We have all heard of the phrase ‘pub test’ and have general idea of what it means- whether majority of people having a drink (in the pub) would approve or disapprove of something. Many government policies are tested when Aussie blocks take a decision sitting in a pub. It is more significant Australian past time than any other activity considered to be of any value by our politicians.
For Raj Bhatla (not his real name) an Indian Australian, if he is to be believed, going to a pub – landed him in deep trouble.
Raj was employed and his work required a valid Working with Children Assessment Notice. Once he was visiting a regional country town – ‘things happened’ and that Assessment was revoked. He maintains he did not do anything wrong and whatever happened was purely accidental and extremely unfortunate mistake. But now he has a legal battle on his hands to clear his name and get a valid Working with Children Assessment Notice back. This is his story.
Raj was away from home in a regional city he did not know well. He went to a local pub there and consumed around five pots of heavy beer. He was at the hotel for about one hour and was a little drunk when he left around 10:15 PM.
After he left the hotel he went looking for something to eat as the hotel was not serving meals at that time. He passed a public toilet block and went in with the intention of urinating. He claimed he wasn’t paying attention and inadvertently walked into the ladies toilet.
His eyesight is weak and he wears glasses for reading and seeing close objects. He wasn’t wearing glasses at the time. He is also diabetic and needs to go to the toilet frequently through the day as the urge to urinate can come at any time.
“For this reason”, Raj says “he has a habit of trying to go to the toilet whenever he can see one, even if there is no immediate physical need to do so.”
He only realised that he had entered the ladies toilet when a woman using one of the cubicles called out to say he was in the wrong place. He left the toilet block and crossed the road to sit on a bus shelter because it was very windy and raining heavily. At round 11 PM the police came and spoke to him, arrested and charged him with “unlawful assault” and “behave in an indecent manner”.
The complainant woman claimed:
At approximately 10:15 PM Raj walked into a female toilet block which had male and female toilets clearly signed. The woman was using the toilet inside a cubicle inside at the time.
She then observed him standing outside her cubicle staring at her through a gap in the cubicle doorway. She asked him what he was doing and informed him that he needed to leave and he can’t be in there. She claimed he replied “yes I can. What are you doing?”
According to the woman, he continued to stand in the cubicle doorway while she stood up from using the toilet. He remained standing in the doorway. The woman yelled telling him there was a male and the female toilet. Raj replied saying “do you want to do something?”
The woman was fearful of Raj and began continually yelling “get out”. Raj 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 a sexual thing?” She told Raj “no”. He 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 while Raj was still sitting at the same bus stop. She called police who then spoke to the accused and charged him of “unlawful assault” and “behave in an indecent manner”.
Raj’s version:
He had about 4 to 5 beers at the hotel where he was for about two hours and was now partially drunk. After he left the hotel he was looking for something to eat and he went past the toilets and by mistake went into the ladies’ toilet.
Raj further stated that he realised he was in the wrong toilet when someone told him and he apologised and walked out. He 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.
He denied looking into the cubicle and he denied asking about anything sexual.
He claimed he made the mistake as he was partially drunk and not wearing his glasses which he wears to see objects clearly.
He continued to deny any wrongdoing. Not running away from the mistake he had made – of going into the Ladies Toilet – he said:
“It is true that I was looking around; I was confused that I could not find the men’s urinal. The woman in the toilet thought I was looking in her cubicle, and I was thinking “what is this woman doing in the men’s toilet” until I realised that I was in the wrong place.”
After he was charged, his lawyers advised him to plead guilty to having made that mistake – going into the ladies toilet.
Thinking that would be the end of the matter and he would be able to return to work, he pleaded guilty and received a non-conviction disposition.
Unbeknown to him, he lost his Working with Children Assessment Notice. Continuing to deny the allegation, Raj decided to challenge the charges and negative Working with Children Assessment Notice he was given as a result of this incident.
By the time this matter was heard by the Tribunal, the charge of “unlawful assault” was withdrawn by police and the charge of “behave in an indecent manner” was substituted with the offence of “behave in offensive manner in a public place” a Category C offence, a lot less serious.
This case presented a real dilemma for the Tribunal. If it accepted the police version (or the woman’s complaint), it was difficult to understand why the withdrawal/ substitution of charges occurred. If it accepted Raj’s version, it was difficult to see how any offence had occurred.
Looking behind the guilty plea and fortunately for Raj, the Tribunal officer observed the following about Raj and the incident in the female toilet:
He (Raj) said that he was looking for a urinal. In my view this is a reasonable explanation, particularly as both of them, in their respective statements confirm that the complainant asked “What are you doing here?” It is completely consistent with both of them being taken by surprise at him being in the female toilet, and misunderstanding the situation.
Raj says he was taken by surprise and I accept that. Ultimately I have accepted that this was a horrible mistake while he was “under the influence”, particularly as it was night-time and he was in an unfamiliar location.
It was Raj’s accent- leading to misunderstanding:
The Tribunal officer said it is quite possible that the complainant woman was mistaken.
The Tribunal officer believed the complainant woman’s perceptions and confusion had tarnished what she thought he was saying to her, as he was backing out of the female toilet, particularly given he has he an accent which means that there could have been some misunderstanding.
With the Tribunal officer finding Raj credible and consistent, he accepted Raj’s version of events and ordered that Raj be given an Assessment Notice under the Working with Children Act 2005.
Although Raj had a win at the Tribunal level, BT believes, the decision was appealed by the department of Justice is before the Supreme Court.
Moral of the story – if you have an accent, don’t be drunk in unfamiliar surroundings, it may land you in real trouble!