The content of the Report and the Akers' Proposed Changes

1. I summarise below, as briefly and as neutrally as possible, the events of 3 and 4 April 2016 which are described in the Report.
2. On 3 April 2016, Mr Akers was arrested for the offence of criminal damage. The relevant damage was said to have been directed at a number of horses he did not own but instead trained and cared for on behalf of other people.
3. When police attended Mr Akers' location, there was a discussion between him and the officers for a period of around an hour. After that discussion ended, Mr Akers walked towards the police van. He ended up on the ground and says he suffered physical injuries, including to his shoulder. How Mr Akers ended up on the ground and was injured and the nature of those injuries is contested.
4. Also contested was how Mr Akers was put into the rear of the police van and transported to the Broadmeadows police station. Mr Akers complained that he was placed in a position and driven in such a manner that he was unable to breathe properly and was thrown around in the van such that he suffered physical injuries.
5. Mr Akers stated that the police officers refused to allow him to collect his medications and his breathing apparatus (a CPAP machine) before leaving for the police station.
6. On arrival at the Broadmeadows police station, Mr Akers' belt and shoes were removed. Both of those actions caused health related concerns for Mr Akers as he relied on the belt as a back support and, as he had an existing skin condition on his feet, he said walking with bare feet in the cell exacerbated that condition.
7. The custody sergeant spoke with Mr Akers about his then current health conditions. The discussions touched on his need to have access to his CPAP machine. The custody sergeant noticed indentations on Mr Akers' wrists (apparently caused by handcuffs) and had them photographed. She then called Ambulance Victoria to attend and examine Mr Akers. She also arranged for a Forensic Medical Officer (FMO) to attend in order to assess whether Mr Akers had a mental impairment and was fit to be interviewed.
8. As I understood it, Ambulance officers arrived but left after Mr Akers said he did not need them. Then the FMO attended and, after undertaking an examination, concluded Mr Akers was fit to be interviewed. Later during the interview, Mr Akers complained about shortness of breath and tightness in his chest. An Ambulance was called again and Mr Akers was transported to the Northern Hospital.
9. Mr Akers was returned to the Broadmeadows police station in the early hours of 4 April 2016. On his return, charges were laid (one count of criminal damage and 91 charges of animal cruelty). Mr Akers was placed before a Magistrate and was then bailed in order to allow him to collect personal items from his home.
10. As I understood it, Mr Akers was taken to his home in order to collect personal belongings (including medication and his CPAP machine) and was then returned to Broadmeadows police station. Mr Akers complained that, although he was told he would be able to shower while at his home, that did not eventuate (he says because the police officers wasted time taking him all around the property) and, amongst other things, he complained that his inability to shower led to his skin condition being further exacerbated.
11. By the time of his return to Broadmeadows police station, the RSPCA was in attendance and asked to serve notices on Mr Akers. The RSPCA officers also asked to use the police recording facilities to confirm that service had been effected. The Report said words to the effect that there was no interview about the criminal offences whereas Mr Akers said he was interviewed by officers from the RSPCA and also Victoria Police. As further discussed below, a copy of the transcript of the discussions was included in the Tribunal Book.
12. Mr Akers complained that the events described led to him not having accessed his CPAP machine for around seven days, despite him asserting the Northern Health medical staff and the Magistrate directed police to collect it before he was returned to Broadmeadows police station and bailed.

1. The Report commences with a summary of the events and complaints which led to the PSC investigation. It then lists the subject police officers (whose names and other personal details are redacted). Next there is a heading 'Complainant' which refers to Mr Akers, the complaint form he completed and then to how the matters came to PSC. It notes a statement was obtained from Mr Akers on 21 September 2016 (the Akers' Statement).
2. The next two pages contain the six Allegations and Findings made. Each Allegation is set out, the police officer to whom it relates is noted (redacted in the document) and the Finding is then stated. All were found to be 'Not substantiated' or 'Unfounded'.
3. Then reference is made to the criminal charges and court proceedings which were ongoing as at December 2016.
4. The following four pages concern PSC's evaluation of the evidence. It sets out Mr Akers' statement in respect of each event or issue which gave rise to a complaint and then the police officer's versions of the event or issue. At the end of each section, there is a statement saying the complaint was not substantiated or was unfounded with reference to the available evidence.
5. Page 10 of the Report contains analysis under headings:
   • Human rights;
   • Supervision;
   • Performance management; and
   • Peripheral issues/organisational learnings.
6. As indicated by Inspector Matters' evidence, those were standard headings in PSC investigation reports and required the author to make an assessment of the material and make findings or recommendations as appropriate.
7. The final page of the Report contained the author's recommendations. Given all six Allegations were found to be not substantiated or unfounded, unsurprisingly, the recommendation was that no further action be taken (other than procedural steps which included giving notice of the outcomes to Mr Akers).

The Allegations the subject of the PSC investigation

1. The allegations (including the verbatim Proposed Changes in brackets and italics) were as follows:

At Sunbury on 03 April 2016, police used excessive force and aggravated an injury to Mr AKERS' back when he was placed on his back in the police van and then did not provide assistance when he had breathing difficulties in the van. (misleading as police did not view the medical reports and have refused to give the Police statements)

At Sunbury on 03 April 2016, police used excessive force and aggravated an injury to Mr AKERS' back when he was placed on his back in the police van and then did not provide assistance when he had breathing difficulties in the van. (misleading as police did not view the medical reports and have refused to give the Police statements)

At Broadmeadows on 03 April 2016, police aggravated an injury to Mr AKERS' toes by unnecessarily removing his shoes and to his back by removing his belt at the police station. (misleading as akers did/does not have an injury between his tors, akers has a disease and/or funglas)

At Sunbury on 04 April 2016, police facilitated Mr AKERS being interviewed by the RSPCA when he was not in fit condition due to not having access to his C Pact machine for two days prior to the interview. (medical evidence, by the Alfred Hospital, [doctors' names], footscray Hospital, sunshine hospital and even Northern Health hospital how attended to akers on the 4 April 2016 gave Police a letter of instruction that Akers would be alright, if akers had use of a CACP machine/note: Akers had a pace maker install due to his heart beat!)

At Sunbury on 04 April 2016, police facilitated Mr AKERS' collection of personal belongings from 50 Batey Court Bulla. He was not allowed to shower while at premises. This aggravated his skin condition. ( misleading, in=complete,in-actuate as the skin condition is a condition that kills! Police refused to let Akers clean himself after walking around the cells!)

On 13 May 2016, Senior Constable Sandra MASLEN perjured herself in a statement made for the criminal brief in relation to the offences of Criminal Damage and Aggravated Cruelty. (misleading, as S/c Masen statement is in the belief)

1. The Proposed Changes contained many entries Mr Akers sought to have added to the Report through his original application and as further described in his later submissions. The copy of the Report at Attachment A shows Mr Akers' Proposed Changes which are highlighted in green. I have numbered each Proposed Change to aid my analysis (in red). The other notations on Attachment A were on the version of the document provided to the Tribunal and have been disregarded.
2. The Proposed Changes are often more in the nature of comments and do not address personal facts. While that kind of commentary is not within the bounds of section 39 of the FOI Act, given Mr Akers is a self-represented litigant, I have not summarily dismissed those parts of Mr Akers' application, instead I have assessed each entry as presented by him.
3. In Mr Akers' later submissions, he raised concerns about the accuracy or otherwise of the redacted police statements he had received under a separate FOI Act application. As those concerns were not part of the original application to Victoria Police, I cannot consider them.
4. It is convenient to make some broad comments about my approach to the application for the Proposed Changes to be made now.
5. First, as is apparent, the purpose of section 39 is to allow for changes to be made to documents which concern personal information. While I have given that term a broad meaning when considering the Proposed Changes, I have distinguished between what might be regarded as objective facts and the perceptions and opinions Mr Akers and the police officers had about what was happening. Differences of opinion or recall are not a sufficient basis to require a change to be made under section 39 of the FOI Act.
6. Second, while the Report seems to intend to objectively describe what Mr Akers and the police officers said in respect of the events and allegations they are presented as a summary rather than direct quotes. It is inevitable that they include some level of opinion or interpretation if presented in summary form. It is also likely that Mr Akers will disagree with some of what the police officers said in their statements. Unless there is a material and objectively identifiable error in the way the information was expressed or summarised, change is not required due to the choice to summarise rather than quote or because Mr Akers disagreed with what was said.
7. Third, the task of the author was to express opinions and make findings on the allegations. That task necessarily involves the author assessing the information. It is implicit in the Report itself and consistent with the purpose of a PSC investigation that the ultimate findings and recommendations will be those of the author. Accordingly, it is possible that those findings and recommendations might be different to what Mr Akers or another investigator would have concluded. The fact that Mr Aker's disagrees with the assessment and findings is not a basis to conclude that changes are to be made under section 39 of the FOI Act.
8. I agreed with Victoria Police's submission that it was not for me to re-investigate the events, particularly when there was a dispute about the facts. Nor was it for me to re-consider the method of investigation and manner of report writing. The fact someone else might have taken a different approach to the task or reached different views, does not demonstrate the document requires correction or amendment under section 39 of the FOI Act. As a consequence, even if I agreed with Mr Aker's comments about the importance of a fair and proper investigation of complaints ([42] of his witness statement and as further specified in his further submissions dated 18 November 2022), that is not the task before me.
9. Fourth, it is not appropriate to undertake the assessment of the Report under section 39 by having regard to events or other information which post-date the writing of the Report. It is a point in time document written in December 2016 and so should not be assessed with the benefit of hindsight, other developments or more information, such as subsequent medical reports.
10. In the Akers' Statement, Mr Akers referred to his past medical conditions and complained that:
    • He suffered injuries to his shoulders and back due to the manner in which he was which handcuffed and put into the police divisional van;
    • A skin condition on his feet was aggravated when his shoes were removed and so he walked in the cell in bare feet and because, contrary to promises that had been made, he was not allowed to shower when he returned to his home with police on 4 April 2016;
    • He required access to a CPAP machine due to his Obstructive Sleep Apnoea diagnosis and, contrary to an instruction he says was given by the Northern Hospital, the police officers did not collect his CPAP machine after he left that Hospital and returned to the Broadmeadows police station in the early afternoon on 4 April 2016;
    • He had an elevated heart rate on 3 and/or 4 April 2016; and
    • Because Victoria Police has information about his medical conditions in its files, the police officers were or ought to have been aware of his medical conditions and needs.
11. In order to analyse the Proposed Changes which relate to medical information or other matters, I have created Attachment B to these Reasons which is a list of the various medical documents Mr Akers provided in date order (Medical Documents). I have looked at each and in particular at those close in time to 3 and 4 April 2016.
12. I have proceeded on the basis that, prior to early April 2016, Mr Akers had the medical conditions referred to in the Medical Documents. Mr Akers' history included orthopaedic surgery to his hips and shoulders. He had heart related conditions and had been diagnosed with Obstructive Sleep Apnoea. He used a CPAP machine to manage the latter condition. He had a pacemaker inserted in March 2019.
13. I accept that, as a result of previous interactions with Mr Akers, at those points in time, individual police officers may have been told about his health conditions including mental health challenges. I accept that organisationally, Victoria Police had access to information about Mr Akers' medical conditions.
14. I now turn to the Proposed Changes which I have grouped have by subject matter and referred to using the numbers I allocated to each Proposed Change in Attachment A.

Proposed Changes: injuries caused or exacerbated - items 1, 2, 4, 5, 8, 9, 12, 13, 14, 15, 16, 23, 24, 36, 42, 46, 50 and 58

1. Mr Akers seeks a change to items 1 and 36 on the basis that he says police officers broke a ligament in his right shoulder. The Investigator concluded that Mr Akers had not presented evidence of injuries sustained to support his version of events (item 58). Mr Akers also complained about being pushed onto his back when being placed in the divisional van (item 42).
2. While I accept Mr Akers had significant issues with his shoulders and back before the events of 3 April 2016 and, even if I assume he had further issues after that time, there is nothing in the medical material that demonstrates specific injuries were caused by Victoria Police on 3 April 2016.
3. I noted that on 2 November 2017, A/Professor U Boffa undertook an independent medical assessment of Mr Akers in the context of Mr Akers' sentencing. There was no material in that report showing new injuries which had arose in April 2016. I make that comment but also note it was not absolutely clear that the report was available to the Investigator.
4. What was apparent was that the Investigator reviewed the medical reports referred to in his discussion of the evidence relevant to Allegation 1 (items 23 and 24) and, on my review, included a fair summary of their contents. The Investigator is not to be treated as a medical specialist or as if he had imputed knowledge of all of Mr Akers' past medical history, including as to his shoulders and back.
5. Mr Akers also sought changes to, in broad terms, reflect the fact that he had a skin condition on his feet which he said was exacerbated by his treatment by police (items 4, 5, 9, 14, 16 and 46).
6. In the Akers' Statement, Mr Akers said that he did not tell the police officers about his conditions (including his skin condition) because he was not mentally well at the time. It follows that they would not have been on notice of the impact of him wearing the same socks for three days (as noted in his Akers' Statement) or of the impact of walking on a cell floor in bare feet. Given that, Proposed Changes which would suggest knowledge of the skin condition on the part of the police officers are outside section 39 of the FOI Act.
7. Also in the Akers' Statement, Mr Akers stated that he had issues with there being no flesh between his toes. Despite that, the Proposed Change for item 4 seems to suggest he had flesh between his toes showing and also evidence of discharge. He also seeks a change to refer to how long after the events in early April 2016 he recovered from the condition (item 5). He quibbles with the Investigator's description of the skin condition as an 'injury' (item 14). In item 16 his Proposed Change is to refer to the skin condition as something that 'kills'.
8. There is no indication the police officers or the Investigator had medical evidence about those matters and so, in the circumstances, the Proposed Changes sought do not meet the requirements of section 39 of the FOI Act.
9. Mr Akers' Proposed Changes also referred to issues with his heart rate (items 2, 5, 8, 15, 50). While some of the Medical Documents concerned ECG tests and others referred to Mr Akers' pacemaker, there was no indication the police officers were alerted to his heart condition, separate from his chest pain and the breathing difficulties which led to an Ambulance being called.
10. As I understood it, the blood tests and ECG performed on 4 April 2016 at the Northern Hospital checked for that condition. As best I could understand it, the test results were normal and did not show recent myocardial damage (although there was reference to possible delayed signs of such an event). There is no basis to conclude the Report ought to be changed to include reference to Mr Akers' heart rate under section 39 of the FOI Act.
11. I was satisfied that the Investigator had fairly summarised the medical reports referred to in items 23 and 24 and so had read those (contrary to Mr Akers' view). I also noted the Investigator recounted statements Mr Akers made to various police officers. Accordingly, the Proposed Changes in respect of items 12 and 13 have not been established as being required under section 39 of the FOI Act.
12. It is convenient to deal with another aspect of items 23 and 24 now.
13. Mr Akers seemed to take issue with the Investigator's use of the word 'somewhat' when referring to the relevance of the medical reports (item 23). I give no weight to that application under section 39 of the FOI Act where the summary is fair and where it is also apparent the medical reports mentioned were only partly relevant to the PSC investigation.
14. Mr Akers says the summary of the report addressed to Lander and Rogers was misleading because it was prepared for workcover and the Medical Panel (item 24). Whether that is correct or not, that does not change the fact that the Investigator considered it during the investigation and included a fair description of its contents in the Report.
15. Mr Akers later complained that a full list of the Medical Documents he supplied was not contained in the Report. That goes to the manner of the investigation and the way the Investigator wrote the Report, rather than to section 39 of the FOI Act.

