Director of Public Prosecutions v Timalsina (No 2)

[2024] ACTSC 280

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Timalsina (No 2)

Citation: 

[2024] ACTSC 280

Hearing Date: 

12 September 2024

Decision Date: 

12 September 2024

Before:

McCallum CJ

Decision: 

(1) Being satisfied that there is a real and substantial question about the accused's fitness to plead, I reserve the question for investigation under Div 13.2 of the Crimes Act.

(2) Pursuant to s 315(2)(d) of the Crimes Act, I discharge the jury.

(3) Pursuant to s 315(2)(c) of the Crimes Act, I make an order requiring the accused to be examined by a psychiatrist.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – FITNESS TO PLEAD – whether accused’s conduct raised a real and substantial question about the accused’s fitness to plead – where accused’s counsel was unable to obtain instructions

Legislation Cited: 

Crimes Act 1900 (ACT) s 315

Parties: 

Director of Public Prosecutions ( Crown)

Abhishek Timalsina ( Accused)

Representation: 

Counsel

D Ager ( DPP)

F J Purnell SC ( Accused)

Solicitors

ACT Director of Public Prosecutions

CODA Criminal Law ( Accused)

File Number:

SCC 45 of 2023

McCALLUM CJ:       

EX TEMPORE REASONS (REVISED)

1․Abhishek Timalsina is charged on an indictment dated 30 March 2023 with four acts of indecency and two counts of engaging in sexual intercourse without consent.  He was previously tried by a jury in a trial over which McWilliam J presided.  That trial resulted in the jury being hung. 

2․The second trial commenced before me on Monday of this week.  On Tuesday, the prosecution brought to my attention the fact that the accused appeared to have published on Reddit a document described as a book which, upon examination, was an account of the impact of the present allegations on his life.  The book reveals that he regards the allegations to be false.  Indeed, he refers to the complainant’s allegations as lies.

3․That prompted the prosecution to apply for a variation to the accused’s bail.  There was no application at that stage for bail to be revoked, but the prosecution sought two further conditions of bail, which I imposed, as follows:

9.The accused is not to post or publicise information concerning the proceedings or evidence relevant to the proceedings on any public platform.

10.The accused is to take all reasonable steps to remove all posts, information and/or written work concerning the proceedings, evidence relevant to the proceedings, or information that could be used to identify the complainant, from all public platforms by no later than 10am, 11 September 2024, including but not limited to: The book titled “Its nothing”, the website and the YouTube video titled “Accused Rapist”.

4․Condition 10 required the accused to remove the material by 10:00 am yesterday.  When Court resumed at that time, the accused was not present.  Furthermore, upon inquiry, I was informed that he had not removed the material from the internet as required by that new condition of his bail.

5․Mr Purnell SC, who appears for the accused, informed me that he had learned from the accused’s wife that the accused was sitting on his balcony at home, “waiting to be arrested.”  I directed the issue of a bench warrant and, in due course, the accused was arrested and brought before the Court. 

6․It has subsequently transpired that there were pre-existing concerns as to the accused’s conduct in the period leading up to the trial. The combination of those concerns and the events I have described prompted Mr Purnell to make an application in accordance with the provisions of div 13.2 of pt 13 of the Crimes Act 1900 (ACT).

7․Mr Purnell submitted that the court should be satisfied that there is a real and substantial question about the defendant’s fitness to plead. He sought an order that the accused be examined by a psychiatrist or other health practitioner, as contemplated by s 315 of the Act.

8․In support of the application, Mr Purnell led evidence from the accused’s wife, Ms Sharma.  She said that she had observed a deterioration in the accused’s mental health since February 2023, about three to four months after he was arrested and charged with the present offences.  She said the accused first started accusing her brother, who was the accused’s employer, and later also accused her of being “involved in the issue”.

9․In February 2023, he accused her brother, in what a lay observer might term a conspiracy theory, of being part of a plan to prosecute false charges and put the accused in jail for offences he had not committed.  In March 2023, it appears the accused folded his wife into that conspiracy theory, making the same allegations against her.  He told her that he sometimes hears things and accused her of being behind the allegations.  He accused her of “paying money to the girl” (presumably a reference to the complainant).  The accused also made a video which he posted on YouTube which is termed, “Accused Rapist”.  In that video, as the accused’s wife describes it, he talks about, “how we are all working together to make sure he ends up in jail.”

10․The accused’s wife also said that yesterday, the accused told her that she would be punished by God because she is doing “the bad thing”, presumably a reference to her involvement in the conspiracy theory as he perceives it.  He told her that he would like to represent himself in the proceedings but wanted to obtain advice about that from Mr Purnell.

11․Yesterday morning, the accused’s wife tried to get him to come to court.  He said to her, “It is in the hands of God.”  He indicated either to her or to his lawyers (it is not clear to me which) that he had not removed the material from the internet, despite knowing that his failure and refusal to do so would inevitably result in his being arrested and having bail revoked, because he “just could not bring himself to do it”.  Mr Purnell asked the accused’s wife whether she had tried to persuade the accused to seek assessment.  She said that she had, on several occasions, but that he says he doesn’t need assessment because he is “enlightened”.

12․In cross‑examination of Ms Sharma, the prosecution was successful in establishing that there were aspects of the accused’s dissatisfaction with the conduct of the trial that might be seen as at least being lucid or rational, if not based on any fair criticism.  However, on balance, it seems to me that his wife’s evidence, which I have no hesitation in accepting as she was a careful and persuasive narrator, outweighs the hint or suggestion of a level of rational thought in the accused’s appraisal of the conduct of the trial.

13․Separately, Mr Purnell has this morning tendered text messages which indicate that he has been unable to obtain instructions from the accused.  From at least 20 August 2024, his instructing solicitor, Ms Hamon, has been attempting to persuade the accused to participate in a conference with her and Mr Purnell.  Initially, the accused simply did not respond to those text messages.  On 27 August, in response to a text message in which the solicitor stated that she and Mr Purnell needed to see him urgently regarding his upcoming trial, he wrote the following:

Dear Satomi, I am saying this in the nicest way possible.  I know I won’t be heard in your presence or in anyone else’s, for that matter.  I have seen characters, colours, last time when I was in your court of law. So I do not see the point of me meeting you.  If I won’t be heard, then there’s no point for me to speak.  I do not see the point of me meeting you.  I will meet you at the retrial.  I will let fate take charge.  Whatever happens to me, happens to me, you can prepare as you wish.  Thank you.

Ms Hamon continued to try to persuade the accused to meet her and Mr Purnell.  He did not respond to those further messages.

14․It may be observed that going into a trial without having had the opportunity to have a conference with the accused, or to obtain any instructions from him because of a refusal to provide instructions, would of itself have provided a basis for the legal representatives to raise the issue of fitness to plead before a jury was empaneled. With great respect to those involved, whose conduct I accept has been motivated by goodwill and best intentions, that would have been the preferable course. In any event, based on the evidence that is now before me, I am satisfied that there is a real and substantial question about the defendant’s fitness to plead. It follows in accordance with the provisions of s 314(3) of the Crimes Act that I must reserve that question for investigation.

Orders

15․For those reasons I make the following orders:

(1)Being satisfied that there is a real and substantial question about the accused’s fitness to plead, I reserve the question for investigation under Div 13.2 of the Crimes Act.

(2)Pursuant to s 315(2)(d) of the Crimes Act, I discharge the jury. 

(3)Pursuant to s 315(2)(c) of the Crimes Act, I make an order requiring the accused to be examined by a psychiatrist.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: