Akers v Victoria Police (Review and Regulation) (Corrected) [2022] VCAT 720

WRITTEN REASONS (REVISED FROM TRANSCRIPT OF ORAL REASONS)

1. This is an application by Mr Bruce Akers for review of a decision made by the Public Access Deputy Commissioner (Commissioner) on 29 June 2021 refusing access to documents under section 25A(5) of the Freedom of Information Act (FOI Act).
2. The Commissioner's decision was in essence the same decision that was made by Victoria Police, the agency to whom Mr Akers made his FOI request. Victoria Police is the respondent to the VCAT proceeding.

1. There is a witness statement by Mr Akers that says that sets out extensive history and background to the FOI request that he made, and to the VCAT proceeding. Mr Akers elaborated on some of that history and background during the hearing. There is further history recorded in many VCAT decisions, particularly in one that Mr Akers provided to the Tribunal for the hearing - Akers v Victoria Police [2021] VCAT 1060.
2. I am conscious, therefore, that there is a wider picture behind the one that I must focus on immediately. Mr Akers has broader concerns that he has expressed, including how he claims he was treated by the authorities, especially during a police interview and investigation in 2016, and indeed subsequently when he was imprisoned. Mr Akers asserted that there have been continuing actions by police against him over many years.
3. As I indicated repeatedly during the hearing, I must focus on the FOI request, the evidence in support of the respective parties' cases, and the Law. And, by 'the Law', I mean primarily the FOI Act but also the relevant parts of the Crimes Act 1958 (the Crimes Act).
4. The FOI request relates to a police interview conducted on the 3rd or 4th of April 2016, which resulted in over 90 charges being laid against Mr Akers.
5. The precise documents sought were a 'copy of the recorded interview' and a copy of the interview transcript.
6. The response to that FOI request by Victoria Police included a statement that there were 84 pages identified as relevant to the request. Victoria Police did release to Mr Akers 23 pages of interview transcript outside the FOI Act. Those 23 pages are contained in the Tribunal book. (Originally the 23 pages were missing page 8, as was pointed out by Mr Akers. But page 8 is in the Tribunal Book, It is part of the evidence before the Tribunal. It is part of transcript that has been available to Mr Akers for a period of time now).
7. It was explained in evidence that there were a further 61 pages of transcript that relate to a separate exercise being what I will simply call 'an RSPCA interview' conducted on the same day or soon thereafter that - according to the evidence - was not part of the criminal matter.
8. I will say something briefly about the legislation that I have to consider. In outline, it's the FOI Act read with relevant parts of the Crimes Act.
9. The key provisions of the FOI Act include section 3, which contain the object of that legislation. But, paraphrasing now, the key provisions also include section 25A(5), which provides that an agency may refuse a request without identifying documents if, in particular , it is apparent that the documents are exempt and that no obligation would arise to grant access under a separate provision (section 25) to an edited copy, or it is apparent from the request that the person making the request would not want an edited copy.
10. Then there is section 38 of the FOI Act which provides - in summary - that a document is exempt if there is in force an enactment (an Act of Parliament) that specifically applies and prevents a person from disclosing the document.
11. I have referred to the Crimes Act. For the purposes of Mr Akers' application, the question is whether that is such an enactment that is in force that specifically applies and prohibits persons from disclosing relevant documents or information.
12. It is then within the Crimes Act - section 464JA(4) - that I need to look. That provides that a person must not supply or offer to supply an audio recording, or an audio-visual recording, (of a police interview) to another person other than a number of persons now mentioned. For the present case, the relevant person is described in paragraph (a): 'the suspect in relation to whom the recording was made'.
13. I mention, incidentally, paragraph (b): 'a legal practitioner representing the suspect'.[1]
14. That sub-section of the Crimes Act provides for a penalty, being Level 8 imprisonment (1 year maximum).
15. I referred to an 'audio or audio-visual' recording. There seems no controversy that in this case we are speaking about an audio recording - if one exists - rather than an audio-visual recording.