Proposed Changes: knowledge of existing mental health issues: items 19, 22 and 48

1. Proposed Changes items 19 and 22 concern Mr Akers' belief that one of the police officers in attendance on 3 April 2016 was aware of his then mental distress. Mr Akers alleged that, at the time of his arrest on 3 April 2016, a female police officer was present who had also attended an earlier incident in January 2016. He stated that he had told that female police officer about his range of physical and mental health problems. He therefore expected her to know about them when she attended again on 3 April 2016.
2. At one point in the Report Mr Akers was said to have told the Investigator that he could not recall the female officer's name (item 19). His Proposed Changes included an assertion that sentence was misleading as the female officer had been present in January 2016 and knew about his health problems. Given the Akers' Statement says he could not recall the officer's name, there is nothing about the relevant content in that part of the Report that requires change under section 39 of the FOI Act.
3. Mr Akers' Proposed Change items 22 and 48 are related to that part of the Akers' Statement where he said he did not tell the police officers about his medical conditions but that they should have known due to police files.
4. Whether or not the female police officer had been told about Mr Akers' medical conditions in January 2016 and, even assuming she understood the significance of the information and recalled it in April 2016, the Proposed Changes are not required under section 39 of the FOI Act. That is because the relevant part of the Report recounted what Mr Akers told the Investigating officer. If he did not include the above information at the time he was interviewed, that was his omission rather than of the Investigator.
5. Similarly, it is not appropriate to impute knowledge of Mr Akers' mental health history to other police officers in attendance. In that context I noted that Mr Akers placed some reliance on a report prepared by Dr M Triglia from Forensicare in February 2018. As that report post-dated the Report and was directed towards sentencing, it is not a basis on which any change is required under section 39 of the FOI Act.

Proposed Changes: what was said at the time of the arrest: items 25, 26, 27, 28, 29, 30, 31 and 32

1. The parts of the Report associated with the above list of Proposed Changes concern what was said by Mr Akers and police officers at the time of the arrest.
2. Mr Akers' Proposed Changes include adding words to represent what he recalls was said by police officers (item 3).
3. Mr Akers disputes suggestions he was on the telephone speaking to another police officer in an argumentative manner when police arrived (item 25) and also that he spoke in a derogatory manner (item 26). As I understood it, Mr Akers says he was simply explaining to the police officer on the phone that he had an appointment with police in 12 hours and he preferred to speak with police then.
4. It is impossible for me to determine whether the manner in which Mr Akers was speaking may fairly described as argumentative or derogatory. For the purposes of section 39 of the FOI Act, a difference in opinion about that (as evidenced by Mr Akers' version and that contained in the relevant police officer's statement) does not warrant a change.
5. Mr Akers also raised concerns about the reference to 'his property' and the dead horses located on it in the same paragraph where he sought the item 26 change. He said he did not own the property in question and so it was inaccurate. Given there was no doubt he had control of the property and the horses on it at the relevant time, I am not satisfied the terminology is misleading and rather consider it should be read widely.
6. Proposed Changes 27 to 30 concern whether Mr Akers was willing to go with the police officers and whether he said words to the effect that he was sick of being harassed and that the police should just 'shoot him'. In a similar category is Mr Akers' assertion that no police officer asked him whether she could say anything to change his mind about accompanying them to a police station (item 31). He also disputes the police officer's version which said he continued to argue that he did not want to be arrested (item 32).
7. Given the nature of what was being said and the likely distress that accompanied those moments, it seems inherently unlikely that any of those present would have a perfect memory of every word said and the order in which those words were said. I am not persuaded any change is required to be made under section 39 of the FOI Act.
8. Mr Akers also seeks a change to a sentence which refers to the police officers spending around an hour trying to get him to agree to go with them. His Proposed Change asserts that they said 'Want to go home tonight'. Given that part of the Report is partly based on the Akers' Statement and is consistent with the other statements, I see no basis for making any change under section 39 of the FOI Act.

