Category Archives: police experts

Admissibility of Police Reports

 

Police reports can often provide a useful contemporaneous account of an incident that later becomes the subject of court proceedings, criminal or civil.

However, police reports are prima facie a form of hearsay, so unless the party seeking to rely on the document can enliven one of the exceptions to that rule, the report will be inadmissible.

In this regard, it is also uncontroversial that police reports are a form of business record and therefore fall within the ambit of the exception to the hearsay rule contained in section 69 of the Evidence Act. If admitted as a business record, the report can then be used as evidence supporting the truth of the matters recorded therein, which is of course the main game when it comes to evidence at trial.

However, section 69 contains a couple of exclusions for the kinds of business records that do not pass the smell test for reliability that a document created in the course of everyday business (eg. an email) would otherwise possess.

One of these exceptions covers a situation where the matters contained in the report are recorded “in connection with an investigation relating or leading to a criminal proceeding” (per ss 69(3)(b)). That kind of report would ordinarily be inadmissible, the rationale being that once a criminal investigation is underway, human nature dictates that people, including perhaps even the police themselves, may tend to behave in a self-serving fashion.

In a recent decision that could ultimately prove frustrating for insurers in cases where fraud is alleged, Basten JA in Averkin v Insurance Australia Ltd [2016] NSWCA 122 ruled strictly on the question of the admissibility of a police report.

In any argument over the admissibility of a report, the principal question will be whether, objectively speaking, the police report reveals the police to have undertaken “an investigation which would probably lead to a criminal proceeding.” (Averkin at [28]).

The police report in Averkin described the incident as a ‘stolen vehicle’ case, noted a view that there was likely an accelerant used to start the car fire and recorded the nature of inquiries made of the car owner’s wife and neighbours.

The trial judge took the view that the test is whether the investigation has reached a particular stage where, in the ordinary course of events, it would have led to a criminal proceeding. In the instant case, where the police inquiries were very much of a preliminary nature, the trial judge found that the test wasn’t satisfied and therefore the report was admissible.

However, his Honour Basten JA took the following contrary view (at [28]) and found the report should have been ruled inadmissible:

It is patently obvious that on arrival at the scene the police had quickly formed the view that at least two serious property offences had been committed. If the correct approach is an objective assessment [of whether criminal proceedings are probable], this Court should come to the same view on the facts then apparent to the police.

There is an argument that the first few interviews and inquiries police make can be valuable in revealing a picture that is untainted by invention, collusion and lawyerly intervention. However, where even the slightest possibility of impartiality is revealed his Honour has deemed the risk of unfairness too great.

It is sometimes costly, inconvenient and even impossible to have in court the witnesses whose representations are recorded in police reports. However, when the report reveals even a preliminary view on the investigating officer’s part, parties will now need to find another way to make their case.

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Police ‘Argot’ Experts in drug cases: independent?

Drug trials often see the Crown tender telephone intercepts of coded conversations between an accused and their associates to support a submission that the interlocutors were talking about drugs; or at least using language consistent with talk of drugs.

It is a trite subterfuge device within the criminal community to use slang, or ‘argot’, in an attempt to  render ambiguous the true meaning and effect of their conversations. Nevertheless, when evidence of such conversations is put before a jury an expert’s guidance is necessary; even though many of the coded terms would be quite familiar to any juror who has taken the time to enjoy a few episodes of The Wire in their time.

Therefore, a police officer who has spent considerable amounts of their service dealing with the criminal drug milieu and is thereby purportedly qualified to give evidence of how such people talk, will be called to give evidence.

However, there are considerable dangers in putting such evidence before a jury. The case law illustrates some of the specific forensic dangers, but there are broader perhaps intrinsic issues with a police man or woman giving such evidence which would perhaps warrant an expert being drawn from outside the police force.

A good example of problems that can arise is Keller’s case. In Keller v R [2006] NSWCCA 204, the accused was charged with the supply of cocaine in a commercial quantity. A conviction was recorded at first instance and an appeal instituted raising an issue with regard to the opinion evidence given by a police officer as to the meanings of various words spoken during intercepted telephone conversations. Some of the more colourful language used included: ‘teeth’ (a reference to cocaine); ‘untickled’ (to purity); and ‘a farmer’ (to quantity, being a quarter of a kilogram).

At the time he gave his evidence, the expert was a member of the Australian Federal Police with extensive training and experience in drug related matters. For his opinion to be admissible under the Evidence Act (section 79) it would need to be wholly or substantially based on his training, study or experience. Yet a passage of cross-examination by the defendant’s counsel extracted by the Court of Appeal at [35] revealed that the opinion was not so founded:

“Q- You’ve said that the reference at page one…saying ‘that’s when I get the results’ is in your opinion a reference to a drug transaction?

A-That’s correct.

….

Q- You can’t say that simply by reading that, someone saying he’s going to meet someone at 9 o’clock in the morning that that relates to drugs can you?

A-I placed this telephone conversation in the total context of which it was involved.

Q-What was the total context Mr Smith that’ you’re talking about, what are the contextual matters that you rely on in reaching that conclusion?

A-The fact that Mr Denholm was arrested with half a kilo of cocaine the following day.”

**

The central problem was the admission by the expert that “..in part the opinion of the witness was arrived at having regard to the discovery of the cocaine in the possession of the co-accused who had conversed with the appellant.” (at [42]); as opposed to an objective assessment based on the expert’s experience in other matters of what the words referred to.

If it wasn’t for the skilled cross-examination at trial stage and the highly skilled appellate advocacy of Stephen Odgers SC this problem would not have been brought to light.

There was also an issue with respect to the manner in which the expert’s evidence was given. He gave evidence to the effect that in his opinion the parties to the intercepted conversations were actually talking about drugs rather than using language consistent with that state of affairs. This kind of evidence had previously been ruled inadmissible in other cases on the basis that it strayed far too close to the ultimate or central issue in the trial (ie. was the accused guilty). The common law rule against evidence being given which strays too close to the ultimate issue has now been abolished by section 80 of the Evidence Act, but judges are still reluctant to allow evidence of this kind and often find other ways to reject it (eg. s135 of the Evidence Act).

On how many other occasions has a police expert given evidence of what the accused or their associates were using was drug ‘argot’ and did so with a knowledge of the facts and circumstances in which the crime took place?

I suppose as a matter of good defence advocacy, how the witness reached their opinion, including their background knowledge of the case against the accused, should be put to the expert to ensure that any of that information has not coloured their opinion, albeit inadvertently.

Nevertheless, it was somewhat fortunate for the accused that his counsel was able to point to such a particular matter as he did in Keller’s case. Even if the expert did admit to having an expensive knowledge of the facts in the case, it would be an easy submission for the Crown prosecutor to make that this level of background understanding is necessary to enable the expert to properly opine.

However, the problem remains: if you know someone is accused of a drug offence and just how the case is put against them, it is a rare individual indeed who can compartmentalise their thinking to the extent necessary to prevent the same problem as that which occurred in Keller. This is not to say that there is any lack of propriety in the way these police witnesses conduct themselves, it is simply a matter of one’s independence of thought being coloured by among other things, a combination of what we know, our experience and life’s purpose .

This is a matter a judge alone could account for by the weight they accord the evidence, but this level of skill in assessing an expert witness’ credit may well be beyond a lay juror.

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