16. Before going further, I mention section 55 of the FOI Act. That provides that the agency has the onus of establishing that a decision, in respect of a request, was justified or that the Tribunal should give a decision adverse to the applicant.
17. Ultimately in this case the question will be whether Mr Akers is a 'suspect' for the purpose of section 464JA of the Crimes Act.
18. There is a definition of 'suspect' in section 464 of the Crimes Act. It means a person of or above the age of 18 years, who - and then there follow three paragraphs (a), (b) and (c). I will focus on paragraph (a) - the relevant one. It refers to a person who 'is suspected of having committed an offence'.
19. I note in passing that the expression 'person of interest' was sometimes used during the hearing. There is no definition of that expression in the Crimes Act. The question for me is not whether Mr Akers is or isn't, or has ever been, a person of interest, whatever precisely that does mean. The question is whether he is a 'suspect' for the purposes of the FOI Act and the Crimes Act provisions that I have mentioned.
20. Putting it another way, the question is whether a person who has been a suspect remains a suspect such that the agency is permitted to provide an audio recording of an interview to that person.

1. I will turn now to the evidence. There was a hearing that lasted half a day, this morning. There is voluminous written evidence in the Tribunal Book. There was oral evidence given by Inspector Craig Matters on behalf of the respondent. Mr Akers, the applicant, gave evidence. Both of them were cross examined.
2. There are particular points that emerged from the evidence, and with respect to them I make relevant findings.
3. When Inspector Matters was being cross-examined, he would - properly, in my view - not confirm whether or not Mr Akers is a person mentioned on the Police Force's Law Enforcement Assistance Program (LEAP) database or, if he were mentioned there, whether he was described there as a person who is a 'vexatious litigant' or 'vexatious complainant'.
4. There is evidence, which I accept, that a person's name can appear on the LEAP database, whether or not that person happens to be a suspect. There was further evidence related to that point, explaining what I would observe are well known purposes for which the LEAP database exists.
5. There was also evidence concerning part of the Court order made in 2017 when Mr Akers was convicted having pleaded guilty to a number of charges. That is an order permitting him to own a dog, but subject to what I will simply call 'monitoring conditions'.
6. There is that evidence. But, as I heard it put during the hearing and as I accept, the fact that somebody is subject to a court order which requires them to be monitored for some purpose or other, does not, of itself, make thar person a suspect.
7. There was evidence then about the possibility of information having been shared by Victoria Police with some or other agency. As I heard the evidence, it was not conceded that that had occurred. But whether or not it has ever occurred in this case, or in any other case, that of itself would not make the relevant person a suspect.
8. Then there was evidence about the possibility that another agency, (here an example specifically given was Racing Victoria Ltd), could potentially commence a proceeding such that Mr Akers could, or should, be regarded as a suspect currently.
9. In my view, that an agency - a regulatory body such as Racing Victoria - might commence a proceeding (under the Racing Act 1958 or the Rules of Racing) is really a matter of speculation or conjecture. That would not involve the subject person becoming a suspect for the purposes of the Crimes Act, which is the issue for me.
10. I accept the submission on behalf of Victoria Police that whether there is any possibility now that Mr Akers could become a suspect again arising out of any of the matters that were the subject of the April 2016 interview is mere conjecture.
11. Mr Akers told me in effect that he based his thinking about the issue on what he believes has happened to other people. Whether or not this, or something resembling it, has happened to other people is one matter but, in my view, it is a matter entirely of conjecture as to whether Mr Akers could again become a suspect. There is no evidence before me that would support a finding that Mr Akers is currently under suspicion - that he is currently suspected of having committed an offence - in relation to matters that were the subject of the interview (in relation to which any audio recording would have been created).
12. I have mentioned that there were over 90 charges laid following the April 2016 police interview. I have said that there was a guilty plea to a number of them. I think the number was 21 or thereabouts. I heard that there were therefore a number of charges withdrawn, and the material in the Tribunal Book that I was taken to supports that position. It is also beyond controversy, or any doubt, that Mr Akers has served the sentence that he was given.
13. Mr Akers was specifically asked by Mr Brnovic on behalf of Victoria Police whether, since he served his sentence, he had been law-abiding. Mr Akers elected not to comment or respond to that question. But I say again that there is no evidence before me that would support any finding other than that the guilty plea, the sentence and the serving of the sentence brought about the conclusion of the matters to which the April 2016 interview related.
14. I mention now, briefly, that there were some further documents submitted today. One was a warrant concerning Mr Akers' grandson. In my view that does not bear on the question as to whether Mr Akers is a suspect. The other document was a statement made by Inspector Matters in a proceeding involving both the same parties but otherwise a proceeding that is separate to and not directly related to the current proceeding. There is nothing I see in that statement that would support a conclusion in this case that Mr Akers is a suspect for relevant purposes.
15. So, I will turn now too the submissions that Mr Brnovich made on behalf of Victoria Police. I do not propose to dwell on each and every aspect of the submissions in detail. The submission were thoughtful, detailed and comprehensive.
16. Section 25A(5) of the FOI Act is really the starting point. Victoria Police cited Knight v Corrections Victoria [2010] VSC 338 on the application of that provision.
17. I am satisfied that the Crimes Act is an enactment that is in force for the purposes of section 38 of the FOI Act; that the Crimes Act applies specifically to information of the kind contained within the document (that is to say the audio recording that Mr Akers seeks); and that the Crimes Act prohibits persons from disclosing that material. Indeed, the provision makes it an offence to do so.
18. I am just going to go back a step briefly, because there is an aspect of section 25A that perhaps I didn't say enough about, and I just want to make clear what my views are about the point. That is that section 25A(5) provides - in summary - that the agency may refuse to grant access to documents without having identified all or any of them, and without specifying in respect of each document the provision or provisions under which they are claimed to be exempt, if its apparent from the nature of the documents as described in the request that all of the documents to which it relates are exempt documents; but also it is apparent from the nature of the documents so described that no obligation would arise under section 25 in relation to any of those documents to grant access to an edited copy of the document, or it is apparent that the person making the request would not want that.
19. I accept the submission on behalf of Victoria Police that the prohibition of the supply of the document applies to the whole of the document, so this isn't a case where the possibility of providing an edited version comes into consideration.
20. Now I will go back to the word 'suspect', because whether Mr Akers is a suspect for the purpose of section 464JA of the Crimes Act is key to the case. As I have said, 'suspect' means a person of or above the age of 18 years who is - and I underline the word 'is' (the present tense) - suspected of having committed an offence. I have to look at this now to see whether Mr Akers would be entitled to this document. Is he a suspect? Is he suspected of having committed a relevant offence? The tense is important. Parliament in enacting this provision has used the words 'is suspected'. Parliament did not use the words 'who is or who has ever been suspected'. And in the following paragraph (in section 464JA(4)), which I touched on earlier, Parliament said a legal practitioner representing the suspect. Parliament didn't say 'legal practitioner representing or who has represented the suspect'.
21. When I consider the meaning of these provisions, I must consider whether there is guidance in the Interpretation of Legislation Act 1984.
22. As Victoria Police submitted, there is guidance in section 35 of that Act.
23. Section 35 is headed 'Principles of and aids to interpretation'. Paragraph (a) of section 35 is important. That says a construction (or an interpretation) that would promote the purpose or object underlying the Act shall be preferred to one that would not promote that purpose or object. That is an important paragraph in this case.
24. Then, paragraph (b)(ii) of section 35 is also important because it says that consideration may be given to any matter or document that is relevant, including reports of proceedings in any House of the Parliament.
25. There was some discussion during the hearing about the Victorian Parliamentary debates and remarks made by the relevant minister in the second reading speech for the Bill that introduced the relevant provisions into the Crimes Act. That was the Minister for Police and Emergency Services at the time. Speaking about what I'll call the collection of provisions - not just section 464JA but the related provisions in the relevant subdivision of the Act - the Minister said the offences now appearing in the Crimes Act (including the offence of providing the audio to someone other than the persons lawfully entitled to it) are necessary, because records of interview often contain a great deal of sensitive information about circumstances of the alleged offence and identifying details of persons including investigators, victims, suspects and third parties.
