For the purposes of s 69(3)(b) of the Evidence Act 1995 (NSW), the investigation in connection with which a representation was made must be extant at the time the representation is made; it is not sufficient that a representation is made in connection with a possible future investigation. Police records made before an investigation has commenced (e.g., initial attendance at a scene before forming a view that a crime has been committed) may not be excluded by s 69(3)(b). The question of who bears the burden of proving the s 69(3) exclusion applies remains open. An insurer alleging fraud must adduce sufficient evidence to establish its defence, and unexplained gaps in evidence (particularly regarding chain of custody of key physical evidence) may be fatal to the defence, especially given the heightened standard under s 140(2).
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