its proper weight [48], while Leeming JA said he would give little weight to the Commonwealth explanatory memorandum [49]. The outcome therefore did not depend on unanimous reliance on that material: the judges agreed on the construction, while Leeming JA emphasised the statutory structure and the objection mechanism [53]-[57], [60].
Before this decision, the appellate courts had not resolved the interaction between ss 76, 79 and 177, despite the Evidence Acts having been in force for about 30 years [6]. The lower courts had taken different approaches. The primary judge held that s 177 was an independent procedure for admitting a certificate, while the magistrate had required compliance with s 79 as well [3], [5].
The decision establishes the Court of Appeal’s construction of s 177 for the circumstances before it: a compliant certificate is admissible under that section, subject to ss 177(2) and (3), when no party requires the maker to give evidence under s 177(5) [45]-[46]. It treats s 177 as an additional exception to the opinion rule, consistent with the note following s 76 that other provisions may operate as further exceptions [13], [46].
The decision does not remove s 79 from expert evidence generally. The judgment distinguishes the certificate route from expert opinion evidence that must be given orally. Where the certificate is excluded because a s 177(5) requirement is made and the expert is called, the opinion evidence must satisfy the applicable requirements, including s 79 [45]-[46]. Nor does the decision make every document labelled an expert certificate admissible. The certificate still needs to meet s 177(1), and service and timing requirements apply under ss 177(2) and (3) [11].
The decision also clarifies a point about statutory interpretation rather than creating an absolute rule about later-added provisions. The same-word presumption remains relevant, but its force may be reduced where a provision entered the drafting process later than the surrounding provisions [29]-[31]. The judgment insists on attention to wording, context, structure and drafting history together.
At [27], Bell CJ said the “obvious and natural implication” of s 177(6) is that a certificate is admissible if no requirement to call its maker is made. In plain English, the statute expressly identifies the circumstance in which the certificate cannot be used under s 177. The Court read that as supporting admission when the stated disqualifying circumstance is absent, provided the other statutory conditions are met.
At [30], Bell CJ said the presumption of consistent meaning is “arguably less strong” where a provision was added at a later drafting stage. Put simply, a word in a later-added provision should not automatically be forced to carry the meaning it appears to have in provisions drafted earlier. Context can show that the word is doing different work.
At [45], Bell CJ summarised the construction: a s 177 certificate is admissible if the service requirements are met, unless its maker has been required to be called. If the maker is called, the certificate itself is not admissible under s 177. That passage brings together the certificate route and the statutory objection mechanism.
At [52], Leeming JA contrasted s 79’s factual questions with s 177’s documentary requirements. In plain English, s 79 requires an assessment of the expert’s actual specialised knowledge and the actual basis of the opinion. Section 177 instead specifies what the certificate must say. That difference helps explain why the Court did not treat the provisions as cumulative.
At [56], Leeming JA said s 177 would have “virtually no work” if it could only operate without opposition but still required separate satisfaction of s 79. His point was functional: if the certificate procedure did no more than restate the ordinary requirements, its distinct wording and veto mechanism would have little purpose.
The decision is most directly relevant where a party seeks to tender a certificate under s 177 in a NSW proceeding, and the certificate appears to meet the requirements set out in s 177(1). The facts should also involve advance service under s 177(2) within the period required by s 177(3), or a different period substituted by the court [11].
The crucial further fact is whether a served party gives written notice under s 177(5) requiring the maker to give evidence. If no such notice is given, the Court’s construction supports admission under s 177 without a separate s 79 inquiry [45]-[46]. If notice is given, s 177(6) makes the certificate inadmissible as evidence under that section. Any opinion evidence then given by the expert is not resolved by the certificate procedure and must satisfy the requirements applicable to that evidence, including s 79 [45]-[46].
The case involved an opinion about an object depicted in images on a phone, but the Court’s reasoning was about the statutory mechanism, not that subject matter specifically. Bell CJ noted that s 177 applies in civil and criminal matters [6]. Leeming JA gave examples of certificates concerning drug concentration in a sample or whether an object is an original artwork, while presenting them as illustrations of the type of summary document the provision may contemplate [58].
The decision does not determine disputes about whether a particular certificate in a different case actually satisfies s 177(1), whether service was adequate, whether the court has substituted a different notice period, or whether the evidence should be excluded under some other applicable rule. Those questions were not the issue decided here.
The supplied judgment contains no decisions issued after 16 April 2026 that treat this precedent. It is therefore not possible, from this source, to say whether later courts have followed, distinguished or limited it.
The judgment itself refers to earlier authorities, not subsequent treatment. It discusses decisions about the meaning of “adduced”, statutory interpretation, expert opinion, evidence of foreign law and objections to evidence. It distinguishes JP v Director of Public Prosecutions (NSW), explaining that the expert in that case gave oral evidence and the admissibility of the earlier certificate was not an issue requiring decision [20]-[21]. It also refers to R v Milne (No 1) and Director of Public Prosecutions (NSW) v Tong for the facilitative purpose of s 177 [19].
As a result, the judgment provides a Court of Appeal ruling on the statutory construction question, but this supplied text does not establish how any later court has applied it.
Several questions were not decided because they were not necessary to resolve the appeal. The Court did not assess whether the forensic examiner’s actual opinion would have satisfied s 79 if the examiner had been called. The certificate’s admissibility was decided by construing s 177, not by making findings about the quality of the examiner’s specialised knowledge or reasoning.
The judgment also did not decide how s 177 interacts with other possible grounds of exclusion in a particular case. It held that s 79 need not be separately satisfied when the certificate is admitted under s 177 and no notice under s 177(5) is given. It did not hold that s 177 overrides every other evidentiary rule or discretionary power.
Another issue left open was the full significance of the explanatory materials. Bell CJ relied on the Commonwealth Explanatory Memoranda as support for the interpretation [28]. Ward P did not express a view about their weight, and Leeming JA would give them little weight [48]-[49]. The judges agreed on the result, but their different approaches mean the reasoning does not rest on an identical assessment of those materials.
Leeming JA also noted that it does not follow as a matter of strict logic from a certificate being inadmissible after a s 177(5) notice that it must be admissible if no notice is given [60]. The Court reached that conclusion on the combined statutory grounds discussed in the reasons, rather than treating s 177(6) alone as a complete logical answer.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: JS v Director of Public Prosecutions (NSW) [2026] NSWCA 58
Hearing dates: 16 March 2026
Date of orders: 16 April 2026
Decision date: 16 April 2026
Before: Bell CJ at [1]
Ward P at [48]
Leeming JA at [49]
Decision: (1) Grant leave to appeal.
(2) Dismiss the appeal.
Catchwords: EVIDENCE — opinion evidence — exceptions — expert opinion — where expert certificate tendered and served under and in compliance with ss 177(1), 177(2) and 177(3) of the Evidence Act 1995 (NSW) — where maker of expert certificate not required to give evidence under s 177(5) of the Evidence Act 1995 (NSW) — whether opinion evidence in expert certificate admissible under s 177 of the Evidence Act 1995 (NSW) as an exception to s 76 of the Evidence Act 1995 (NSW) — whether requirements of s 79 of the Evidence Act 1995 (NSW) required to be satisfied for an expert certificate to be admissible under s 177
STATUTORY INTERPRETATION — departure from literal meaning — unreasonable consequences — presumption that word in statute bears same meaning as same word elsewhere in same statute — whether presumption applies less strongly where provision in question containing word was added to statute at later stage of drafting process
Legislation Cited: Acts Interpretation Act 1901 (Cth) ss 15AA and 15AB(2)(e)
Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Procedure Act 1986 (NSW) ss 282, 283
Evidence Act 1995 (Cth) ss 76(1), 174(1)(c), 177
Evidence Act 1995 (NSW) ss 3(2), 59(1), 76(1), 79, 174(1), 175, 176, 177, 178, 179, 180, 181
Interpretation Act 1987 (NSW) ss 33 and 34(2)(e)
Cases Cited: Air Canada v Evans (2024) 114 NSWLR 433; [2024] NSWCA 153
Australian Rail Track Corporation Limited v Dollisson [2020] NSWCA 58
Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130; [2009] FCAFC 185
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15
Blood-Smyth v Carter [1965] NSWR 946
Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151; [2007] FCAFC 197
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235; [2021] HCA 22
Director of Public Prosecutions (NSW) v Tong [2004] NSWSC 689; (2004) 151 A Crim R 296
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Hill v Zuda Pty Ltd (2022) 275 CLR 24; [2022] HCA 21
Hilton v Legal Profession Admission Board [2017] NSWCA 232
JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669; 256 A Crim R 447
MDP v The King [2025] HCA 24; 99 ALJR 969
Minister for Home Affairs v Lee [2021] FCAFC 89
Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) 271 CLR 495; [2020] HCA 29
Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; [2005] HCA 54
Obannon v Scarffe [2021] FamCAFC 33; (2021) 62 Fam LR 397
R v Birks (1990) 19 NSWLR 677
R v Falzon (2018) 264 CLR 361; [2018] HCA 29
R v Milne (No 1) [2010] NSWSC 932; (2010) 260 FLR 166
R v Reid [1999] NSWCCA 258
Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; [2017] HCA 55
Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3
Talwar v Sarai [2018] FamCAFC 152
Tutoveanu v Velez [2025] NSWSC 359
X v Australian Prudential Regulation Authority (2007) 226 CLR 630; [2007] HCA 4
Texts Cited: Australian Law Reform Commission, Evidence (Report No 38, June 1987)
Evidence Bill 1991 (Cth)
Evidence Bill 1993 (Cth)
Evidence Bill 1994 (Cth)
Evidence Bill 1995 (NSW)
Explanatory Memorandum, Evidence Bill 1993 (Cth)
Explanatory Memorandum, Evidence Bill 1994 (Cth)
Explanatory Note, Evidence Bill 1995 (NSW)
P Herzfeld and T Prince, Interpretation (3rd ed, Lawbook Co, 2024)
Category: Principal judgment
Parties: JS (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation: Counsel:
SJ Odgers SC, J Brock, M Watts (Applicant)
S Dowling SC, E Jones, J Dorney (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2025/00428773
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
In proceedings in the Children’s Court, an expert certificate was tendered that set out the opinion of a forensic examiner in relation to the type of gun that was depicted in images on JS’s mobile phone.
Section 177(1) of the Evidence Act 1995 (NSW) (the Act) provides that evidence of a person’s opinion may be “adduced” by tendering an expert certificate. The certificate must comply with various requirements, including that the opinion it sets out must be expressed to be based on the person’s specialised knowledge.
The expert certificate complied with the requirements of s 177(1) of the Act and was served with an accompanying notice in compliance with ss 177(2) and 177(3) of the Act. JS did not give notice requiring the forensic examiner to be called to give evidence under s 177(5) of the Act.
Section 76 of the Act, known as the “opinion rule”, provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. Section 79 of the Act provides that the opinion rule does not apply to evidence of a person’s opinion where the opinion is based on the person’s specialised knowledge.
The children’s magistrate (the magistrate) refused to admit the certificate into evidence on the basis that it was not admissible under s 76 of the Act because it did not comply with the requirements of s 79 of the Act. Consequent on this ruling, JS was acquitted of one of two charges. The Director of Public Prosecutions appealed to the Supreme Court on a question of law under the Crimes (Appeal and Review) Act 2001 (NSW).
The primary judge held that the magistrate erred in law in refusing to admit the certificate into evidence. The effect of his Honour’s decision was that the certificate was admissible as evidence of the opinion it recorded because it complied with s 177 of the Act and was not required separately to comply with the requirements of s 79 of the Act where no notice had been given under s 177(5) of the Act requiring the forensic examiner to be called to give evidence.
The appeal challenged the decision of the primary judge on the grounds that his Honour erred in holding that the word “adduced” in s 177(1) of the Act meant “admitted” and that s 177 was an exception to s 76 of the Act.
The Court (Bell CJ, Ward P and Leeming JA agreeing) held, dismissing the appeal:
Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235; [2021] HCA 22; Minister for Home Affairs v Lee [2021] FCAFC 89; Air Canada v Evans (2024) 114 NSWLR 433; [2024] NSWCA 153; Obannon v Scarffe [2021] FamCAFC 33; (2021) 62 Fam LR 397; Tutoveanu v Velez [2025] NSWSC 359; Talwar v Sarai [2018] FamCAFC 152; Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; [2005] HCA 54; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21; R v Milne (No 1) [2010] NSWSC 932; (2010) 260 FLR 166; Director of Public Prosecutions (NSW) v Tong [2004] NSWSC 689; (2004) 151 A Crim R 296, cited.
Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; [2017] HCA 55, applied.
Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151; [2007] FCAFC 197; Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130; [2009] FCAFC 185; Australian Rail Track Corporation Limited v Dollisson [2020] NSWCA 58; Blood-Smyth v Carter [1965] NSWR 946, cited.
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) 230 CLR 89; [2007] HCA 22; R v Falzon (2018) 264 CLR 361; [2018] HCA 29; Hill v Zuda Pty Ltd (2022) 275 CLR 24; [2022] HCA 21, referred to.
BELL CJ: This is an application for leave to appeal from a decision of Payne JA sitting in the Common Law Division of the Supreme Court on an appeal on a question of law arising from a decision of Children’s Magistrate Eckhold (the magistrate): Director of Public Prosecutions (NSW) v JS [2025] NSWSC 1172 (primary judgment or PJ).
In proceedings in the Children’s Court, a forensic examiner had issued an expert certificate which, in compliance with s 177 of the Evidence Act 1995 (NSW) (the Act), set out the opinion that he held and that was expressed to be wholly or substantially based upon the maker’s knowledge.
The opinion was in relation to the type of gun that was depicted in images on the mobile phone of JS (the Appellant). The magistrate refused to admit the expert certificate into evidence on the basis that it did not comply with s 79 of the Act and therefore fell foul of s 76 of the Act which is defined as the “opinion rule”.
Consequent upon this ruling, JS was acquitted of one of two charges in the Children’s Court.
On an appeal on a question of law under the Crim**es (Appeal and Review) Act 2001 (NSW), Justice Payne held that the magistrate erred in law in excluding the expert certificate in circumstances where the expert certificate complied with s 177(1) and where the procedure specified in ss 177(2) and (3) of the Act had been followed (as was common ground). The effect of his Honour’s decision was that a compliant s 177 expert certificate was admissible as evidence of the opinion it recorded and was not required separately to comply with the requirements of s 79 of the Act in the absence of written notice to the party proposing to tender the expert certificate that its maker was required to be called to give evidence under s 177(5).
Because the application raises a nice question relating to the interaction, if any, between ss 76, 79 and 177 of the Act which has hitherto not been the subject of any appellate decision in the 30 years since the passage of the Act and cognate legislation including the Evidence Act 1995 (Cth), and where the question raised has implications generally for both civil and criminal matters (both ss 79 and 177 applying equally to civil and criminal proceedings), it is appropriate that leave to appeal be granted.
Although the question raised in the current case is relatively finely balanced, for the reasons that follow, the appeal should be dismissed.
Before turning to those reasons, because the Act and the (Cth) are in materially identical form (including with corresponding section numbers), and because some of the cases referred to in these reasons deal with either the New South Wales or the Commonwealth Act, for the most part no differentiation between the two Acts is made in these reasons. As will be seen, however, aspects of the two Acts’ respective drafting history and the terms of their Explanatory Memoranda and Explanatory Note differ. Notwithstanding the differences, it is trite that there should be consistency in the interpretation of cognate legislation, especially where it is uniform or at least preponderantly so: (1993) 177 CLR 485 at 492; [1993] HCA 15; (2007) 230 CLR 89; [2007] HCA 22 at [135]; (2018) 264 CLR 361; [2018] HCA 29 at [49]; (2022) 275 CLR 24; [2022] HCA 21 at [25].
“76 The opinion rule
(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
(2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.”
“79 Exception: opinions based on specialised knowledge
(1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
…”
“177 Certificates of expert evidence
(1) Evidence of a person’s opinion may be adduced by tendering a certificate (expert certificate) signed by the person that—
(a) states the person’s name and address, and
(b) states that the person has specialised knowledge based on his or her training, study or experience as specified in the certificate, and
(c) sets out an opinion that the person holds and that is expressed to be wholly or substantially based on that knowledge.
(2) Subsection (1) does not apply unless the party seeking to tender the expert certificate has served on each other party—
(a) a copy of the certificate, and
(b) a written notice stating that the party proposes to tender the certificate as evidence of the opinion.
(3) Service must be effected not later than—
(a) 21 days before the hearing, or
(b) if, on application by the party before or after service, the court substitutes a different period—the beginning of that period.
(4) Service for the purposes of subsection (2) may be proved by affidavit.
(5) A party on whom the documents referred to in subsection (2) are served may, by written notice served on the party proposing to tender the expert certificate, require the party to call the person who signed the certificate to give evidence.
(6) The expert certificate is not admissible as evidence if such a requirement is made.
(7) The court may make such order with respect to costs as it considers just against a party who has, without reasonable cause, required a party to call a person to give evidence under this section.” (emphasis added)
It is convenient immediately to note a subtle textual difference between s 79 and s 177 of the Act. The former provision requires that the person giving the evidence has specialised knowledge and that his or her opinion is wholly or substantially based on that knowledge — these are matters which must be demonstrated if objection is taken to the admission of an expert’s report: see, for example, Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [32], [34], [37], [42]. The latter provision, by way of contrast, only requires a statement that the expert has specialised knowledge based on his or her training, study or experience and that the opinion held is expressed to be based wholly or substantially upon that knowledge. It will be necessary to return to the significance of these subtle linguistic differences later in these reasons. It will be immediately apparent, however, that they indicate differences between the two sections, and that compliance with s 177 will generally be forensically simpler than compliance with s 79, a matter that may be thought to inform the legislative purpose underpinning s 177.
There is a note to s 76 of both the New South Wales Act and the Commonwealth Act which lists specific exceptions to the opinion rule as follows:
“• summaries of voluminous or complex documents (section 50 (3))
• evidence relevant otherwise than as opinion evidence (section 77)
• lay opinion (section 78)
• Aboriginal and Torres Strait Islander traditional laws and customs (section 78A)
• expert opinion (section 79)
• admissions (section 81)
• exceptions to the rule excluding evidence of judgments and convictions (section 92 (3))
• character of and expert opinion about accused persons (sections 110 and 111).”
This note goes on to state that “[o]ther provisions of this Act, or of other laws, may operate as further exceptions”. The note does not form part of the Act (see s 3(2)) but may nonetheless be taken into account in its interpretation: see X v Australian Prudential Regulation Authority (2007) 226 CLR 630; [2007] HCA 4 at [35]-[38], [114]; Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) 271 CLR 495; [2020] HCA 29 at [17]. The note is, however, delphic as to what these other provisions might be but it is significant to note, as explained below, that it was introduced into the draft legislation prior to the time that Divisions 3 and 4 (containing cl 177, which would become s 177 of the Act when ultimately passed) of Part 4.6 were introduced.
“The following exceptions to the opinion evidence rule are available: …”
The change in the wording of the note to the original draft of the Bill to the form in which it now appears, namely to add that “[o]ther provisions of this Act, or of other enactments, may operate as further exceptions”, was introduced in the Evidence Bill 1991 (Cth), a precursor to the Evidence Bill 1993 (Cth) (1993 Commonwealth Bill) which was where what became s 177 of the Act was first introduced.
Very significantly for present purposes, the Explanatory Memorandum to the 1993 Commonwealth Bill provided at [299] in relation to cl 177 that:
“This clause provides for the admission of except [sic] evidence by tender of a certificate given by an expert setting out his or her opinion.” (emphasis added)
The title of the 1993 Commonwealth Bill was changed so that it became the Evidence Bill 1994 (Cth) (1994 Commonwealth Bill). Clause 299 of the Explanatory Memorandum to the 1994 Commonwealth Bill was in the same terms as the corresponding clause in the Explanatory Memorandum to the 1993 Commonwealth Bill other than the substitution or correction of the word “expert” for “except” with the consequence that it provided:
“This clause provides for the admission of expert evidence by tender of a certificate given by an expert setting out his or her opinion.” (emphasis added)
“Clause 177 provides for evidence of an expert’s opinion to be given by certificate. The party tendering an expert certificate must serve notice, and a copy, of it on each other party before the hearing. A party so served can require the expert to be called as a witness.” (emphasis added)
The note to cl 76 of the 1995 NSW Bill was, however, expressed in materially indistinguishable terms from the note to s 76 of the Commonwealth Act and, apart from identifying express exceptions to the opinion rule, also stated that “[o]ther provisions of this Act, or of other laws, may operate as further exceptions.”
“[57] The critical question here is whether admissibility of a certificate made under s 177 is conditioned not only upon compliance with s 177 but upon the separate satisfaction of s 79. The better view is that it is not. Section 177 provides a separate route to admit opinion evidence. An opinion contained in a certificate which complies with s 177 is admissible as an exception to the opinion rule in s 76, unless and until the expert is required for cross-examination under s 177(5), in which case the standard of admissibility under s 79 applies to any opinion expressed by the expert. The interpretation I prefer is supported by the text, context and purpose of s 177.
[58] By its text, s 177 creates a procedure for the admission of expert opinion evidence. The requirements for admissibility of an opinion contained in a certificate made under s 177 are set out in subsections (1)(a)-(c). The opening words of the section are that ‘evidence of a person’s opinion may be adduced by tendering a certificate ...’ (emphasis added). Those words are important.
[59] As Basten JA pointed out in R v Zhang [2005] NSWCCA 437, by reference to the decision of Simpson J in R v Nassif [2004] NSWCCA 433 at [36] and [47], the terminology of the Evidence Act includes reference to evidence being ‘adduced’, ‘admitted’ and ‘used’. Restrictions on the way in which evidence may be ‘used’ tend to assume that it has been ‘admitted’: see, eg, s 136. However, evidence which is ‘adduced’ is not necessarily ‘admitted’: see, eg, s 137. Accordingly, in some usages in the Evidence Act, the term ‘adduced’ is to be be [sic] understood as referring to evidence which is tendered. While it is generally presumed that a word or phrase has the same meaning throughout an Act: see, eg, Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; [2017] HCA 55 at [21] (the Court), the same words in different sections can mean different things if the surrounding words of the provisions, or ‘the subject matter in connection with which [the word] is used and ... its collocation, are different’: Perry Herzfeld and Thomas Prince, Interpretation (3rd ed, Lawbook Co, 2024) at [2.10]. The use of the word ‘adduced’ in s 177 is such a case.
[60] In context, ‘adduced’ in s 177(1) can only mean admitted rather than tendered. First, it makes no sense to read s 177(1) as meaning ‘evidence of a person’s opinion may be [tendered] by tendering a certificate ...’ Secondly, ss 177(5)-(6) provide that in circumstances where the recipient of a certificate serves written notice requiring the maker of the certificate to give evidence, the expert certificate is not admissible as evidence. Thus, if the conditions in s 177(1)(a)-(c) are complied with, evidence of a person’s opinion may be ‘admitted’ by tendering a certificate complying with those requirements.
[61] Sections 177(1)(a) and (1)(b) require no elaboration. The key condition in s 177(1) is sub-section (c) which provides that for the certificate to be admissible it must set out ‘an opinion that the person holds and that is expressed to be wholly or substantially based on that knowledge’. This is expressed in similar language to s 79, in that it uses the words ‘wholly or substantially based on that knowledge’. The important difference, however, lies in the words ‘expressed to be’, which are used in s 177 and not in s 79.
[62] The language of 79(1) of the Evidence Act requires demonstration, at least to some extent, that the opinion expressed is ‘wholly or substantially based’ on the relevant ‘specialised knowledge’, such as by explaining the connection between the evidence and the expertise (see Honeysett at [24]; Dasreef at [37]).
[63] The phrase ‘expressed to be’ is apt to describe that something has been shown, communicated, or stated to exist or be a certain way. Inclusion of the words ‘expressed to be’ in s 177(1)(c) means that it is satisfied where so much is stated in the certificate; that the opinion that the person holds is identified and is expressed to be wholly or substantially based on specialised knowledge. In other words, it suffices where this connection is stated to exist. Compliance with s 177(1)(c) thus creates a less stringent test for admissibility than that in s 79(1). But this does not mean that s 177 is inconsistent with s 79(1). Section 177 is a provision which facilitates the admissibility of relatively routine expert opinion. The clear safeguard for a person served with a certificate made under s177 [sic] is that they may, until the point the certificate is admitted in evidence, give written notice under s 177(5). At that point, the certificate becomes inadmissible by reason of s 177(6). The sanction for calling the expert to give evidence, without reasonable cause, is costs: s 177(7).
[64] Admission of expert opinion under s 79(1) requires satisfaction of the two conditions I have addressed above by reference to the decisions of the High Court in Honeysett and Dasreef. Section 177 creates a separate procedure for the admission of expert opinion contained in a certificate. Admissibility of an opinion contained in a certificate requires compliance with the matters addressed in s 177 and does not require separate compliance with s 79. Section 177 is intended to facilitate proof of relatively routine matters calling for expert opinion.”
“… creates a procedure for the admission of expert evidence [in courts] … which is intended to prevent the unnecessarily expensive task of proving relatively routine matters in court proceedings.” (emphasis added)
Dowd J had also said in Tong at [33] that:
“[t]he admission process can be prevented by the service of a notice by the opposing party under s 177(5) of the Act obliging the calling of oral evidence. The expert certificate therefore does not become admissible. There is a sanction to prevent the unnecessary calling of a witness, in that a cost penalty may be imposed.”
Justice Payne considered the decision of Beech-Jones J, when a member of this Court, in JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669; (2015) 256 A Crim R 447 (JP). JP was relied upon by the Appellant both before his Honour and in this Court to support the proposition that a certificate tendered under s 177 of the Act must, in addition to complying with s 177, also meet the preconditions identified under s 79(1).
Justice Payne made the point that JP was distinguishable because the expert in that case was called to give expert evidence, and his expert evidence given orally was admitted. Because his evidence was given orally, there was no purpose to the tender of an earlier expert certificate and no occasion to rule on its admissibility. To the extent that Beech-Jones J hypothesised at [56] that, “[h]ad the certificate been rejected on the basis that it did not disclose how the methodology that was applied led to [the expert’s] ultimate conclusion then it would have been open to the prosecution to lead oral evidence that remedied the deficiency”, that was not an issue which was necessary for his Honour to decide and nothing in Beech-Jones J’s reasons suggests that the proper construction of s 177 of the Act and its interaction with ss 76 and 79 was the subject of any argument.
At [74] of his reasons, Justice Payne concluded that “the history of the provision is a neutral factor in determining its correct construction”. His Honour does not appear to have been taken to the Explanatory Memoranda to the 1993 and 1994 Commonwealth Bills which have been noted at [16] above. Although his Honour was, of course, concerned with the interpretation of the New South Wales Act, that Act is cognate with the Commonwealth Act which was assented to on 23 February 1995 almost four months prior to its New South Wales analogue which was assented to on 19 June 1995. As already observed, the two should be interpreted consistently, and for this reason, the content of the Explanatory Memoranda to the Bills that became the Commonwealth Act is germane.
At [75]-[76] of his reasons, Justice Payne observed that:
“As regards questions of policy, I do not accept that the construction I prefer gives rise to any relevant unfairness. This is because, as I have said, the person against whom the certificate is tendered can elect to have the certificate rendered inadmissible by serving a written notice, right up until the time the certificate is admitted in evidence. In such a case, the expert opinion would only be admissible if it met the two conditions imposed by s 79 of the Evidence Act. The sanction for unnecessarily calling the expert to prove those matters is costs under s 177(7).
The construction of s 177 which I prefer does not, expressly or by implication, alter the meaning of s 79(1). Rather, s 177 is a facultative provision. The Evidence Act should be construed on the basis that its provisions are intended to give effect to harmonious goals: Project Blue Sky at [70] (McHugh, Gummow, Kirby and Hayne JJ). The construction I prefer gives effect to harmonious goals between the prohibition in s 76 and the separate exceptions to that rule contained in s 79 and s 177, which each operate together in the way I have described.”
Two grounds of appeal are pursued: first, that the judge erred in holding at PJ [59]-[60] that “adduced” in s 177(1) of the Act means “admitted”, and not “presented” and, secondly, that his Honour erred in holding that s 177 of the Act is an exception to the opinion rule in s 76 of the Act.
Mr Odgers SC, who appeared for the Appellant, submitted that the word “adduced” was used throughout the Act and that, consistently with its use elsewhere in the Act, the word “adduced” in s 177(1) meant “presented” or “brought forward by a party” to the proceedings. Because “adduced” meant “presented” in s 177(1) and was not concerned with admissibility, the argument continued, s 177 did not thereby create an exception to the rule of inadmissibility in s 76(1) of the Act. Mr Odgers went so far as to submit that the word “adduced” always means “presented” when used in the Act.
Mr Odgers was particularly critical of the first of the two reasons Justice Payne gave for his conclusion at [60] of his reasons (see [18] above), submitting that if “adduced” was given the meaning of “presented” in s 177 of the Act, the linguistic infelicity highlighted by his Honour in the second sentence of [60] of the reasons resolved itself. That may be so, but it is no answer to the second of the reasons given by his Honour at [60]. There his Honour made reference to the terms of s 177(6) which provides that “[t]he expert certificate is not admissible as evidence if such a requirement [under s 177(5)] is made” (emphasis added). The obvious and natural implication to be drawn from this language is that, where such a requirement is not made (as was so in the present case), the expert certificate is admissible.
