Secretary to the Department of Justice and Regulation v Bhatia
[2018] VSC 500
•4 September 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
| AT MELBOURNE COMMON LAW DIVISION JUDICIAL REVIEW AND APPEALS LIST |
S CI 2018 00532
| SECRETARY TO THE DEPARTMENT OF JUSTICE | Applicant |
| AND REGULATION | |
| v | |
| KULVINDER BHATIA | Respondent |
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| JUDGE: | Richards J |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 July 2018 |
| DATE OF JUDGMENT: | 4 September 2018 |
| CASE MAY BE CITED AS: | Secretary to the Department of Justice and Regulation v Bhatia |
| MEDIUM NEUTRAL CITATION: | [2018] VSC 500 |
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ADMINISTRATIVE LAW – Appeal – Victorian Civil and Administrative Tribunal – Secretary revoked respondent’s assessment notice under Working with Children Act 2005 –
Respondent pleaded guilty to offensive behaviour in a public place under Summary Offences
Act 1966 s 17(1)(d), arising from his presence in female public toilet – Decision of Tribunal to direct Secretary to give assessment notice to respondent – Tribunal found that respondent entered female toilet by mistake, with no ill intent – Whether Tribunal impugned finding of guilt – Whether Tribunal’s findings inconsistent with essential factual elements of offence – Elements of offence of offensive behaviour in a public place – Tribunal’s findings not inconsistent with essential factual elements of offence – Appeal
dismissed – Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148 – Working with
Children Act 2005 (Vic), ss 14(3) and 26C – Summary Offences Act 1966 (Vic), s 17(1)(d).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Horan QC with | Working with Children |
| Mr A Sim | Check Unit, Department of | |
| Justice and Regulation | ||
| For the Respondent | Ms K Bowshell | KCL Law |
| HER HONOUR: |
1 On 30 March 2017 the Secretary to the Department of Justice and Regulation revoked
an assessment notice held by Kulvinder Bhatia under the Working with Children Act
2005 (Vic) (WWC Act). The Secretary revoked Mr Bhatia’s notice because he had
been charged with two offences under the Summary Offences Act 1966 (Vic)
(Summary Offences Act) – unlawful assault and behaving in an indecent manner in
a public place. Both charges arose from Mr Bhatia’s presence in a female public
toilet in Bendigo on the night of 22 November 2016.
2 Mr Bhatia applied to the Victorian Civil and Administrative Tribunal for review of
the Secretary’s decision. His application was heard on 6 November 2017 by Deputy
President Lambrick of the Tribunal. At the end of the hearing the Deputy President
allowed the application and directed the Secretary to give an assessment notice to
Mr Bhatia.
3 The Secretary seeks leave to appeal from that order to this Court, under s 148 of the
Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). An appeal
under s 148 may only be brought on a question of law. The Secretary also seeks an
extension of time, under s 148(5) of the VCAT Act. In this case, the applications for
an extension of time and for leave to appeal and the proposed appeal were all
argued together.
4 For the reasons that follow I have decided to extend time to apply for leave to
appeal, to grant leave to appeal in relation to the first question of law identified by
the Secretary, but to dismiss the appeal.
Working with Children Act 2005
5 The WWC Act was enacted for the main purpose of assisting in protecting children
from sexual or physical harm by ensuring that people who work with, or care for,
them are subject to a screening process.[1] It is a criminal offence to engage in child-
related work[2] without a current assessment notice under the WWC Act.[3][1] WWC Act, s 1(1).
[2] The expression ‘child-related work’ is defined in s 9 of the WWC Act.
[3] WWC Act, s 33(1).
6 Section 1A emphasises the protective purpose of the legislation:
Protection of children to be paramount
When the Secretary or VCAT makes a decision or takes an action under this Act, the protection of children from sexual and physical harm must be the paramount consideration.
7 A person may apply to the Secretary for a working with children check to be carried
out and an assessment notice to be given to him or her on completion of that check.[4]
[4] WWC Act, s 10(1).
If granted, an assessment notice must state that the person in respect of whom it was
issued has passed a working with children check.[5] An assessment notice remains in
[5] WWC Act, s 17(2)(a).
force for 5 years, unless it is revoked or surrendered earlier.[6]
[6] WWC Act, s 19(1).
8 Part 2, Division 5 of the WWC Act deals with Re-assessment. Section 21(1) of the
WWC Act requires the Secretary to re-assess a person’s eligibility to have an
assessment notice in certain circumstances. These include being notified by the
Chief Commissioner of Police under s 41 of a charge.[7] Section 41(1) obliges the Chief
[7] WWC Act, s 21(1)(c).
Commissioner of Police to notify the Secretary as soon as practicable that a person to
whom an assessment notice has been given has been charged with a category A
offence[8] or a category B offence[9] or any other offence of a type that the Secretary has
[8] WWC Act, s 3(1) defines ‘category A offence’ to mean an offence specified in Schedule 1.
[9] WWC Act, s 3(1) defines ‘category B offence’ to mean an offence specified in Schedule 2.
requested be notified. The Secretary must also conduct a re-assessment if notified by
any State law enforcement agency of a charge.[10]
[10] WWC Act, s 21(1)(d).
9 A re-assessment by the Secretary falls into one of three categories: A, B or C. In this
case, Mr Bhatia had been charged with an offence other than a category A offence or
category B offence and so the re-assessment of Mr Bhatia’s eligibility was a category
C re-assessment.[11]
[11] WWC Act, s 21AD(1)(c).
10 A category C re-assessment is governed by s 21AD of the WWC Act, as follows:
(2) The Secretary must determine not to revoke the assessment notice on a category C re-assessment unless—
(a) the Secretary is satisfied that the person having the assessment notice would pose an unjustifiable risk to the safety of children having regard to the factors set out in subsection (3); or (b) the Secretary is satisfied that— (i) a reasonable person would not allow his or her child to have direct contact with the holder of the assessment notice while the holder was engaged in any type of child-related work; or
(ii) the holder's engagement in any type of child-related work would pose an unjustifiable risk to the safety of children.
(3) For the purposes of subsection (2)(a), the Secretary must have regard to—
(a)
the nature and gravity of the conduct and its relevance to child-related work; and
(b)
the period of time since the holder of the assessment notice engaged, or allegedly engaged, in the conduct; and
(c)
in the case of an offence, whether a finding of guilt or a conviction was recorded for it or a charge for it is still pending; and
(d) in the case of an offence, the sentence imposed for it; and (e)
the ages of the holder and of any victim at the time the holder engaged, or allegedly engaged, in the conduct; and
(f)
whether or not the conduct has been decriminalised or has ceased to be subject to disciplinary charges since the holder engaged, or allegedly engaged, in it; and
(g)
the holder's behaviour since he or she engaged, or allegedly engaged, in the conduct; and
(h)
the likelihood of future threat to a child caused by the holder; and
(i)
any information given by the holder in, or in relation to, the re- assessment; and
(j)
any other matter that the Secretary considers relevant to the re- assessment.