Proposed Changes: flexibility, physical capacity and the arrest: items 20, 21, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43 and 44

1. Mr Akers sought changes concerning the descriptions of his arrest and how he got into the divisional van. The Proposed Changes made assertions about his limited physical capacity and, in some cases, relied on medical information Mr Akers suggested was known to Victoria Police at the time. He also disputed his own and the police officer's version of events as summarised in the Report.
2. Even if I accepted that the Medical Documents supported a conclusion that Mr Akers had limited physical capacity, that would not warrant section 39 changes. That is in part because, the description of how he was handled comes from the Akers' Statement. Despite seeking a change to the words (item 20), Mr Akers stated then that he was 'coaxed' towards the divisional van. Other relevant parts of that Statement refer to his hands being pulled from his pockets and his arms being pushed up and behind his back. Mr Akers describes being forced onto the concrete and then being lifted in the divisional van. Proposed Changes 20 and 21 take issue with his own description of events.
3. Proposed Changes 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 and 44 take issue with the way in which the police officers described the events.
4. While noting I only had access to the same redacted version of the police officers' statements, doing the best I can, I have concluded that the summaries of all the statements, including the Akers' Statement, were fair. In those circumstances there is no basis for section 39 changes sought by Mr Akers being made to the differing versions of events.
5. As it is not for me to re-investigate what occurred on 3 April 2016 and substitute my own views about the proper outcomes of the PSC investigation, there is no basis for section 39 changes being made to the differing versions of events.

Proposed Changes: transport to Broadmeadows police station: item 3

1. The Proposed Change in item 3 is to record that, on 3 April 2016, the police officers were told to get to the Broadmeadows police station 'ASAP'.
2. That comment is not recorded in the Akers' Statement and I could not find a reference to it in any of the police officers' statements to which I had access. Even assuming it was said, there is nothing to show it was made known to the Investigator so he could have included it in the Report.
3. In the circumstances, no change is required under section 39 of the FOI Act.

Proposed Changes: attending hospital and the medical assessment: items 49 and 52

1. Mr Akers' Proposed Change item 49 concerned the examination undertaken by the FMO. The Report states the FMO made no mention of injuries or of a complaint being made by Mr Akers about his treatment. Mr Akers' suggested change said that was misleading because the 'psychic' (presumably a reference to the FMO) said to the police officers that they had 'better get him out ASAP and keep him from others'.
2. I am unable to discern what that sentence was intended to mean or find any basis for it to be added to the Report.
3. Item 52 concerns a disposal interview with Mr Akers conducted on 4 April 2016 after he had been returned from the Northern Hospital. He was asked a series of questions about his health conditions. He was asked whether he had initially refused to go to the Hospital and he said 'Yes'. In the Akers' Statement, Mr Akers explained that he had refused to go as he wanted to go home and feed the horses. He said when he realised that would not happen, he changed his mind about going to hospital. He seems to seek that detail to be added to the account of the disposal interview quoted in the Report. Given Mr Akers agreed that, at the time, he did not tell police that was the reasons for him not going to hospital at first, there is no basis to add the change at item 52.

1. When Mr Akers arrived at the Broadmeadows police station under arrest, his shoes were removed as was as his belt. The Investigator summarised Mr Akers' understanding of why that process was followed. Mr Akers' Proposed Change item 45 says 'misleading Akers can't remember anywhere a hanging could happen where he was'. What Mr Akers can now recall is not relevant to the application of section 39 of the FOI Act. The summary is consistent with the relevant part of the Akers' Statement.

