Man claims 'everything' before mall customer's alleged rape made him think he had consent

CONTENT WARNING: This article refers to an alleged sexual assault.

A man has defended himself against allegations that he sexually assaulted a customer in a Belconnen Westfield art store, repeatedly claiming how “everything” that happened before they had sex made him think he had her consent.

Abhishek Timalsina is accused of sexually assaulting the woman in the back of the store in November 2022 and is fighting his six charges at an ACT Supreme Court trial that began earlier this week.

It is alleged he pushed her into allowing him to take photos of her in the store, then she felt “scared” and “stopped resisting” during the incident. She allegedly did not consent to what happened to her.

Mr Timalsina testified himself on Friday (11 August), telling his barrister John Purnell SC he hadn’t told his wife about his encounter with the woman, “Because I didn’t want her to find out that I had cheated on her”.

The Nepalese-born 29-year-old said he was “shocked” when police confronted him with the allegations, telling them, “It’s not true”.

He claimed the woman had been “enjoying” herself when he was taking photos and had been “happy” when she was posing for the camera.

He also claimed he asked her if she had a boyfriend and she replied, “If I had a boyfriend I would not be here with you”.

After he said she agreed to take photos in the backroom, he claimed he asked her if he could kiss her, and then they had 10 seconds of eye contact before he said, “I’m going to go for it”. He also claimed she approached him before they kissed for two minutes.

Mr Timalsina alleged that just before the kissing escalated into consensual sex, she asked him if he had protection and he said no, but she still told him, “Alright, okay”. They only spent about three minutes in the backroom, he said.

“If she had said ‘stop’ or not kissed me… I would have stopped right there,” he said.

During cross-examination, he repeatedly told prosecutor Trent Hickey he thought he and the woman had been “connecting” during the incident, but when questioned what he meant by that, he said he couldn’t define it and claimed it had “a lot of meanings”.

“We were connecting. She was happy, I was happy,” he said.

He said he thought they had been “flirting” when they were talking and taking photos, with her allegedly laughing and telling him, “You speak very nicely”, and he didn’t remember her being uncomfortable.

He claimed she was “excited” to take another photo at the back of the store and said he didn’t think she told him her name before they had sex.

Mr Hickey suggested he did not get the woman’s consent and that he took no steps to ascertain if she wanted sex, but Mr Timalsina claimed she had asked for protection and told him, “Alright, okay”.

“I took all the steps,” he said.

The prosecutor also asked if he had a “dominant personality”, which Mr Timalsina denied.

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

The trial continues before Justice Verity McWilliam.