11 Under s 21C(1), the Secretary may revoke an assessment notice following a re-
assessment of the holder’s eligibility to have the notice. If the Secretary proposes to
do so, before making a final decision the Secretary must inform the holder of the
proposal to revoke the assessment notice, invite a submission about the holder’s
eligibility, and give an interim negative notice to the holder.[12] If the Secretary
[12] WWC Act, s 21AE(1).
decides to revoke an assessment notice, the Secretary must give a negative notice to
the former holder of the assessment notice,[13] together with a written notice stating
[13] WWC Act, s 21C(2).
the Secretary’s reasons for deciding to revoke the notice and informing the person of
the right to have the decision reviewed by the Tribunal.[14]
[14] WWC Act, s 21C(3).
12 A person who has been given a negative notice because of a decision of the Secretary
under s 21C(1) to revoke an assessment notice following a category C reassessment
may apply to the Tribunal for review of the decision.[15] In a review of a decision in
[15] WWC Act, s 26(1)(d).
relation to a category C re-assessment, the Tribunal must determine whether in the
particular circumstances it would be appropriate to refuse to give an assessment
notice, having regard to any matters to which the Secretary must have regard under
s 14(3).[16] Those matters are:
[16] WWC Act, s 26C(1).
(a)
the nature and gravity of the conduct and its relevance to child-related work;
(b)
the period of time since the applicant engaged, or allegedly engaged, in the conduct;
(c)
in the case of an offence, whether a finding of guilt or a conviction was recorded for it or a charge for it is still pending;
(d) in the case of an offence, the sentence imposed for it; (e)
the ages of the applicant and of any victim at the time the applicant engaged, or allegedly engaged, in the conduct;
(f)
whether or not the conduct has been decriminalised or has ceased to be subject to disciplinary charges since the applicant engaged, or allegedly engaged, in it;
(g)
the applicant's behaviour since he or she engaged, or allegedly engaged, in the conduct;
(h) the likelihood of future threat to a child caused by the applicant; (i) any information given by the applicant in, or in relation to, the application; and
(j) any other matter that the Secretary considers relevant to the application.
13 Section 26C(2) provides that the Tribunal must determine that it is appropriate to
refuse to give an assessment notice unless it is satisfied that:
(a) a reasonable person would allow his or her child to have direct contact with the applicant while the applicant was engaged in any type of child-related work; and (b) the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.
14 Section 26C(3) further provides that, whatever the Tribunal has determined under
ss 26C(1) and (2), it must determine that it is appropriate to refuse to give the
assessment notice unless it is satisfied that it is in the public interest to do so.
Factual background
15 Mr Bhatia held an assessment notice under the WWC Act from 21 January 2011.
Before giving him the assessment notice, the Secretary obtained a police record and
criminal history check that disclosed that Mr Bhatia had no criminal history.[17] In
[17] Affidavit of Guy Anthony Ventrice sworn 15 February 2018 (Ventrice affidavit), [5]-[6].
January 2016 the Secretary granted Mr Bhatia’s application to renew his assessment
notice.[18]
[18] Ventrice affidavit, [7].
16 On 12 January 2017 Mr Bhatia was charged with two offences under the Summary
Offences Act: one charge of unlawful assault, under s 23, and one charge of
behaving in an indecent manner in a public place, under s 17(1)(d).[19] The police brief
that accompanied the charges set out the facts alleged by the informant:[20][19] Ventrice affidavit, exhibit GAV-1, pp 76-7.
[20] Ventrice affidavit, exhibit GAV-1, p 72.
On Tuesday, 22 November 2016, the accused was spending a night in
Bendigo due to work commitments.During the evening, the accused attended a hotel in Bendigo where he consumed approximately five heavy beers before leaving the hotel.
At approximately 10:15 PM the accused walked to a toilet block which had male and female toilets clearly signed with the relevant gender. At this time, the victim in this matter, was using the toilet inside a cubicle inside the female toilet block.
The accused has then walked to the front entrance of the female toilet and was heard by the female to rattle a locked open gate positioned at the entrance of the female toilet. The woman then heard the accused walk into the toilet block and believes that the accused may have been attempting to close the locked open gate as he was making his way into the toilet.
The woman then observed the accused standing outside her cubicle staring at her through a gap in the cubicle doorway. She asked the accused what he was
doing and informed him that he needed to leave and he can’t be in there. The
accused replied “yes I can. What are you doing?”The accused continued to stand in the cubicle doorway while the woman stood up from using the toilet. The woman then pushed at the cubicle door to make a noise in an effort to scare the accused into leaving the toilet block. The accused again remained standing in the doorway causing the woman to yell at the accused telling him there was a male and the female toilet. The accused
replied saying “do you want to do something?”
The victim was fearful of the accused and began continually yelling “get out”.
The accused then began to walk backwards toward the toilet block exit while the woman was telling him to leave. As he was walking back away he asked
her “don’t you want any sexual thing?” She told the accused “no” and the
accused has then walked out of the toilet block and sat at a bus stop across the road. The woman then left the scene in her vehicle where she picked up one of her friends before returning. She observed the accused still sitting at the same bus stop. She called police who then spoke to the accused.
The police brief also set out the following ‘Statement made by accused’:[21]
[21] Ibid.
During the interview with the accused, he stated that he had about 4 to 5 beers at the hotel and stayed there for about two hours and was partially drunk. After he left the hotel he was looking for something to eat and he went
past the toilets and unfortunately went into the ladies’ toilet.
The accused further stated that he realised he was in the wrong toilet when someone told him and he apologised and walked out. The accused continued to explain that he was in the toilet not even one minute and when he left it was raining so he sat under the shade for the rain to stop.
The accused denied looking into the cubicle and he denied asking about anything sexual.
When further questioned about not leaving the toilet when told by [complainant] and entering a female toilet which was clearly signed the accused mentioned that he is a diabetic and he goes to the toilet when he sees them.
The accused also conceded that he did not end up using a toilet after he walked out of the female toilet.
18 On 19 January 2017 Victoria Police notified the Working With Children Unit of the
Department of Justice and Regulation (WWC Unit) of the charges against Mr
Bhatia.[22] This prompted the Secretary to re-assess Mr Bhatia’s eligibility to have an
[22] Ventrice affidavit, [8].
assessment notice. The nature of the offences with which he was charged required
the Secretary to conduct a category C reassessment, under s 21AD of the WWC Act.[23]
[23] Ventrice affidavit, [9].
19 On 14 February 2017 a delegate of the Secretary gave Mr Bhatia an interim negative
notice, under s 21AE, and invited him to make submissions about his eligibility to
have an assessment notice. He did so during March 2017. On 31 March 2017, the
Secretary gave Mr Bhatia a negative notice and revoked his assessment notice, and
provided a statement of reasons for the decision.[24]
[24] Ventrice affidavit, [10]-[12].
Mr Bhatia applied to the Tribunal for review of the Secretary’s decision on 5 May
2017.[25] At that time the charges were still pending. Mr Bhatia filed an affidavit with
[25] Mr Bhatia’s application was made after expiry of the 28-day time limit in s 26(4)(a) of the WWC Act.
the Tribunal, affirmed on 16 May 2017, in which he said that he was contesting the
charges. The affidavit set out his account of what happened on the night of 22
November 2016, which was consistent with his statement recorded in the police
brief.[26]
[26] Ventrice affidavit, [16] and exhibit GAV-1, pp 87-117.
Before Mr Bhatia’s application was heard by the Tribunal, the charges against him
were dealt with in the Magistrates’ Court at Bendigo. On 18 July 2017, police
withdrew the charge of unlawful assault, and amended the charge of behaving in an
indecent manner in a public place to a charge of behaving in an offensive manner in
a public place. On the same day Mr Bhatia pleaded guilty to the charge of behaving
in an offensive manner in a public place, contrary to s 17(1)(d) of the Summary
Offences Act.[27]
[27] Ventrice affidavit, [14]-[15] and exhibit GAV-1, pp 69-70.
22 The Magistrate did not record a conviction. The matter was adjourned for two years
on Mr Bhatia’s undertaking to be of good behaviour during the period of the
adjournment. In addition Mr Bhatia was ordered to pay $1,000 to the Court Fund.[28]
[28] Ibid.
The evidence before the Tribunal of what took place at the Magistrates’ Court in
Bendigo on 18 July 2017 was incomplete. The Tribunal had the police brief, a
certified extract recording the disposition of the charge to which Mr Bhatia pleaded
guilty and a certified extract recording the withdrawal of the unlawful assault
charge. Neither the recording nor a transcript of the hearing was in evidence, and
there was no evidence about the Magistrate’s sentencing remarks or his Honour’s
reasons for not recording a conviction.
24 Mr Bhatia filed a further affidavit, made on 28 September 2017, that included the
following:[29]
[29] Ventrice affidavit, [17] and exhibit GAV-1, pp 125-129.
The Charges were heard in the Magistrates’ Court on 18 July 2017. The
charge of unlawful assault was withdrawn and the charge of behaving in an indecent manner in a public place was reduced to behaving in an offensive manner in a public place. I wanted to dispute, and continue to deny, the
complainant’s allegations that I made sexual comments to her and that I
attempted to shut the entry to the toilet block. But on the advice of my barrister I pleaded to the charge of behaving in an offensive manner in a public place and was released without conviction subject to a good behaviour bond. I believe I probably frightened the complainant when I went into the
ladies’ toilet and made her upset, but I didn’t mean to. I didn’t know that I
was in the ladies’ toilet.
25 Mr Bhatia was cross-examined about what happened at the hearing. He agreed that
the summary of facts in the police brief had been read out to the Magistrate, without
amendment, and that his barrister had not taken issue with the summary.[30]
[30] Ventrice affidavit, exhibit GAV-1, pp 212-5, 223.
Deputy President Lambrick of the Tribunal heard Mr Bhatia’s application on 6
November 2017. Mr Bhatia was represented by his solicitor and the Secretary was
represented by counsel. Mr Bhatia gave evidence, adopting both of his affidavits,
and was cross-examined. A character witness also gave evidence and was cross-
examined. No witnesses were called by the Secretary. The Tribunal had written
submissions filed on behalf of Mr Bhatia and the Secretary and heard oral
submissions at the conclusion of the hearing that addressed the matters in s 14(3)
and the tests in s 26C(2) and s 26C(3) of the WWC Act.
27 The Deputy President gave oral reasons for her decision at the conclusion of the
hearing on 6 November 2017, and made the following orders:
1. The applicant’s application for a review of the decision of the
respondent on 30 March 2017 to revoke the applicant’s Assessment
Notice and issue a Negative Notice to the applicant is allowed.
2. The respondent is directed to give an Assessment Notice to the applicant under the Working with Children Act 2005.
28 At the request of the parties, the Tribunal provided written reasons for decision on 5
January 2018.[31]
[31] Bhatia v Secretary to the Department of Justice and Regulation (Review and Regulation) [2017] VCAT 2031 (Reasons).
The Tribunal’s reasons for decision
29 After briefly outlining the factual and procedural background and the material
before the Tribunal, the Deputy President recorded her satisfaction that it was not
appropriate to refuse to give an assessment notice to Mr Bhatia, having regard to
s 14(3) of the WWC Act, or under s 26C(2) and (3) of the WWC Act. She then turned
to consider each of the factors in s 14(3) in turn.
30 In relation to the nature and gravity of the conduct and its relevance to child related
work,[32] the Tribunal noted that the police statement of alleged facts, prepared in
[32] WWC Act s 14(3)(a).
relation to the originally charged offences, was unaltered. She referred to Mr
Bhatia’s evidence about why he pleaded guilty to the amended charge, and then
identified the conundrum she faced in determining the application:[33]
[33] Reasons, [18]-[19].
This created something of a dilemma. If I accepted in full, the following Statement of Alleged Facts, it was difficult to understand why the
withdrawal/substitution of charges occurred. If I accepted Mr Bhatia’s
version, it was difficult to see how any offence had occurred.
The parties invited me to reach my own conclusions on the facts.
31 After setting out the statement of alleged facts and the statement made by the
accused in the police brief,[34] and Mr Bhatia’s denials in his affidavit of 16 May 2017,
[34] Set out at [16] and [17] above.
the Tribunal continued:[35]
[35] Reasons, [22]-[26].
Mr Bhatia said that he intended defending the charges, but because he wanted to get the matter out of the way and was told by his lawyers that it was a good thing to do, he pleaded guilty and received a non-conviction disposition, expecting and hoping that that would be the end of the matter and he could return to his usual duties at work.
I agreed with the parties’ submission that this case would turn on my
findings about the offending.
If I accepted the police summary in full, Mr Bhatia would have had a difficult task ahead of him in persuading me that he should be granted an Assessment
Notice. Conversely, if I accepted Mr Bhatia’s version that his appearance in
the women’s facilities was accidental and without sinister motive, there
would be no reason to refuse his application.
It is unfortunately the case that this Tribunal is frequently asked to look
behind pleas which often take place “at the door of the Court”. Such pleas
frequently have consequences on a person’s employment which they did not
readily foresee. In Mr Bhatia’s case there has been a significant impact on his
employment. He is unable to continue in his usual role without an
Assessment Notice.In this case, having heard extensive evidence from Mr Bhatia, I accepted his version of the facts.
32 The Deputy President accepted Mr Bhatia as a credible witness, and made the
following findings about what happened on the night of 22 November 2016:[36]
[36] Reasons, [28]-[37].
(a) Mr Bhatia had drunk a lot more alcohol than usual and was ‘under the influence’.
(b) He walked into the female toilet block by mistake. He was looking around for a urinal.
(c) While he was there he exchanged words with the female in the cubicle. She asked ‘What are you doing here?’ Both of them were taken by surprise at him
being in the female toilet.
(d) This was a ‘horrible mistake’ while Mr Bhatia was under the influence, at night time and in an unfamiliar situation.
(e) Mr Bhatia’s behaviour was not predatory and he was not looking for a woman to assault.
(f) He left without incident after the complainant told him to get out. (g) It would have been a horrible experience for the complainant, as Mr Bhatia acknowledged.
