Director of Public Prosecutions v Timalsina (No 3)

[2024] ACTSC 346

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Timalsina (No 3)

Citation: 

[2024] ACTSC 346

Hearing Date: 

1 November 2024

Decision Date: 

1 November 2024

Before:

McCallum CJ

Decision: 

(1)  I determine that, on the balance of probabilities, the defendant is fit to plead;

(2)  I refer the proceedings to the call-over on 18 November 2024.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – FITNESS TO PLEAD – where question of fitness to plead arose during jury trial – where Court requested examination of the accused by a psychiatrist – where accused remanded in custody following miscarriage of previous trial – salutary effect of period on remand on accused’s engagement with lawyers – where psychiatrist found accused was capable of being an effective participant in the proceedings

Legislation Cited: 

Crimes Act 1900 (ACT) s 315B

Parties: 

Director of Public Prosecutions ( Crown)

Abhishek Timalsina ( Accused)

Representation: 

Counsel

E Knaggs ( 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․Earlier this year, I presided over a trial with a jury in which Abhishek Timalsina was being tried for sexual offences.  During the course of the trial, the accused’s behaviour became strange and concerning.  Subsequently, I was informed by his counsel that he had refused to confer with his legal representatives and that they conducting the trial on the strength of instructions they had obtained during a previous trial which resulted in a hung jury. 

2․In those circumstances, I formed the view that there was a real issue as to the accused’s fitness to plead: DPP v Timalsina (No 2) [2024] ACTSC 280. Accordingly, in accordance with the provisions of div 13.2 of the Crimes Act 1900 (ACT), I discharged the jury and reserved the question of the accused’s fitness to plead. I also made an order requiring that the accused be examined by a psychiatrist.

3․In accordance with that request, Dr Anthony Barker has now provided to the Court a report dated 25 October 2024.  The report addresses the relevant matters of history and the elements of the statutory test for fitness to plead.  Dr Barker concludes that, on the balance of probabilities, Mr Timalsina does not appear to suffer from a major mental illness.  Dr Barker further states, “In addition, Mr Timalsina appears capable of being an effective participant in the course of a proceeding and, in my opinion, would be considered fit to plead.” 

4․One of the principal concerns I had when I discharged the jury was Mr Purnell’s information that the accused was refusing to confer with Mr Purnell or his instructing solicitor.  Mr Purnell has told me this morning that Mr Timalsina has now re-engaged with his legal representatives and that two conferences have been held. 

5․The accused has been in custody since the conclusion of the last trial and is due to apply for bail next Tuesday.  The information I have received from Mr Purnell this morning extends to his informing me that Mr Timalsina’s period of detention on remand appears to have had a salutary effect on his engagement with his legal representatives. 

6․Neither party seeks any further opportunity to investigate Mr Timalsina’s fitness to plead.  Both parties are content for the Court to make a determination in accordance with Dr Barker’s report and to refer the matter to the next call-over. 

7․For those reasons, I am satisfied on the balance of probabilities that Mr Timalsina is fit to plead. In accordance with s 315B of the Crimes Act, it is appropriate therefore for the criminal proceedings against him to be continued in accordance with ordinary criminal procedure.  The matter should accordingly be referred into the next call-over, which is to be held on 18 November 2024.

Orders

8․For those reasons I make the following orders:

(1)I determine that, on the balance of probabilities, the defendant is fit to plead;

(2)I refer the proceedings to the call-over on 18 November 2024.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: