By Sahar Adatia and Jimmy Singh
Our criminal justice system is based on the presumption of innocence until you are proven guilty in court. It’s a fundamental principal of our criminal justice system, and for very good reason- think of ever being accused of something you didn’t actually do.
While it’s easy to point the finger at someone, it’s not as easy to prove it under the law. However, if proven, you can expect to face serious consequences- which is why an experienced sex offence lawyer should be contacted for guidance and advice.
On Tuesday, August 28, 2018, an Uber driver was charged with the alleged rape of a 17-year-old girl in a carpark in Sydney’s eastern suburbs. The teenager had fallen asleep in the car while the driver travelled to Bondi.
According to a statement from NSW Police, the 37-year-old driver, identified as Onur Dedeoglu, picked up the girl and two of her friends from a night out in the CBD in the early hours of Sunday, August 26. Mr Dedeoglu drove the trio to Bondi where two of the girl’s friends were dropped off, following which the alleged victim was meant to be driven to another address in North Bondi.
Instead, Mr Dedeoglu allegedly drove the teenager to a neighbouring carpark where he raped her.
Assistant Commissioner Mark Walton addressed the incident, saying that the driver allegedly “sexually assaulted the teenager in his vehicle.”
“It is alleged that she was asleep at the time of the incident,” he said.
Following the incident, the victim was able to provide a description of Mr Dedeoglu, which assisted an investigation by the Eastern Suburbs Policy Area Command, who were able to track down the man at a Liverpool home on Monday.
The driver was arrested and taken to Liverpool Police Station where he was charged with sexual intercourse without consent.
Mr Dedeoglu was released on conditional bail and is due to appear at Liverpool local court on October 25. One of the bail conditions states that he does not work as a ride-sharing driver.
Assistant Commissioner Walton said the young victim was “distressed” by the experience.
“Any sexual assault is a very distressing situation for any person,” he said.
Uber Release Statement About the Alleged Assault
In response to the alleged sexual assault, an Uber spokeswoman released a statement about the incident, saying that sexual assault “has no place anywhere.”
“This is deeply upsetting,” the Uber representative said.
“As soon as we became aware of this report we immediately removed this driver’s access to the app.”
Uber is working closely with NSW Police and has assured their ongoing support of the enquiry.
Uber has since suspended the driver.
A Warning on Predatory Behaviour to Ride-Share Drivers and Taxi Drivers
In the incident’s aftermath, Assistant Commissioner Walton also forewarned other ride-share and taxi drivers on the inappropriate behaviour.
“If you are someone that engages in this predatory behaviour, we are going to catch you,” he said.
“Whether that’s in a taxi where there’s CCTV, whether that’s in an Uber or ride-share type vehicle – there is technology that is going to assist police in their investigation.”
He also enforced that the support they receive from ride-share providers and the taxi industry is very co-operative, which assists investigations every day.
Sydney Uber Driver Sentenced to Minimum 6 years and 4 months Prison for rape of woman
Last year, an Uber driver in Sydney was convicted of raping a woman whom he gave a ride to from outside a nightclub in Kings Cross in 2015.
The 41-year-old driver, Muhammad Naveed, was jailed for a minimum of six years and four months for assaulting the woman in his car. The woman was intoxicated and fell asleep in the vehicle. When she awoke, she found the driver on top of her.
Naveed pursued a not guilty plea, defending that the sex was consensual. However, the jury determined the woman did not consent, and moreover, that the drunken state she was in left her in no state to provide consent.
Former Sydney Uber Driver Acquitted of Rape
In September 2016, Yamur Sadiqi was arrested and charged with sexual intercourse without consent.
Police alleged that the driver picked up a 26-year-old woman around 11pm from West Pennant Hills in Sydney’s north-west.
On the drive home, Mr Sadiqi allegedly pulled over his Nissan Micra in Carlingford and raped the passenger. Following this, he drove her home.
However, while Mr Sadiqi was charged with committing an act of indecency and sexual intercourse without consent, he was eventually acquitted of the rape of the woman.
NSW District Court jury found the driver not guilty of all charges.
This came as the court had previously heard the “very drunk” woman sent a text message to a friend on the night saying, “Help me, I’m being taken advantage of by an Uber driver.”
Upon his acquittal, Mr Sadiqi said that “justice had been served.”
Sexual Assault Charges and Penalties in NSW
You can expect to face up to 14 years imprisonment for committing the offence of sexual assault in NSW under section 61I of the Crimes Act 1900 (NSW).
A sentence of imprisonment usually contains a parole period and non-parole period. The non-parole period is the minimum period required to spend in custody (behind bars), while the parole period is the period you can be released back into the community with conditions of supervision.
For an offence of sexual assault in NSW, an offender will also be faced with the Judge being required to consider a standard 7 years non-parole period in the sentencing process. That standard non-parole period is used as a guide which the Judge can take into account if the offending behaviour is considered at the mid-level of seriousness for these cases.
It’s possible, but rare to receive a penalty other than full time imprisonment for sexual assault.