(h) Mr Bhatia had consistently denied saying any sexual words. While it was quite possible that the complainant was mistaken, she thought he said the
words she attributed to him.
(i) After leaving the toilet block Mr Bhatia did not flee but ‘stayed at the scene’,
at a nearby bus shelter.
33 The Deputy President made clear that, had she found that Mr Bhatia was
deliberately in the female toilet, trying to look at a female occupant and making suggested lewd comments, she would not have granted the assessment notice.[37] Her
[37] Reasons, [40].
acceptance of Mr Bhatia’s version of events, in relation to the nature and gravity of
the offending, flowed into all of the other considerations under s 14(3).
34 In relation to the period of time since the conduct, the Deputy President reiterated
that despite the ‘somewhat confusing plea bargain’, she accepted Mr Bhatia’s version
of the event. It could be summed up as ‘Wrong place, wrong time, but with no ill
intent’.[38]
[38] Reasons, [41].
35 Noting that a finding of guilt with no conviction was recorded, and that the Tribunal
will rarely look behind a finding of guilt, the Deputy President said that in this case
she considered it appropriate to do so.[39]
[39] Reasons, [43]-[45].
36 As to the sentence imposed for the offence, the Tribunal had already noted that the
Magistrate had no concerns after the plea, did not impose any assessments or other
conditions, and apparently considered the offence to be at the lower end of the
scale.[40] The Deputy President also said:[41]
[40] Reasons, [38].
[41] Reasons, [46].
This is one of the rare cases where I have been prepared to accept the sworn evidence and really just remain a little confused as to how the charges were reached. He [Mr Bhatia] was found guilty and he was placed on a Good Behaviour Bond without any conviction. Once again it is hard to accept that if the Court had found the offending to be of the serious nature described, the Court would have imposed the very lenient sentence that it did. If the Court thought his behaviour was predatory or risky behaviour, it is unlikely that that would have been the outcome.
The Tribunal’s finding that Mr Bhatia entered the female toilet by mistake, without
sinister or predatory intent, was critical to the consideration of the remaining factors
in s 14(3).[42] In relation to the likelihood of future threat to a child caused by the
[42] Reasons, [48], [49], [50].
applicant, the Deputy President did not think that Mr Bhatia posed any threat to
children, because she found that his offending was a mistake rather than calculated
criminal offending.[43][43] Reasons, [51].
38 The Tribunal was satisfied that it was not appropriate to refuse to give an assessment
notice to Mr Bhatia, having regard to s 14(3) of the WWC Act.
39 As to the reasonable person test under s 26C(2), the Tribunal was satisfied that a
reasonable person would allow Mr Bhatia to work in any kind of child related work,
supervised or unsupervised. The reasonable person would look at all of the
surrounding circumstances, see that Mr Bhatia had not offended before or since, see
the nature of the offence, and accept Mr Bhatia’s explanation for how it occurred.
The Tribunal also observed that the reasonable person:
… may also accept, as I have, that there are all different reasons why people
enter into plea deals and this is one of those cases where, I accept, Mr Bhatia entered into a plea deal out of expediency rather than because he would necessarily have received a criminal finding of guilt if the matter had proceeded. We will never know that and it is not my role to look into that, but the reasonable person would look to all of the circumstances.
Also being satisfied that Mr Bhatia’s engagement in any type of child related work
would not pose an unjustifiable risk to the safety of children, the Tribunal was
satisfied that it was not appropriate to refuse to give an assessment notice under
s 26C(2).
41 In relation to s 26C(3), the Tribunal considered that it was very much in the public
interest that Mr Bhatia continue all of the professional work and community work
that he had been doing, or wishes to do in the future, in light of his ‘splendid work
history’ and commendable community engagement. In all the circumstances the
Tribunal was satisfied that it was not appropriate to refuse to give an assessment
notice under s 26C(3).
Application for extension of time
The Secretary’s originating motion was filed on 14 February 2018, 12 days after the
expiry of the 28-day appeal period prescribed by s 148(2)(a) of the VCAT Act. He seeks an extension of time under s 148(5). While the discretion to extend time is at
large, the authorities identify factors typically taken into account in order to do
justice between the parties.[44] These factors include the length of the delay, any
[44] See for example Update Pty Ltd v Commissioner of State Revenue [2013] VSC 122, [29]; Muto v Secretary to the Department of Planning and Community Development (2013) 38 VR 293, [13].
explanation for the delay, any prejudice to the respondent due to the delay, and
whether there is an arguable case for leave to appeal. No single factor is
determinative, although ordinarily time is not extended unless the applicant
explains the delay and provides the Court with a good reason for excusing it.[45]
[45] Cooma Clothing Pty Ltd v Create Invest Develop Pty Ltd (2013) 46 VR 447, [15].
43 Here, the delay was short, and has caused no prejudice to Mr Bhatia in responding
to the proposed appeal.
44 However, the Secretary has neither explained the delay or provided any reason for
excusing it. The affidavit in support of the application merely set out a partial time
line of events and noted the expiry of the statutory time limit on 2 February 2018.
On that day, the WWC Unit wrote to Mr Bhatia’s solicitors to advise that the
Secretary intended to apply for leave to appeal but was not able to meet the deadline
to file the application. The letter advised that counsel had not yet been instructed to
prepare the necessary documents, due to ‘the lengthy process of obtaining
instructions’ and the WWC Unit’s decision not to brief counsel before receiving
instructions to appeal. The WWC Unit anticipated that the necessary documents
would be filed with the Court in the next two weeks, as indeed they were.
45 The Secretary’s approach to the time limit in this case is surprising and not
altogether satisfactory. He is the regulator under the WWC Act and is a frequent
applicant for leave to appeal under s 148 of the VCAT Act. High standards are set
for government parties who are expected to conduct themselves as model litigants.[46]
[46] Secretary to the Department of Justice v XQH [2012] VSCA 72, [11] (XQH).
The Secretary, and the WWC Unit that supports him, should ensure that information
and advice is sought, decisions are made, and instructions are given in time for the
statutory time limit to be observed. Where that is not possible, the Court should be given a proper explanation for the delay and a reason for granting the indulgence
that is sought. Those were conspicuously absent here.[47]
[47] In comparison with the ‘candid explanation’ given in XQH, [11].
46 The Secretary pointed out that the Court of Appeal routinely grants an automatic
14-day extension of time in respect of an application for leave to appeal from a
judicial member of the Tribunal.[48] He submitted that it would be ‘unusual and
[48] As advised in the Court of Appeal’s Notice to Profession – Applications for extension of time under r 64.08
against the interests of justice’ for the Trial Division to refuse an extension of time
that would automatically have been granted by the Court of Appeal. However, the
Court of Appeal’s practice in this respect is due to the requirements for an
application for leave to appeal to be accompanied by a written case and several other
documents.[49] These requirements do not apply to an application for leave to appeal
[49] Supreme Court (General Civil Procedure) Rules 2015, r 64.03(1).
in the Trial Division, where the equivalent steps need not be taken until well after
the application is filed. I therefore cannot accept that the practice in the Court of
Appeal informs my consideration of whether an extension of time should be granted
in this case.