Proposed Changes: the RSPCA's role: items 7 and 54

1. Mr Akers complained that, the police officers only agreed to allow him to return to his home to collect his medication and CPAP machine if he 'spoke' with RSPCA officers who had been involved in the events leading to the criminal changes and who were present at the Broadmeadows' police station (item 7). He also complained that he had been interviewed by the RSPCA when he was not fit to participate due to his lack of access to his CPAP machine for two days (Allegation 6).
2. Mr Akers' Proposed Change item 54 concerns whether the RSPCA conducted a 'full' interview with him to which a police officer consented and whether he was interviewed for offences.
3. The relevant police officer's version of events was that Mr Akers was taken to an interview room so that the notices could be served while being recorded. The police officer stated that Mr Akers agreed to that arrangement. The Investigator found that Mr Akers' complaint was not substantiated.
4. Mr Akers supplied a copy of the transcript of the discussion with the RSPCA officer (the Transcript). First, it confirms that Mr Akers was told that what was happening in the interview room was being recorded. Mr Akers was told that he was not under arrest. It also shows that Mr Akers was very concerned to get home but was told he needed to be escorted by police. The police officer present told him they would ensure he did get home within his curfew (imposed as part of his bail conditions).
5. The Transcript shows that the RSPCA officer served the notices and provided an explanation (the Transcript). There was a discussion with Mr Akers about aspects of what had led to his arrest and what would happen next. It is fair to say there was a reasonably lengthy discussion about those matters and the notices, with the RSPCA officer answering Mr Akers' questions as well as explaining processes. The police officer also participated in the discussion at times. At times the RSPCA officer asked Mr Akers questions which followed on from his own statements or queries. Those included questions about who was helping Mr Akers with the horses and how he was feeding and monitoring them.
6. It was not clear to me whether the Investigator had access to the Transcript when the Report was being written. While it appears Mr Akers sought access to it through an FOI Act request in August 2020[8] and he received it sometime later, it was not apparent when the Transcript had been prepared. If the Investigator did not have the Transcript or review the audio, the changes sought would post-date the time of the preparation of the Report,
7. In any event, it is apparent from the Report that the Investigator recorded that the police officer arranged for the service of the notices in the interview room and the recording. Whether what took place amounted to a 'full' interview is debateable however there is no question no caution was given and there was no direct reference to criminal charges.
8. Given the way in which the Report is written and the fact that the conclusions were a matter for the Investigator, I am not satisfied the changes Mr Akers sought are required for the purposes of completeness and accuracy under section 39 of the FOI Act. I do not consider the content of the relevant part of the Report to be misleading either.

Proposed Changes: the criminal charges: items 18, 59 and 61

1. As is apparent from Attachment A, the Report referred to Mr Akers being charged with one count of criminal damage and 91 charges of animal cruelty on 4 April 2016. The Report also recorded that, at the time of writing, those matters were still before the courts.
2. Mr Akers disputed the accuracy of the above description of the charges and also referred to offers exchanged between the prosecution and his legal representatives and other discussions about the charges when they were before the County Court (see also item 61).
3. At the hearing, Victoria Police was able to show the charges laid against Mr Akers on 4 April 2016. The copies of the charges provided to the Tribunal and Mr Akers later that day confirmed that there were 91 charges of animal cruelty and one charge of 'Criminal Damage (Intent Damage/Destroy)'.
4. The reference to that latter charge as 'criminal damage' in the Report is fair and not inaccurate or misleading as a description of the actual charges laid on 4 April 2016.
5. Irrespective of later plea arrangements or changes to the charges pursued at trial, the content of the relevant part of the Report is accurate given it was referring to the status of the charges laid in April 2016. Accordingly, no changes are required to items 18 or 61 under section 39 of the FOI Act.
6. Mr Akers objected to a sentence under the heading 'Human Rights' which said he was arrested for criminal damage in relation to horses he was managing for an unknown person (item 59). As I understood it, Mr Akers said that entry was misleading, incomplete and inaccurate because he was the only person charged by Victoria Police or the RSPCA. In my view the sentence is accurate as it concerns only the criminal action against Mr Akers. Whether anyone else was or should have been charged is not relevant to the purpose for which the Report was written, namely to consider Mr Akers' complaints about his treatment by Victoria Police on 3 and 4 April 2016.
7. Mr Akers also indicated that the statement that he refused to reveal the identity of the unknown person mentioned above was 'misleading'. It is not apparent what he meant by that as it was not mentioned in his complaint.
8. Having reviewed the Transcript, I noted that Mr Akers was asked about who owned the horses and he responded with no comment (as he did for much of the interview on legal advice). In my view it is a fair reading of those circumstances to say Mr Akers would not divulge the identity of the horse owners. No change is required under section 39 of the FOI Act.
9. In his further submissions, Mr Akers expressed wider concerns about whether the police officers complied with its human rights obligations. That is not a matter relevant to the section 39 application before me.

