CONTENT WARNING: This article refers to an alleged sexual assault.
It is alleged a woman was sexually assaulted by an “assertive stranger” in a Belconnen Westfield arts store, although the man’s defence team has argued he believed she was consenting at the time.
Abhishek Timalsina is fighting six charges laid over the November 2022 incident at an ACT Supreme Court trial that began last week.
Jurors heard the married store employee allegedly pushed the woman into allowing him to take photos of her at the end of a work day when she had gone there as a customer, then she stopped resisting when he sexually assaulted and raped her in a back room.
During the closing arguments on Monday (14 August), prosecutor Trent Hickey alleged the complainant had walked into a shop and found herself in an uncomfortable situation with an “assertive stranger” who sexually assaulted her.
She claimed she felt sick and disgusted and stopped reacting.
Mr Hickey said the woman had told police she wasn’t good at enforcing personal boundaries and he claimed closed-circuit television footage of her getting her photo taken by Mr Timalsina in the store showed her being “uncomfortable and nervous”.
Barrister John Purnell SC said there was no doubt his client had asked the woman if she wanted to perform a certain sex act and when she told him she didn’t, he respected her decision.
But the barrister said when he was cross-examining the woman, she told him, “I did all the things he wanted me to do”. This answer was untrue, he claimed.
“She knew she could say ‘no’ and said ‘no’,” he said.
He said this was not the only thing she had said “no” to, as she also hadn’t given her phone number to his client.
Mr Purnell said another action was critical to his client’s thinking. He claimed that when Mr Timalsina put his hand on the woman’s zipper in the backroom, she put her hand on his hand and asked if the room’s security camera was working.
It was his client’s “reasonable” interpretation that he thought she was saying she didn’t want the camera on if they were going to have sex, he said.
Last week, the 29-year-old claimed that “everything” that had happened before they had sex made him think he had her consent.
But Mr Hickey alleged that during cross-examination on Friday, Mr Timalsina admitted he hadn’t received verbal consent to kiss or have sex with the woman. The prosecutor said he relied on his claims that they had been “connecting” or sharing “a vibe”.
“It was connection on my part,” Mr Timalsina had told police officers when they searched the store.
“If she had pushed me… then I would have stopped.
“But I got that vibe, I got that connection with her.”
Mr Hickey said a doctor had given their opinion on the responses that may occur in someone who has faced a sexual assault.
They said in their experience, people often felt they should have fought back, but couldn’t, which they regretted.
Mr Hickey argued the woman had expressed regret, raising texts she sent to a friend after the alleged rape.
“There were so many things I could have done differently,” she said, saying her brain had “checked out” at the time.
But the prosecutor said she told Mr Timalsina “no” when he first asked to take her photo and when she posed for them she did so uncomfortably.
He also claimed she tried to physically resist him at one stage during the alleged assault, as when Mr Timalsina allegedly tried to unzip her jeans, she pushed his hand away.
Mr Hickey said many victims felt unsafe or unable to resist, which was why the law recognised that consent needed to be expressed.
Freezing or being silent was not consent, he said, and he argued a person had to seek consent by taking steps to ascertain if it existed.
Mr Timalsina has pleaded not guilty to two counts of sexual intercourse without consent and four counts of committing an act of indecency without consent.
Justice Verity McWilliam has begun giving her instructions to the jurors.