47 Those matters aside, I accept Mr Horan’s submission on behalf of the Secretary that
the most important consideration here is the merit of the questions of law in respect
of which the Secretary seeks leave to appeal. If the Tribunal’s decision involved an
error of law, the interests of justice would favour extending time in order that the
error can be corrected. I will therefore consider the merits of the Secretary’s
proposed appeal before determining whether time should be extended.
Leave to appeal
48 The Secretary seeks leave to appeal, on a question of law, under s 148(1) of the VCAT
Act.[50] Whether leave to appeal is granted depends on the justice of the particular case. The applicant for leave must identify a question of law for which there is a real
[50] On 1 May 2018 the Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017 (Vic) inserted a new s 148(2A) into the VCAT Act, that provides that the Trial Division of this Court may only grant leave to appeal if satisfied that the appeal has a real prospect of success. The new
or significant argument that the Tribunal was in error. It is also relevant whether the
question of law is one of general or public importance, and whether there is
sufficient doubt attending the question of law to justify a grant of leave.51
I heard argument on the substance of the Secretary’s proposed appeal at the same
time as hearing the applications for extension of time and for leave to appeal. It is
convenient to consider whether leave to appeal should be granted in relation to each
question of law identified in the Secretary’s proposed notice of appeal.
Question 1 – Did the Tribunal err by making findings of fact that were inconsistent with
the finding of guilt?
The first question of law identified in the Secretary’s proposed notice of appeal is
whether the Tribunal erred in law in its consideration and application of s 26C of the
WWC Act by making findings of fact that were inconsistent with the finding of guilt
in relation to the offence of behaving in an offensive manner in a public place
contrary to s 17(1)(d) of the Summary Offences Act, and accordingly making
findings that were not open.
Submissions
51 The Secretary submitted that it is well established that an administrative decision-
maker may not impugn a conviction or a finding of guilt that forms the basis of the
decision maker’s authority to make a particular decision. A decision-maker will
impugn such a conviction where he or she makes findings that are inconsistent with
the essential factual basis of the conviction (or finding of guilt). A decision-maker
who impugns such a conviction, and proceeds to his or her conclusion on the basis
of facts inconsistent with the conviction, makes an error of law. A decision-maker is
not precluded from assessing the circumstances surrounding the commission of an
provision applies only to applications commenced on or after 1 May 2018: VCAT Act, s 170. This
application was commenced on 14 February 2018 and is not subject to s 148(2A).
Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, [8]–[16]; see also Garde J’s
summary in Zumpano v Banyule City Council [2016] VSC 420, [10].
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Secretary to the Department of Justice and Regulation v Bhatia
offence, provided that the assessment does not impugn or ‘go behind’ the conviction
(or finding of guilt). Such an assessment may be necessary to enable the decision-
maker to make an assessment of, for example, the nature and gravity of the criminal
conduct. But the decision-maker must not proceed on a basis that is inconsistent
with the essential factual bases for the conviction (or finding of guilt).
52 These propositions were derived from a line of Federal Court authority in the
migration context: Minister for Immigration and Ethnic Affairs v Daniele,[52] Minister for
[52] (1981) 61 FLR 354 (Daniele).
Immigration and Ethnic Affairs v Gungor,[53] Minister for Immigration and Multicultural
[53] (1982) 63 FLR 441 (Gungor).
Affairs v SRT,[54] and Minister for Immigration and Multicultural Affairs v Ali.[55]
[54] (1999) 91 FCR 234 (SRT).
[55] (2000) 106 FCR 313 (Ali).
53 Recently, in Secretary to the Department of Justice and Regulation v LLF,[56] the Court of
[56] [2018] VSCA 155 (LLF).
Appeal accepted that these authorities apply to a review conducted by the Tribunal
under the WWC Act, where the conviction is the basis for the Tribunal’s jurisdiction.
In that case, it was held that the essential factual basis of the conviction is not able to
be reviewed, but the circumstances of the conviction can be reviewed for a purpose
other than impugning the conviction itself.[57] The Secretary submitted that this
[57] LLF, [42]–[43].
analysis applies equally where, as here, a finding of guilt is the basis for the
Tribunal’s jurisdiction.
54 The Secretary submitted that the Tribunal fell into error by making findings that
were inconsistent with the essential factual basis of the finding of guilt against Mr
Bhatia, and by relying on those findings in determining that it was not appropriate
to refuse to him an assessment notice. He argued that Mr Bhatia’s plea of guilty
operated as a formal confession of every element necessary to constitute the
offence,[58] although he accepted that the plea did not necessarily amount to an
[58] Relying on R v D’Orta-Ekenaike [1998] 2 VR 140, 146-7.
admission of every aspect of the police summary that was read to the Magistrates’
Court.
55 I invited further written submissions from the parties as to the elements of the
offence of behaving in an offensive manner in a public place and the essential factual
basis of a finding of guilt of that offence. The Secretary submitted that the physical
elements of the offence were (1) behaviour that is objectively, by reference to
community standards, offensive that (2) occurs in a public place. As to the mental
element, the Secretary submitted that there must be, at least, an intention to engage
in the relevant behaviour in circumstances that render it offensive to a reasonable
person.[59] Alternatively, if s 17(1)(d) were construed as creating a strict liability
[59] Relying on Worcester v Smith [1951] VLR 316, 318; Ingles v Fish [1961] VR 607, 611 and Nelson v Mathieson (2003) 143 A Crim R 148, [13], [17].
offence, it would remain subject to the defence of honest and reasonable mistake of
fact.[60] Where such a defence is raised on the facts, the prosecution must prove
[60] Relying on Proudman v Dayman (1941) 67 CLR 536, 540; CTM v The Queen (2008) 236 CLR 440, [8] and, in relation to a similar offence of offensive behaviour, Police v Pfeifer (1997) 68 SASR 285.
beyond reasonable doubt that the accused did not have an honest and reasonable,
but mistaken, belief that the behaviour was not offensive.
56 In this case, the Secretary submitted, the essential factual basis of the finding of guilt
against Mr Bhatia included the mental element, which was either that he
intentionally and knowingly entered the female toilets or, alternatively, that he did
not have an honest and reasonable mistaken belief that he was entering the male
toilets.
By accepting Mr Bhatia’s version of events, the Secretary argued, the Tribunal made
findings that were inconsistent with the essential factual basis of the finding of guilt
against him. The Secretary emphasised several aspects of the Tribunal’s Reasons, in
particular the observation that, if Mr Bhatia’s version was accepted, ‘it was difficult
to see how any offence had occurred’ and the Deputy President’s statement that in
this case it was appropriate to look behind the finding of guilt. The Secretary also
drew attention to the Tribunal’s findings that Mr Bhatia’s presence in the female toilets was a ‘mistake’ or a ‘horrible mistake’,[61] and that his conduct was ‘a mistake
[61] Reasons, [29], [31], [32].
(of entering the wrong toilet block without sinister intent)’[62] and ‘a mistake rather
[62] Reasons, [49].
than calculated criminal offending’.[63]
[63] Reasons, [51].