Proposed Changes: collection of the CPAP machine: items 6, 15, 51, 53 and 62

1. Mr Akers included Proposed Changes in a number of places in the Report related to his complaint that the police officers had been given a letter written by a treater at the Northern Hospital that he would be 'alright' if he had his CPAP machine (items 15, 51, 53 and 62). He also referred to a Magistrate telling police to take him home to collect the machine (items 6 and 15).
2. I was unable to locate a copy of the letter Mr Akers said was given to the police officers with him at the Northern Hospital in the early hours of 4 April 2016. In any event, there seems to be no dispute that Mr Akers' medical conditions required him to make use of a CPAP machine and that his bail conditions allowed for him to return to his home to collect the machine. That is what occurred in the evening of 4 April 2016 when he was escorted home to collect the machine and his medications.
3. I did not understand there to be any dispute that the Magistrate made provision for Mr Akers to access his home to collect the CPAP machine (and perhaps his medication).
4. Proposed Change item 53 related to the record of the disposal interview mentioned earlier and the questions referring to his initial refusal to go to the Hospital in an Ambulance. As shown in Attachment 1, Mr Akers was asked about his assertion that his medical welfare was not considered. His answer at the time related to his inability to recall the name of his heart medication and the consequence that the treating doctor did not give him any. Proposed Change item 53 claims that sentence in the Report is misleading, inaccurate and incomplete because Victoria Police had not given him his medication and CPAP machine and the police officers had been told by the Northern Hospital that he needed the CPAP machine.
5. The Proposed Change to item 62 is similar to that sought in item 53 but concerns the Magistrate's bail conditions. The Proposed Change is not required in circumstances where the relevant part of the Report quotes from the interview transcript and the words Mr Akers has placed in issue are his own. If he did not mention the additional concerns at the time, that is a matter for him.
6. The Investigator concluded that Mr Akers' complaint about the issue (Allegation 4) was not substantiated. As it is not for me to reconsider the correctness of that conclusion, there is no basis for amendments as sought to items 6, 15, 51, 53 and 62.

Proposed Changes: request to shower: items 9, 16, 55 and 62

1. I mentioned above that Mr Akers complained that, despite being promised he could shower at home when collecting his medication and CPAP machine, police officers did not allow him to do so. The need for a shower was connected to the skin condition on his feet (see items 9 and 15). He complained the police officers had spent time walking him around his property instead of allowing him to clean himself and his feet in particular (item 55).
2. Even if I assume that promise was made (which is not entirely clear from the material before me), no change to the above items is required by section 39 of the FOI Act. That is because the Report describes Mr Akers' complaint and considers it under Allegation 5. Whether I consider the police officers' response to the request and failure to allow Mr Akers to shower was appropriate is not the point of an application such as this given the nature and purpose of the Report.

Proposed Changes: surveillance: items 60 and 64

1. Mr Akers has alleged that him, his property and his livestock had been under surveillance by both Victoria Police and the RSPCA from around October 2015. Items 60 and 64 concern that, along with a suggestion that, as a result, Victoria Police was aware of his problems (presumably including about the condition of the horses).
2. Those matters were not mentioned in the Akers' Statement and were not the subject of any of the Allegations before the Investigator.
3. Mr Akers' proposed item 64 comes under the heading 'Performance Management' which addresses any identified performance issues arising from the PSC investigation. Given the Investigator's findings, it is unsurprising that he also concluded that there were no performance issues requiring management.
4. In all of the above circumstances, the references to surveillance and knowledge of Mr Akers' problems were new in the context of the Report and so there is no requirement under section 39 for the entry to be added.

1. Proposed Change item 47 concerned Mr Akers' dog. In his witness statement in this proceeding, Mr Akers explained that, when he was arrested, the dog was in his car and all of the doors were open. He sought a change to the Report to add the statement in item 47 to the passage immediately after the summary of the custody officer's discussion with him about his claimed injuries.
2. The location of Mr Akers' dog was not mentioned in the Akers' Statement or elsewhere. Even if the events as described in item 47 were correct, given it was not a matter made known to the Investigator at the time and was not the subject of the Allegations, there is no basis for the addition be made under section 39 of the FOI Act.

1. Through item 55, Mr Akers alleges that, when he was escorted back to his house, police ordered him to feed the cats which he considered to be a contravention of his bail conditions. That was not a matter raised in the Akers' Statement and does not appear in the parts of the police officers' statements to which I had access. It was not the subject of the Allegations before the Investigator.
2. Whether what Mr Akers says was true and even if it was inappropriate, there is no basis for it to be added to the Report under section 39 of the FOI Act.

Proposed Changes: missing attachments: items 11, 17, 56 and 57

1. As I understood it, Mr Akers' complaint in item 11 was that the Akers' Statement was not attached to the Report.
2. Victoria Police submitted the relevant part of the Report merely summarised the information and documents Mr Akers had submitted. Victoria Police also contended that, simply because a copy of the Akers' Statement was not attached to the Report, does not make the Report inaccurate, incomplete, out of date, or misleading.
3. I agree and note there is no suggestion the way the Akers' Statement and other documents have been referred to or identified contain any error.
4. The Proposed Change to Allegation 6 (item 17 and also 56) was not clear to me. On the one hand it may have referred to the statement not being attached to the Report or the brief or on the other it may have concerned whether or not the police officer was guilty of perjury.
5. If the former, the same analysis as set out in respect of item 11 applies.
6. If the latter, my task under section 39 of the FOI Act is not to investigate whether there was perjury or to substitute my views for that of the Investigator.
7. The Proposed Change in item 57 concerned the police statement not being attached to the Report. For the reasons given in respect of item 11, that does not support the making of an order under section 39 of the FOI Act.

1. The section of the Report which summarises the police officer's version of events in respect of Allegation 5 refers to the relevant property as being number 52 when in fact it is number 50 (as is apparent throughout the Report and related documents).
2. That is a clear typographical error which falls within section 39 of the FOI Act and so I have ordered that it be corrected.

Proposed Changes: supervision, peripheral issues and recommendations: items 63 and 65

1. Mr Akers has suggested changes to parts of the discussion under the above headings. As explained earlier, the headings are standard for PSC reports and concern internal Victoria Police matters arising from the PSC investigation rather than Mr Akers' views of what was said or what the Investigator concluded.
2. As to the comments under the heading 'Supervision' (item 63), they seem to raise more complaints about the events which were beyond the terms of the Allegations.
3. Item 65 seems to suggest that the outcomes of the charges ought to be taken into account in the Report. Given the point in time nature of the complaints being considered through the PSC investigation, there was no need for a wider consideration of outcomes to be included.
4. There is no basis for a change to be made under section 39 of the FOI Act.

1. At the end of the Report Mr Akers made what can only be described as a comment (item 66). It is not within the purpose of section 39 of the FOI Act and requires no further consideration.

1. I was unable to understand what Mr Akers sought in respect of item 10 and so have not considered it further.

ATTACHMENT B - LIST OF MEDICAL REPORTS/NOTES PRODUCED TO THE TRIBUNAL

Dr C Baker - independent medical examination re workcover claim

Professor S Davis - independent medical examination re workcover claim

Workcover Medical Panel Opinion and Reasons (reference M110/2314)

Mr M Armstrong - re surgery to left shoulder 15/8/2011

Mr M Armstrong - re surgery to right shoulder 12/10/2011

Mr M Armstrong - re recovery from surgery to shoulders

Mr M Shannon - letter addressed to Allianz (fair summary)

Mr M Shannon - letter addressed to Lander & Rogers (fair summary)

Workcover Medical Panel Opinion and Reasons (reference M111/0644)

Mr M Armstrong - re recovery from surgery to shoulders

Mr M Armstrong - re recovery from surgery to shoulders

Mr M Armstrong - re recovery from surgery to shoulders

Mr M Armstrong - print out of history for period 31/10/2007 to 6/12/2012 and letters for the period 31/10/2007 to 6/12/2012

Alfred Hospital - appointment letter for lung function test

Alfred Hospital - Professor T Williams - medical notes

Dr J Prasad - review re Obstructive Sleep Apnoea and CPAP machine (and respiratory function report)

Professor T Williams - review letter re Obstructive Sleep Apnoea and CPAP machine

Alfred Hospital - Emergency Records Continuation Sheet, medical records and test results

Dr E Denton - review letter re Obstructive Sleep Apnoea and CPAP machine

Sunshine Hospital - inpatient admission and progress notes

A/Professor U Boffa - independent medical assessment re sentencing

Dr M Triglia, Forensicare - psychiatric assessment for the County Court in context of sentencing

Sunshine Hospital - ECG results and review of pacemaker

Dr S Karnam - re review for heart condition, pacemaker insertion in March 2019 and use of CPAP machine

Workcover Medical Panel Opinion and Reasons (reference M119/2679)

Workcover Medical Panel Opinion and Reasons (reference M119/2717)

Dr J Prasad - re Obstructive Sleep Apnoea and CPAP machine

[1] Roberts v Victoria Police [2004] VCAT 1660 [8].

[2] Setterfield v Chisholm Institute of Technology (No 2) (1986) 1 VAR 202 [208] - [209].

[3] G v Health Commission of Victoria Unreported, County Court of Victoria, Rendit J, 13 September 1984, pages 10 to 11.

[4] G v Health Commission of Victoria, page 10.

[5] Re Buhagiar and Victoria Police (1989) 2 VAR 530, 531-532.

[7] Email sent to the Tribunal and Victoria Police at 9:52am on 18 November 2022.