That implication is powerfully supported by the language of the Explanatory Memoranda to the Commonwealth Bill and the Explanatory Note in relation to the 1995 NSW Bill: see [16] and [17] above. Reliance upon such material is authorised by both s 15AA (insofar as the material discloses the purpose of the section) and s 15AB(2)(e) of the Acts Interpretation Act 1901 (Cth) and by cognate provisions in ss 33 and 34(2)(e) of the Interpretation Act 1987 (NSW). Although it is the New South Wales Evidence Act that was the subject of the decision under appeal, the cognate nature of the Act with the Commonwealth Evidence Act and the principle of statutory interpretation referred to at [8] above unusually but logically make the Explanatory Memoranda to the Commonwealth Bills relevant to the current exercise of statutory interpretation.
Justice Payne was fully cognisant of the principle of statutory interpretation, in truth a rebuttable presumption, associated with Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; [2017] HCA 55 at [21] and other authorities to like effect, namely that where the same word is used in different parts of the same Act, it should be presumed to bear the same meaning, and referred to this principle or presumption at [59] of his reasons, set out at [18] above.
“174 Evidence of foreign law
(1) Evidence of a statute, proclamation, treaty or act of state of a foreign country may be adduced in a proceeding by producing:
(a) a book or pamphlet, containing the statute, proclamation, treaty or act of state, that purports to have been printed by the government or official printer of the country or by authority of the government or administration of the country; or
(b) a book or other publication, containing the statute, proclamation, treaty or act of state, that appears to the court to be a reliable source of information; or
(c) a book or pamphlet that is or would be used in the courts of the country to inform the courts about, or to prove, the statute, proclamation, treaty or act of state; or
(d) a copy of the statute, proclamation, treaty or act of state that is proved to be an examined copy.
…”
“… [w]here evidence is adduced which meets one of the conditions in s 174, a court is entitled to ascertain the content of the foreign law by reference to the material before it, in absence of expert evidence: see, eg, VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239 at [29]-[30], quoting Applicants in V 722 of 2000 v Minister for Immigration and Multicultural Affairs [2002] FCA 1059 at [33] (approved on appeal in VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80); Re Tang (2017) 52 VR 786 at 803-804 [64]-[65]; Xu v Wang (2019) 58 VR 536 at 554-555 [70]. Of course, where none of the conditions in s 174 are engaged, proof of foreign law, through expert evidence, is required: Mokbel (2013) 40 VR 625 at 633 [22], 634 [24]-[26], unless the foreign laws in question are so well-known that their contents are “notorious”: Mokbel (2013) 40 VR 625 at 634 [26], referring to Saxby v Fulton [1909] 2 KB 208.” (emphasis added)
In Minister for Home Affairs v Lee [2021] FCAFC 89 at [46], the Full Court of the Federal Court of Australia described Papua New Guinean legislation which had been exhibited to an affidavit as “admissible” pursuant to s 174(1)(c) of the Commonwealth Act. So, too, in Air Canada v Evans (2024) 114 NSWLR 433; [2024] NSWCA 153 at [76], a Canadian regulation was tendered, with Leeming JA stating that the copy was “admissible pursuant to s 174(1)(b) of the Evidence Act 1995 (NSW).” (emphasis added). See also Obannon v Scarffe [2021] FamCAFC 33; (2021) 62 Fam LR 397 at [25]; Tutoveanu v Velez [2025] NSWSC 359 at [57].
The same observation may be made with regard to s 175 of the Act which relevantly provides:
“175 Evidence of law reports of foreign countries
(1) Evidence of the unwritten or common law of a foreign country may be adduced by producing a book containing reports of judgments of courts of the country if the book is or would be used in the courts of the country to inform the courts about the unwritten or common law of the country.
(2) Evidence of the interpretation of a statute of a foreign country may be adduced by producing a book containing reports of judgments of courts of the country if the book is or would be used in the courts of the country to inform the courts about the interpretation of the statute.” (emphasis added)
“… If caution is needed when dealing with expert evidence as to the content of foreign law, a fortiori, greater caution is required in dealing with evidence admitted under ss 174 and 175 [of the Commonwealth Act] when that evidence has not been explained by an expert. …” (emphasis added)
There is no suggestion in any commentary of which I am aware that some further requirements need be satisfied for the purposes of s 175 of the Act other than that “the book is or would be used in the courts of the country to inform the courts about the unwritten or common law of the country” or “the interpretation of [a] statute of the country” in order for the relevant book to be admitted. The book in question will necessarily contain what would strictly be hearsay evidence, namely an out-of-court statement being relied upon to prove the existence of a fact in issue (namely the content of foreign law, which is a question of fact: see Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; [2005] HCA 54 at [115]). On one view, it would also contain a form of opinion evidence. And yet it has not been suggested that an exception to the prohibition on such evidence in ss 59(1) or 76 of the Act must be relied upon in order for the relevant book to be admitted into evidence. The admission of such books has not been conditioned on the basis that it needed to be shown that an exception to the hearsay rule had been satisfied or that it had been demonstrated that the opinion represented by the foreign judgment was made and based upon requisite expertise.
Section 176 of the Act provides that:
“176 Questions of foreign law to be decided by judge
If, in a proceeding in which there is a jury, it is necessary to ascertain the law of another country which is applicable to the facts of the case, any question as to the effect of the evidence adduced with respect to that law is to be decided by the judge alone.” (emphasis added)
The more natural meaning of “adduced” in the context of s 176 is “admitted” or at least includes the concept of admission. A judge will generally not be engaged in deciding “any question as to the effect of the evidence” unless it has already been admitted into evidence.
A significant additional matter that tended strongly against the operation of the presumption and the interpretation and result contended for by the Appellant lies in the different language used in s 177 of the Act as opposed to that used in s 79. That difference in language has been referred to at [12] above and must be regarded as deliberate. Less is required for a s 177 expert certificate than an expert report sought to be admitted into evidence through satisfaction of s 79 of the Act. It is difficult to fathom what the practical purpose of the more relaxed requirements of s 177 (as opposed to s 79) was and is if, notwithstanding its language, more is in fact required than is specified in s 177 in order for the certificate to be admitted into evidence. If more is required, a s 177 certificate would not represent a “[p]rocedure[] for proving other matters”, which is the heading to Division 4 of Part 4.6 of the Act in which s 177 appears.