These findings were material to the Tribunal’s ultimate findings that it was not
appropriate to refuse to give Mr Bhatia an assessment notice, under each subsection
of s 26C. Hence, the Secretary submitted, the Tribunal was in error.
59 Mr Bhatia submitted that the Tribunal did not impugn the finding of guilt, but
accepted it as enlivening the Tribunal’s jurisdiction. The Tribunal was permitted,
indeed required, to have regard to the circumstances surrounding the offence and
could examine the actual facts of Mr Bhatia’s conduct without undermining the
finding of guilt. He drew a distinction between a plea of guilty to a summary
offence and a jury’s verdict at the end of a contested trial. The former does not
involve any adjudication of disputed issues of fact, and so is not comparable to a
jury verdict.[64] He pointed out that the High Court has acknowledged, in Meissner v
[64] Each of Daniele, Gungor and SRT involved a jury verdict. By contrast, LLF involved a plea of guilty.
R,[65] that a person may enter into a guilty plea ‘for all manner of reasons’ and
[65] (1995) 184 CLR 132, 157 (Dawson J).
submitted that the Tribunal was entitled to consider his reasons for pleading guilty.
60 As to the elements of the offence, Mr Bhatia submitted that they were (1) that the
behaviour the subject of the charge took place in a public place and (2) that it was
objectively offensive. Based on the authorities of Police v Pfeifer[66] and Nelson v
[66] (1997) 68 SASR 285 (Pfeifer).
Mathieson,[67] he submitted that intention was not an element of the offence, although
[67] (2003) 143 A Crim R 148.
the defence of honest and reasonable mistake would be available to an accused.
Although the Tribunal found that Mr Bhatia had entered the female toilets by
mistake, it had not found that the mistake was reasonable, and so its finding was not
inconsistent with the finding of guilt.
Consideration
The Tribunal’s review jurisdiction in this case was invoked by Mr Bhatia under
s 26(1)(d) of the WWC Act, because of the Secretary’s decision to revoke his
assessment notice and give him a negative notice following a category C re-
assessment. The original charges were still pending at the time of the Secretary’s
decision and when Mr Bhatia applied to the Tribunal for review of the decision. It
was not the case, therefore, that the finding of guilt recorded against Mr Bhatia on 18
July 2018 was the basis of or the trigger for the Tribunal’s jurisdiction. Had the
charges still been pending when the Tribunal heard the application, the Tribunal
would have had no choice but to form its own view of the alleged offending conduct
on the evidence before it. However, by the time the application was heard by the
Tribunal in November 2017, Mr Bhatia had pleaded guilty to one, amended charge.
The Tribunal’s task was to determine, in accordance with s 26C, whether it would be
appropriate to refuse to give an assessment notice to Mr Bhatia, in the circumstances
that applied at the time of the hearing – including the finding of guilt.
62 Although the finding of guilt did not form the basis of the Tribunal’s jurisdiction, it
was conclusive as to Mr Bhatia’s guilt of the offence and the sentence imposed by the
Magistrates’ Court.[68] The Tribunal could not review the essential factual basis for
the finding or determine the review on the basis that Mr Bhatia should not have been
found guilty.[69] It was, however, able to receive evidence of the circumstances of the
offending and was able to make its own findings about those circumstances –
indeed, it was obliged to do so in order to make findings about the nature and
gravity of the offending.[70] The Tribunal’s findings could differ from the police
summary, but could not be inconsistent with the finding of guilt and the essential
basis for it.
[68] Gungor, 446, 450 (Fox J), 468-9 (Sheppard J); SRT, [23]-[25]; LLF, [42].
[69] Daniele, 358 (Fisher and Lockhart JJ); Gungor, 445-6 (Fox J), 469 (Sheppard J); LLF, [42].
[70] Daniele, 358-9 (Fisher and Lockhart JJ), 362-3 (Davies J), LLF, [42].
63 As Fox J recognised in Gungor, this may be a difficult line to draw:[71]
On occasion the border line of proper inquiry or of legitimate consideration may be difficult to determine. If the problem arises in practice, it will have to be met. However, the case is probably a rare one where the line between what can be taken into account and what cannot becomes too refined without there having been a sustained attack on the conviction, or a determined presentation of evidence running counter to it. In either case the Tribunal is put on notice, and can control proceedings in such a way as seems appropriate to it.
[71] Gungor, 449 (Fox J). See also Sheppard J at 469.
This case is one of the rare ones. The difficulty in drawing the line here is
contributed to by the ‘somewhat confusing plea bargain’, which saw Mr Bhatia
plead guilty to an amended charge, without any corresponding amendment to the
police statement of alleged facts. While this may have seemed a reasonable way to
deal with the charge in a busy Magistrates’ Court, more attention might have been
given by Mr Bhatia and those advising him to the interaction between his guilty plea
and his pending application to the Tribunal.
64 What, then, is the essential factual basis of the offence of which Mr Bhatia was found
guilty? The answer to that question requires identification of the elements of the
offence of behaving in an offensive manner in a public place, contrary to s 17(1)(d) of
the Summary Offences Act, a summary offence that covers a wide range of conduct.
65 The parties were agreed on the physical elements of the offence. The first element is
behaviour that is objectively offensive, by reference to community standards. The
second element is that the behaviour occurs in a public place. There was no dispute
here about the second element: it was plain that the female toilets that Mr Bhatia
entered are a public place.
66 As to the first element, the totality of the conduct that was alleged against Mr Bhatia
in the police summary was objectively offensive. However, the Tribunal accepted
that he had not deliberately looked into the complainant’s cubicle and had not made
any sexual comment to her. The Tribunal found only that Mr Bhatia had entered the
female toilets by mistake, under the influence of alcohol but with no predatory or ill
intent, had looked around for a urinal and had spoken with the complainant, before
leaving without incident after she told him to ‘get out’. The parties accepted that the
entry and presence of a man in the female toilets within a public toilet block was
| SC:VL | 21 | JUDGMENT |
Secretary to the Department of Justice and Regulation v Bhatia
capable of being found to be offensive, particularly at night.[72] The Tribunal’s
findings were therefore consistent with the physical elements of the offence.
[72] Respondent’s supplementary submission dated 3 August 2018, [12]; Applicant’s further submissions
67 The mental element of the offence is, however, in dispute. The Secretary’s primary
contention was that s 17(1)(d) of the Summary Offences Act requires, at least, an
intention to engage in the behaviour the subject of the charge, if not an intention to
offend. Mr Bhatia submitted, in reliance on the South Australian decision of Pfeifer,
that intention was not an element of the offence, but that the defence of honest and
reasonable mistake was available. I understood this to be a submission that the
mental element of the offence was absence of an exculpatory belief, in the form of an
honest and reasonable, but mistaken, belief that the behaviour was not offensive, or
did not occur in a public place.[73]
[73] The ‘defence’ of honest and reasonable mistake was explained in Director of Public Prosecutions v
68 The starting point must be that the presumption that a statute does not impose
criminal liability unless a guilty state of mind is proved. That is, however, only the
starting point: ‘It is one thing to say that mens rea is an element of an offence; it is
another thing to say precisely what is the state of mind that is required’.[74]
[74] He Kaw Teh v The Queen (1985) 157 CLR 523, 568 (Brennan J) (He Kaw Teh).
