Jury discharged in ACT Supreme Court trial of Abhishek Timalsina

A note to the court cited "an irreconcilable impasse" among jurors in the ACT's first trial under new affirmative consent laws.

Abhishek Timalsina, 29, had claimed he was "vibing and connecting" with the female customer, whom he had met minutes before allegedly raping and indecently assaulting her in a Westfield Belconnen store in November 2022.

Timalsina denied the accusations during an ACT Supreme Court trial, which began last week.

He pleaded not guilty to two counts of sexual intercourse without consent and four counts of committing an act of indecency without consent.

On Friday, after almost four days' deliberation, Justice Verity McWilliam discharged the jury.

The court had received a note stating jurors were "at an irreconcilable impasse and are unable to come to an unanimous verdict on any count".

The ACT's sexual consent laws were last year amended to an affirmative model where consent requires informed agreement to a sexual act which is freely and voluntarily given, and communicated by saying or doing something.

Giving instructions to the jury during deliberations, Justice McWilliam said: "We no longer adhere to the notion that a person is consenting unless they kick and scream and run away.

"A person is not to be taken to consent just because they did not protest or physically resist.

"Each sexual act has to be the subject of free and voluntary agreement, communicated."

In a recorded police interview, played during the trial, the alleged victim said she visited the store to return some art supplies and buy gel pens about 20 minutes before closing time.

Timalsina, the only staff member present at the time, spoke to her about art and repeatedly asked to take her photograph.

"I guess I said 'no' enough and I felt uncomfortable so I said 'OK'," the woman told police in the interview.

"He took some photos and then he said, 'Do you want me to kiss you'?

"Before I could answer he said, 'I'm just going to go for it'."

Prosecutor Trent Hickey told jurors Timalsina closed the store and led the woman to a back room, where he allegedly indecently assaulted her multiple times and raped her twice.

"I had stopped reacting completely," the woman told police.

After the first alleged rape, the woman claimed she "didn't know if I had permission to stand up, so I just stayed there".

"So he said, 'Oh, you want more' and [raped me again]," she claimed.

Giving evidence, in response to questions from his barrister, John Purnell SC, Timalsina told the court he believed the customer was flirting with him.

"When I was clicking the pictures, she was really enjoying [herself] and smiling about it," he said.

"I asked her if she had a boyfriend. Her words were, 'If I had a boyfriend, I would not be here with you'.

"I could see it in her eyes and in her expression that she was aroused."

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While Timalsina agreed he had not explicitly asked for the woman's consent, he said: "Everything that happened before the staffroom, before the kiss, made me believe that I had her consent."

He told the court the alleged victim had asked him if he had protection and said "alright" when he indicated he could pull out.

The alleged victim had told police: "I thought he was just going to do it and, I guess, my main concern at the time was pregnancy and I asked him if he had protection, at least."

The case is set to go before the court again next week to set a date for a retrial.

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