For example, the Judicial Commission of New South Wales reported that for sentences imposed from January 2008 to December 2017 for sexual assault offenders, there were 11% of offenders who were sentenced to an alternative to full time prison, and 88% received full time prison. Out of those 88%, the majority of offenders received a non-parole period of 24 months. While 1% received the longest non-parole period of 8 years.
Those 11% of sexual assault offenders received a sentence of imprisonment that was immediately suspended on the condition to be of good behaviour. This means that those offenders were released into the community immediately.
The maximum 14 years imprisonment penalty for sexual assault is set by Parliament for the Court to impose on the most serious offenders. Offenders do not normally get the maximum penalties.
Sexual intercourse is where there is any kind of penetration of the genitalia (vagina or anus) by any part or body of another person. Sexual intercourse includes cunnilingus, and it also includes placing a penis into the mouth of another person.
For sexual assault charges, the prosecution has the responsibility to prove in court that you committed the offence. This requires the prosecution to prove, beyond reasonable doubt, each of the following elements of the charge:
- You had sexual intercourse with the victim; and
- The victim didn’t consent; and
- You knew the victim didn’t consent
What are the Common Defences in Sexual Assault Cases?
The law says that you will be not guilty of sexual assault in NSW if any one or more of the below apply to you:
- No Sexual Intercourse: If you didn’t actually have sexual intercourse with the victim. Evidence that can go towards proving this in court includes an absence of your DNA in any DNA evidence that the police end up gathering. However, the longer the delay in the sexual assault complaint, the less affect this will have.
- You had Reasonable Grounds to Believe there Was Consent: you will be not guilty if the grounds for holding the belief that the victim consented was reasonable in the circumstances of the case. This is where the jury believe that a reasonable person in the accused shoes would have formed the same belief as the accused did.
In sexual assault cases, the prosecution often tries to prove that the accused knew there was no consent. The prosecution tries to do this by establishing that the accused was ‘reckless’ as to whether there was consent.
You can be ‘reckless’ as to whether the victim consented to sexual intercourse if either one of the following can be proved in court:
- You had sexual intercourse without caring if the victim consented; or
- You turned your mind to the possibility that the victim wasn’t consenting but continued anyway; or
- You treated the issue of whether the victim consented, in your mind, as irrelevant by not even turning your mind to it.
The prosecution will try to prove evidence as to whether you even took any steps to even figure out whether the victim was consenting.
What Happens If the Alleged Victim Didn’t Resist the Sexual Intercourse?
Where the alleged victim didn’t resist the sexual intercourse, the law doesn’t allow the jury to presume that there was consent only by that reason alone.
However, the lack of any resistance combined with other features of a sexual assault case may be enough for a Jury to have a doubt about the issue of consent.
Can I Be Guilty If the Alleged Victim Delays Making a Complaint of Sexual Assault?
Many victims of sexual assault make delayed complaints for various reasons.
Significantly, research suggests that there’s usually a longer delay in complaint where the victim and defendant are related.
However, sexual assault victims do delay in making complaints to police for numerous very understandable reasons, including guilt, shame, fear, not wanting people to know or not wanting change in their life circumstances.
In sexual assault trials in court, delay in complaint can significantly weaken a prosecution case in many ways, for example, it can discredit the alleged victim, and it eliminates the opportunity for police to obtain DNA evidence that may otherwise be able to link the accused person to the alleged victim.
Delay in complaint also creates the possibility of concoction or contamination in the evidence which can also significantly weaken the prosecution case.
The longer the delay in making the complaint, the weaker the police case can be.
The High Court in the case of Crofts v The Queen (1996) 186 CLR 427 said, “the delay may be so long so inexplicable, or so unexplained that the jury could properly take it into account in concluding that, in the particular case, the allegation was false.”
Legislation has stepped in to ensure that a jury wont simply make an assumption that the alleged victim’s allegation is false due to delay in complaint. The law also requires the Judge to inform the jury in sexual assault trials that there may be good reasons why a victim may hesitate in making or refrain from making a complaint. This is reflected in section 294 of the Criminal Procedure Act 1986 (NSW).
Can the Alleged Victim’s Past Sexual Reputation or Conduct Be Used in Court?
Normally, the alleged victim’s past sexual behaviour cannot be used as evidence in court.
In some circumstances, the alleged victim’s past sexual conduct can be used as evidence in court, only in the following circumstances, under section 293 of the Criminal Procedure Act 1986 (NSW):
- Where the alleged victim and you were, at the time, in a relationship; or
- Where the alleged victim and you were, at the time, in a recent relationship; or
- Where the alleged sexual assault and the new evidence that you want to produce as to the alleged victim’s past sexual activity or experience coincided at least close to each other, and the past sexual activity is part of a connected set of circumstances of the sexual assault allegation.
Feel free to call our team if you have further questions on this topic. We have specialist sexual assault lawyers Sydney, Parramatta and Liverpool offices who offer a free first consultation.