69 Whether the offence requires proof of intent to engage in the conduct alleged, as is
generally presumed, or the absence of an exculpatory belief, turns on the language of
the statute, its subject matter and purpose.[75] The language of s 17(1)(d) itself
provides no indication as to the mental element of the offence, and so it is necessary
to look to the broader statutory context.
[75] He Kaw Teh, 576 (Brennan J); Pfeifer, 291.
70 The Summary Offences Act is not the most coherent of statutes. At the time of its enactment, it was a miscellaneous collection of offences applying to subject matter as
diverse as public order, contraceptives, tattooing of juveniles and homing pigeons.[76]
Over the time it has been in force it has been amended numerous times, and it is
now showing signs of wear. Its subject matter remains diverse. Many of the original
offences remain in force, and have an important and ongoing role in maintaining
public order. To those offences have been added a number of new offences,
including offences dealing with sexting,[77] food and drink spiking,[78] and assaulting
emergency workers and health practitioners.[79] Mixed with these are offences that
reflect concerns of times past: it is still an offence against the Summary Offences Act
to fly a kite to the annoyance of any person,[80] to drive a goat harnessed to a vehicle
through a public place,[81] and to ensnare a homing pigeon.[82]
[76] Summary Offences Act 1966, as enacted, s 1.
[77] Summary Offences Act, Pt 1, Div 4A.
[78] Summary Offences Act, Pt 1, Div 4B.
[79] Summary Offences Act, ss 51 and 51A.
[80] Summary Offences Act, s 4(d)(i).
[81] Summary Offences Act, s 8(c).
[82] Summary Offences Act, s 46.
71 Both parties pointed to different aspects of the Summary Offences Act to support
their contended mental element for s 17(1)(d). The Secretary relied on s 18(2), which
provides that an offence against s 18(1) is a strict liability offence, and submitted that
the absence of any such provision in s 17 is a telling indication that intention is
required. Mr Bhatia pointed out that s 17(1)(d) is an offence in respect of which a
police officer can issue an infringement notice,[83] which tends to indicate that it is a
strict liability offence.
[83] Summary Offences Act, s 60AA(1A). Section 60AA(1AB) confers a similar power on a protective
72 As I have outlined, the Summary Offences Act contains a jumble of offences that
have been amended and revised over more than 50 years, and it is hard to discern
any clear legislative intent from the language of isolated provisions. Two themes do
emerge, however, similar to those identified by Doyle CJ in his examination of the
Summary Offences Act 1953 (SA) in Pfeifer.
73 The first theme is that, for a disparate range of offences in the Summary Offences
Act, Parliament has identified a state of mind that must be established as an element
of an offence, or that may be a defence. Some offences must be committed wilfully.[84]
Some offences require knowledge of a state of affairs.[85] Lack of knowledge or
consent is a defence to others.[86] Intent is specified as an element of some offences,[87]
while absence of intent to defraud is an element of the defence to passing a valueless
cheque.[88] Other provisions – including s 17(1)(d) – simply describe the conduct that
constitutes the offence, without reference to any state of mind. This may be an
indication that Parliament meant to criminalise the conduct identified in those
provisions even if the accused did not intend it or know that it would have the
proscribed effect.
[84] Summary Offences Act, ss 8(i), 9(c)-(e), 21, 52(1A).
[85] Summary Offences Act, ss 30(1), 31, 41H(2), 34(1), 51A(1), 51A(2), 53, 54.
[86] Summary Offences Act, ss 10(2), 27(3), 30(2), 33.
[87] Summary Offences Act, ss 41A-41C, 41DA, 49B, 49C, 50A(5).
[88] Summary Offences Act, s 37(2).
74 The second theme that emerges from the Summary Offences Act is that many of its
provisions are directed to maintaining public order and a tolerable standard of
conduct in public spaces. As Doyle CJ observed in Pfeifer:[89]
There is … a common thread of punishing and deterring behaviour likely to
annoy, disturb or upset average members of the community. Expressed differently, the relevant provisions can be regarded as requiring conformity to standards accepted by a wide range of people in society. The provisions operate on actions and conduct likely to occur in everyday life.
[89] Pfeifer, 291 (Doyle CJ, Debelle and Lander JJ agreeing).
75 Bringing these two themes together, I have reached the same conclusion about the
mental element in s 17(1)(d) of Victoria’s Summary Offences Act that the Full Court
of the Supreme Court of South Australia reached in relation to the equivalent
provision in the Summary Offences Act 1953 (SA):[90]
It appears to me to be a provision intended to protect members of society from disturbance and annoyance through offensive behaviour, intended to prevent the sort of disputes and disturbances that might arise if such behaviour is not prevented by law with the consequence that members of society react to it or resist it in other ways. To convict only those who intentionally or knowingly offend will achieve a good deal, but does not go that extra step of requiring members of society to take care to ensure that they do not breach generally accepted standards of behaviour.
[90] Pfeifer, 292 (Doyle CJ, Debelle and Lander JJ agreeing).
76 On that basis, I conclude that intent or knowledge is not an essential element of the
offence in s 17(1)(d). The offence will be established on proof (or admission) that the
accused was not honestly and reasonably mistaken about the circumstances in which
the conduct was offensive or the fact that it occurred in a public place. There is an
evidentiary onus on an accused person to raise the ground of honest and reasonable
mistake. Once that occurs the prosecution must prove, beyond reasonable doubt,
the absence of an exculpatory belief.[91]
[91] Director of Public Prosecutions v Stanojlovic [2017] VSC 540, [26]; Stanojlovic v Director of Public (2018) 84 MVR 386, [45].
77 This conclusion does not conflict with existing Victorian authority, none of which is
directly on point. In Nelson v Mathieson,[92] which concerned a charge of offensive
behaviour in a public place, Nathan J held that it was not necessary for the
prosecution to prove that the accused intended to be offensive. That decision sits
comfortably with the earlier Victoria authorities of Worcester v Smith[93] and Ingles v
Fish.[94] In both of those cases it was held that, in order for behaviour to be ‘offensive’,
it had to be ‘calculated to wound the feelings, or arouse anger or resentment or
disgust in the mind of a reasonable person’.[95] Neither case involved any
consideration of the mental element of the offence; the question in each was whether
the alleged behaviour was ‘offensive’. In that context, I understand the words
‘calculated to’ were used in the sense of ‘likely to’ rather than ‘intended to’.[96]
[92] (2003) 143 A Crim R 148, [13], [17].
[93] [1951] VLR 316 (Worcester).
[94] [1961] VR 607 (Ingles).
[95] Worcester, 318; Ingles, 611.
