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  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 ).
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 ) 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.