Moreover, the facilitative purpose of s 177 of the Act, as identified in cases such as Milne and Tong, would be undermined if the magistrate’s decision and approach represented the correct legal position. As the Director put it in her submissions: “[i]f the differently expressed requirements of s 177(1) were overlaid with the requirements of s 79(1), that facilitative purpose would be defeated.”
In Milne at [216], Johnson J observed that:
“Section 177 may be regarded as fulfilling a general function which is similar to the use of specific classes of certificate evidence in s 282 of the Criminal Procedure Act [1986 (NSW)](medical examinations), s 283 of that Act (law enforcement devices) and s 43 of the Drug Misuse and Trafficking Act 1985 (NSW) (analysts' certificates).”
A s 282 certificate under the Criminal Procedure Act 1986 (NSW) is, by subsection (2) of that section, “admissible as evidence of the matters stated in the certificate” (emphasis added). A certificate under s 283 of the same Act certifying particulars of certain matters is described as being “admissible in all criminal proceedings as evidence of those particulars” (emphasis added). This point, of course, does not directly bear on the question of interpretation thrown up by this appeal but it does illustrate the practice of the New South Wales legislature in permitting certificates to be used to prove certain matters in court proceedings.
It might also be observed that the facilitative purposes of the other sections of Division 4 of Part 4.6 of the Act, namely ss 178, 179, 180 and 181 which, together with s 177, all provide for procedures for proving a range of other matters, including by certificate, would be undermined if the evidence referred to in those provisions were subject to super-added admissibility requirements or were required to be shown to be exceptions to the hearsay or opinion rules.
It is also relevant to note that, lest there be a concern of the kind raised by Mr Odgers, namely that the facilitative purpose and the Court’s “gatekeeper” role in relation to the admissibility of evidence could be abused by seeking to slip controversial or “non-routine” matters into evidence by certificate, pursuant to s 177(5) of the Act, a written notice could be issued right up until the tender of the certificate which would permit the maker of the certificate to be called and, by s 177(6), the expert certificate would thereby not be admissible. Viewing the purpose, structure and language of s 177 as a whole, an expert certificate tendered under that section is admissible, subject to satisfaction of ss 177(2) and (3), unless its maker has been required to be called, in which case the certificate is not admissible: s 177(5). If the maker is called as a witness and wishes to give expert opinion evidence, he or she will only at that stage need to satisfy the qualifying requirements of s 79 of the Act.
Justice Payne was thus correct, in my view, to hold that a certificate complying with s 177 of the Act is admissible without the need separately to satisfy the requirements of s 79 of the Act where, as in the present case, the person whose expertise and opinion is certified is not required for cross-examination. As such, evidence in the form of an expert certificate whose maker is not required for cross-examination is admissible as an exception to the opinion rule in s 76 of the Act. Section 177 is an example of what is noted immediately following s 76 in both the New South Wales Act and the Commonwealth Act, namely an “[o]ther provision[ ] of this Act”, in addition to those expressly stated to be exceptions to the opinion rule, which “may operate as [a] further exception[ ]” to the opinion rule.
For the above reasons, I would grant leave to appeal but dismiss the appeal.
WARD P: I agree with Bell CJ, broadly for the reasons that his Honour gives, that leave to appeal should be granted but that the appeal should be dismissed. I do not express a view as to the weight properly to be accorded to the explanatory memoranda to the Commonwealth legislation. I also agree with Leeming JA’s observations at [59]-[60]. The need to consider the correctness of R v Reid [1999] NSWCCA 258 did not arise.
LEEMING JA: I have had the advantage of reading the reasons for judgment of the Chief Justice in draft. I agree with him that although there should be a grant of leave, the appeal should be dismissed. Subject to one matter, I also agree with his reasons. The qualification is that in reaching the same conclusion as to construction, I would give little weight to the wording of the explanatory memorandum of the Commonwealth provision.
Because of the quality of the arguments, because the competing constructions are more finely balanced than they might at first appear, and because divergent views were expressed in the courts below, it may be helpful to emphasise the critical matters bearing upon the question of construction. What follows presupposes familiarity with the reasons of the Chief Justice.
First, the critical distinction between s 79 and s 177 is quite subtle. Section 79 applies where the opinion sought to be tendered is an opinion of a person who has (in fact) specialised knowledge wholly or substantially based on training, study or experience, and the opinion is (in fact) based on that knowledge. Section 177 applies where the certificate states that the person has specialised knowledge, and sets out the opinion that is expressed to be wholly or substantially based on that knowledge.
That is to say, the issues presented by s 79 are whether in fact the witness has specialised knowledge upon which the opinion is based, while the issues presented by s 177 are whether a document contains certain words.
Secondly, whatever effect s 177 has to facilitate the tender of evidence, it is unlikely to give rise to any serious prejudice to the party against whom the opinion is sought to be tendered. That is because s 177 is only available where the party seeking to tender the opinion has provided notice and service in advance of the hearing (21 days or such other time that the Court may substitute for 21 days), and, most significantly, where a party who has been served does not object. There is no time limit for an objection. Nor is there any need for the objecting party to identify a reason or deficiency in the certificate. If a notice is served under s 177(5), then s 177(6) applies, and the certificate “is not admissible as evidence”. The result is that the s 177 certificate may only be tendered where there is no opposition from the litigant against whom it is deployed.