26. I am paraphrasing now, but the Minister said, further, that in some cases there will be graphic or disturbing information that should not be freely disseminated and that the Bill seeks to preserve the integrity of the process and to protect against personal details and possibly graphic details of offences being made public unnecessarily. A little later on the Minister said, without using the word 'suspect' but using the expression 'accused person', that an accused person and their legal representative will be entitled to access and use a recording for purposes connected with their involvement in the criminal justice system.[2]
27. In my view, those remarks in the second reading speech read with the collection of provisions that surround section 464JA(4) indicate this. The purpose of a suspect being given the audio recording of a record of interview is met when the period for that is limited to the period in which the person is under suspicion, any investigations are on foot, any criminal proceedings are commenced, and any criminal proceedings are pursued to the point where the proceedings end or the person otherwise ceases to be a suspect.
28. The second reading speech, the context of the surrounding provisions, and what I consider to be the apparent purpose of the provisions - together with the wording of the provisions (the use of present tense) and the wording of the surrounding provisions in sub-section (4) that the submissions highlighted all point, in my view, to this conclusion. A person who is at one point in time a suspect does not remain a suspect indefinitely, and the person will not remain a suspect for the purposes of these FOI Act and related provisions beyond the time at which the person ceases to be a suspect (for instance, because the person has pleaded guilty, the person has served a sentence, and there is no indication other than that 'the file has been closed' on the matters that were the subject of the police interview).
29. Mr Akers made written submissions that run to many pages, and he elaborated on his written submissions today.
30. Mr Akers made a submission to the effect that he remains a suspect for the reasons that he has given. I have talked about the evidence about the LEAP database, the monitoring conditions about his dog ownership, potential action by Racing Victoria, and other matters. I have indicated why, in my view, none of those points or any of the other points that emerged during the hearing would enable me to reach a conclusion that Mr Akers is currently a suspect for relevant purposes.
31. As I have discussed, the central submission for Victorian Police, on the other hand, is to the effect that for the purposes of section 464JA(4) of the Crimes Act, a person is a suspect only until the completion of the relevant investigation and any consequential criminal proceedings, or until the person otherwise ceases to be a suspect.
32. In summary, I need to look at that provision of the Crimes Act in the context of the relevant subdivision. I won't say everything there is to say about the further matters in the written submissions for Victoria Police, but I accept the submissions about the nature and purpose of the regime that is created in the legislation, and I accept that the analysis of the legislation for which Victoria Police contends would promote the objectives of the relevant part of the Crimes Act.
33. It may be put in a nutshell that, in the case of somebody who has been found guilty or has been convicted, the person then becomes somebody who is properly described for the relevant legislative purposes as an offender, but they are no longer a 'suspect'.

1. Mr Akers is entitled to make the application that he has made, but the application has to be considered on the basis of the evidence and on the basis of the legislation, as the legislation is properly to be understood and properly to be interpreted. The legislation - the FOI Act read with the Crimes Act - of course involves a suspect (while he or she is a suspect) being able to access an audio recording of a police interview. But if a person is not in the categories of persons permitted to be given an audio recording, then the person is not entitled to the recording. And the way the legislation operates is that if a person is not currently a suspect, then there is a provision that prohibits that person being given the document. What that means is that the document is exempt. And the way that section 25A(5) of the FOI Act operates is that Victoria Police, in receiving the FOI request, can consider that this is a document that would be exempt and respond to a person making the request on that basis.
2. I affirm the decision under review.

[2] It was confirmed during the hearing that the following sentence appearing in the submissions was extracted not from Hansard but, rather, from a decision by the Information Commissioner in another case. I now include that sentence because I consider that it states the correct position. 'Where a person must answer an allegation, they have a right to the recording[. O]nce any need to answer that allegation has ended, so too does their right to the document'.