[96] O’Sullivan v Lunnon (1986) 163 CLR 545, 549 (Gibbs CJ), 552-3 (Brennan J); Howard v Gallagher (1989) 85
78 I have also considered the decision of the Northern Territory Court of Criminal
Appeal in Pregelj v Manison,[97] in which the offence of offensive behaviour in view of
a public place, contrary to s 47(a) of the Summary Offences Act (NT), was held to require proof of intent to commit the act in the view of a person in a public place, or
foresaw it as a possible consequence of the act.[98] That conclusion was based
squarely on s 31 of the Criminal Code (NT), which excuses a person from criminal
responsibility for an act, omission or event ‘unless it was intended or foreseen by
him as a possible consequence of his conduct’. There is no equivalent provision that
applies here, and so the decision provides no guidance in construing s 17(1)(d).[99]
[97] (1987) 88 FLR 346 (Pregelj).
[98] Pregelj, 360-1 (Nader J), 362-3 (Kearney J), cf 367-9 (Rice J).
[99] Pfeifer, 290 (Doyle CJ, Debelle and Lander JJ agreeing).
79 Having reached the conclusion that the mental element of the offence in s 17(1)(d) is
absence of an honest and reasonable but mistaken belief that the conduct is not
offensive or is not in a public place, I can return to the findings made by the Tribunal
about Mr Bhatia’s offending. The Tribunal accepted Mr Bhatia’s account of what
took place that night, including that he entered the female toilets by mistake. There
is a clear inference that the Tribunal accepted that he made an honest mistake. The
Tribunal did not find, however, that Mr Bhatia’s mistake was a reasonable one. By
pleading guilty to the amended offence, and in his reflections in his evidence to the
Tribunal, Mr Bhatia acknowledged that his presence in the female toilets was not
reasonable. He admitted that he was affected by alcohol, having drunk more than
he was used to. He did not dispute that the male and female toilets were ‘clearly
signed with their relevant gender’, as alleged in the police summary. He realised
that it would have been a ‘horrible experience’ for the complainant, and was genuine
in his understanding that she would have felt incredibly confused by his presence in
the female toilet at that hour of the night.[100] He ‘showed a complete understanding
of her position’.[101] These findings are all consistent with the absence of an
exculpatory belief.
[100] Reasons, [36].
[101] Reasons, [50].
80 On that basis, I conclude that the Tribunal did not make findings of fact that were
inconsistent with the essential factual elements of the offence of which Mr Bhatia
was found guilty, and did not impugn the finding of guilt against him. No error is
established in relation to the first question of law raised by the Secretary’s proposed
appeal.
Extension of time and leave to appeal – reprise
81 Returning to the questions of extension of time and leave to appeal, I observe that
the issues raised by the Secretary in this Court were not the subject of any
submission to the Tribunal. This was, in my view, a regrettable omission. It would
no doubt have assisted the Deputy President to have been reminded of the
borderline between proper inquiry into the circumstances of the offending and legal
error, and to have had the assistance that I had in identifying the essential factual
elements of the offence in s 17(1)(d).
82 There are restrictions on raising a point on appeal that was not raised below, for
sound reasons.[102] These restrictions apply to appeals from the Tribunal, as much as
to any other appeal.[103] Even when a new point could not have been met by further
evidence at trial, it may not be in the interests of justice to allow a new point to be
raised on appeal if it would require a further trial.[104]
[102] Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [51] (Gleeson CJ, McHugh and Gummow JJ) (Whisprun); Vlahos Pty Ltd v Vlahos [2017] VSCA 166, [49].
[103] Able Demolitions and Excavations Pty Ltd v Yarra Ranges Shire Council (2008) 160 LGERA 439, [42]; Risi Pty Ltd v Pin Oak Holdings Pty Ltd [2017] VSCA 317, [74].
[104] Whisprun, [51].
83 However, Mr Bhatia did not make any complaint that the issues raised in the
Secretary’s proposed appeal were not raised below, and neither party made
submissions on whether those issues could have been met by further evidence or
whether it would be the interests of justice to grant leave to appeal on a question not
raised below. Although it was not argued before the Tribunal, the first question of
law identified in the Secretary’s proposed notice of appeal raised a real and
significant argument of importance. I will therefore make orders extending time,
and granting leave to appeal in relation to the first question of law. For the reasons I
have given, however, I will dismiss the appeal.
Question 2 – Did the Tribunal wrongly proceed on the basis that the parties had invited
it to reach its own conclusions on the facts?
84 The second question of law in the proposed notice of appeal is whether the Tribunal
erred in law or denied procedural fairness to the Secretary, by proceeding on an
erroneous basis that the parties had invited the Tribunal to reach its own conclusions
on the facts of the offending (as opposed to the facts concerning the basis on which
Mr Bhatia’s plea of guilty was made and accepted), and accordingly by making
findings that were not open.
85 Mr Horan rightly acknowledged in argument that this question of law was tied up
with the first question. The Tribunal was entitled to make its own findings about the
offending conduct and the circumstances in which it occurred.[105] I have found that
the Tribunal did not make findings that were inconsistent with the essential factual
elements of the offence and that the findings that it made about Mr Bhatia’s
offending conduct were open to be made.
[105] As discussed at [62] above.
86 As to the complaint of want of procedural fairness, it appears from the transcript of
the hearing below that counsel for the Secretary anticipated that the Tribunal would
make its own findings about the offending.[106] At one point he submitted ‘if you
accept the account by the applicant then it puts the categorisation of the offending in
a somewhat different light than if you accept the summary that was read out’.
Having reviewed the transcript of the hearing I am not persuaded that the Tribunal
proceeded on a wrong understanding of the Secretary’s case.
[106] Ventrice affidavit, exhibit GAV-1, pp 241-2.
87 In addition, the Secretary had every opportunity to respond to the case put by Mr
Bhatia before the Tribunal. It was clear throughout that he disputed critical facts
alleged in the police summary, and that his case was that he had entered the female
toilets by mistake and with no ill intent. The Secretary could have, but did not, call
evidence to contradict Mr Bhatia’s account.
I do not consider that the Secretary’s second question of law raises a real or
significant argument that warrants leave to appeal. I will therefore refuse leave to
appeal in relation to the second question.
Disposition
89 I will make orders to the following effect:
(a) The Secretary is granted an extension of time in which to commence the proceeding, to 14 February 2018;
(b) The Secretary is granted leave to appeal in respect of the first question of law in his proposed notice of appeal;
(c) The appeal is dismissed; (d) The application for leave to appeal is otherwise dismissed. 90 I will hear the parties as to the costs of the proceeding.
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On 17 May 2017 the Tribunal granted his application for an extension of time in which to file his application: Ventrice affidavit, [13].
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of the Supreme Court (General Civil Procedure) Rules 2015 that applied for 12 months from 1 May 2017. The practice was adopted in respect of applications for leave to appeal, including those made under s 148 of the VCAT Act.
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dated 10 August 2018, [16], fn 27.
Stanojlovic [2017] VSC 540, [26] as follows: ‘It is a principle at common law that an honest and
reasonable, but mistaken, belief in a set of facts which, if they existed, would have made the defendant innocent, provides a ground of exculpation. The evidentiary onus of raising the ground is on the defendant. Once that occurs, the legal onus lies on the prosecution to prove beyond reasonable doubt the absence of an honest and reasonable belief.’ See also, Stanojlovic v Director of Public (2018)
84 MVR 386, [45].
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services officer in respect of a ‘designated place’.
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ALR 495, 497-8.
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