**********
JS
Director of Public Prosecutions
(2005) 223 CLR 331
(2007) 226 CLR 630
(2003) 131 FCR 80
(2009) 181 FCR 130
(1990) 19 NSWLR 677
(2018) 264 CLR 361
(2014) 250 CLR 473
(2017) 52 VR 786
(2013) 40 VR 625
(2024) 114 NSWLR 433
(1993) 177 CLR 485
(2007) 169 FCR 151
(2011) 243 CLR 588
(2021) 273 CLR 235
(2007) 230 CLR 89
(2022) 275 CLR 24
(2020) 271 CLR 495
(2019) 58 VR 536
(2021) 62 Fam LR 397
(2010) 260 FLR 166
(2017) 262 CLR 456
Leave to appeal granted. Appeal dismissed. The primary judge’s conclusion that the compliant s 177 certificate was admissible without separate satisfaction of s 79, in the absence of a s 177(5) notice, was upheld.
That presumption is arguably less strong, however, where statutory provisions have been added to an existing statute by a later legislature or where, as here, the provisions under consideration were added at a later stage of the drafting process, cl 177 being added several years after ALRC 38, and not appearing in the appended draft Bill.
The attribution of a rigorous linguistic logic and consistency to the author of the statute or instrument whose authorship has changed over time requires considerable care, including where amendments or additions are made to existing Acts or Bills drafted many years before being passed into law or where the passage of a new Bill is subject to last-minute political debate and compromise: cf Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151; [2007] FCAFC 197 at [15]; Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130; [2009] FCAFC 185 at [77]-[78]; see, more generally, Australian Rail Track Corporation Limited v Dollisson [2020] NSWCA 58 at [47]. There was a reason why consistent language may not have been used and, in the circumstances of a “patchwork” statute, as the Full Court held in Blood-Smyth v Carter [1965] NSWR 946 at 950, “any attempt to give [a word] the same meaning wherever it occurs may well lead to error”. While the Act was not a “patchwork” statute, its drafting history lessens the strength of the application of the presumption to which the Appellant appealed: P Herzfeld and T Prince, Interpretation (3rd ed, Lawbook Co, 2024) at [5.188].
Not only did the language of s 177(6) of the Act and that of the Explanatory Memoranda and Explanatory Note point against the operation of the presumption, but so did at least two other matters.
First, the premise of Mr Odgers’ submission as to the meaning of the term “adduced” elsewhere in the Act was not sound, although concededly, in most of its iterations, it bore a meaning closer to “presented” or “tendered” rather than “admitted”. Three examples where the term “adduced” is clearly capable of bearing the meaning “admitted” or which have been interpreted as permitting evidence which may otherwise have been excluded as violating the opinion or hearsay rules to be admitted are immediately proximate to s 177 and, like that section, did not form part of the original draft of the Bill appended to ALRC 38.
Thus, s 174(1) of the Act provides that:
Thirdly, s 177(5) and (6) produce the result that a certificate may be excluded from evidence without the need to resort to the issues presented by s 79. That tends to suggest that s 177 is independent of s 79.
Fourthly, s 177(5) and (6) make it clear that s 177 is not a section which is confined in its operation to the process of seeking to tender a document, as opposed to its reception into evidence. It may be accepted, as Mr Odgers maintained when presenting this appeal, that at least in the large majority of provisions of the Act, that is the force of “adduce”. But s 177(6) means that the section speaks directly to the admissibility of the certificate, at least in that respect. Another way of making this point is that if s 177(6) is engaged, the certificate is inadmissible not by reason of its not falling within an exception to the opinion rule in s 76, but rather because of the direct operation of s 177(6).
The foregoing reasons are sufficient to sustain the conclusion that s 177 is independent of s 79. Subsections (5) and (6) entitle the person against whom the opinion is sought to be tendered to veto its tender. The section would have virtually no work at all to do if it could only be deployed in the absence of opposition but nonetheless was cumulative upon s 79.
The submissions to the contrary fell into two classes. Those based on fairness and sensible operation gave prominence to the risk of opinions which did not comply with s 79 being tendered (because a party might be unaware of the party’s right to object, or might be unwilling to be exposed to the power to order costs). I think these considerations are more theoretical than real. The more powerful submissions were textual, based on the language “adduce” elsewhere in the Act. However, as the Chief Justice notes, that use is not consistent, including in the immediately preceding section. To my mind the countervailing submissions are insufficient to detract from something more basic, namely, the structure of s 177 as a consensual mechanism, which flows from the veto to its operation conferred upon any party objecting to its use at any time and for any reason.
That conclusion is also supported by the use in s 177 of the word “certificate”, although I would only place limited weight on this. “Certificate” is not defined, but its ordinary meaning in this context is a relatively short summary document. An expert might, for example, produce a certificate that a sample contained a particular concentration of prohibited drugs or that an object was an original artwork rather than a copy. While either of those opinions might be the result of much testing and analysis and consideration, it would be natural for the certificate merely to state the opinion, devoid of the reasoning which demonstrated that the opinion is based on the expert’s specialised knowledge. This tends to suggest that the section was not intended to be subject to the limitations in s 79.
A further point made by Mr Odgers was based on passages in MDP v The King [2025] HCA 24; 99 ALJR 969, to the effect that there could be a miscarriage of justice by the receipt of evidence to which no objection was taken. There could be no doubt of the correctness of that proposition (part of the miscarriage in R v Birks (1990) 19 NSWLR 677 was the failure of counsel to object). But there is no sound basis to conclude that the passages in MDP were directed to anything connected with the idea that s 177 should be read as not undercutting the need to satisfy s 79 before expert opinion evidence was received. As was pointed out during the hearing, the submission also sits ill with what was said in Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3 at [57], where a unanimous High Court stated that the relevant question in relation to a notice to which no objection was taken was not whether it was inadmissible hearsay, but whether it had any probative value. That was not a case under the modern Evidence Acts, but there is no reason to doubt that it extends to trials governed by those Acts, as was observed in Hilton v Legal Profession Admission Board [2017] NSWCA 232 at [55].
I accept Mr Odgers’ point that it does not follow as a matter of strict logic from a certificate to which an objection is made under s 177(5) being inadmissible that a certificate to which no objection is made under s 177(5) is admissible. But that does not stand in the way of reaching that conclusion on other grounds. I conclude that Payne JA reached the correct conclusion, such that while there should be a grant of leave, the appeal should be dismissed.