A Sydney jury has found a pizza shop worker guilty of aggravated sexual assault charges against a teenager.
It took the twelve-person jury just two hours to find Ricardo Audish guilty of three counts of aggravated sexual assault in company.
Two underage boys who cannot be named for legal reasons were also involved in the attack in October 2016.
41-year-old Audish was refused bail following the guilty verdicts and will remain in custody until his sentencing on 7 May 2021.
What Happened?
At the time of the incident the victim was 18 years old.
Earlier in the evening, the woman had consensual sex with her boyfriend in a toilet cubicle. He then told her, "all the other boys want to have sex with you now", to which she replied "hell no".
The Crown Prosecutor submitted that this was not a question but a statement to her. She claimed that Audish and his co-accuseds acted as a joint criminal enterprise and had planned to commit the sexual assault offences beforehand.
After having sex with her boyfriend, the victim began pulling up her underwear in the toilet cubicle when another male entered and offered her a bong.
The prosecutor suggested that this was a deliberate act that showed the men knew she was not consenting. However, there were no drug supply charges laid.
The victim gave evidence that the effect of the cannabis was unlike anything she had ever felt before. Her head began spinning and she felt dizzy and was visibly shaking.
After consuming the cannabis, she was led by Audish to the back of the pizza shop where he worked.
She said that Audish asked if she was OK, but her memory became patchy after this. The next thing she remembered was leaning over a stack of chairs while he had sexual intercourse without consent with her.
"The accused was the boss so he went first," the Crown says, while the other men took turns according to their age.
CCTV footage from inside the pizza eatery showed her sure-footedly walking and sometimes jogging upstairs before the incident.
However, after the incident, the footage showed her walking slowly, stumbling and leaning on a pole for 17 minutes to regain balance.
She was found by a stranger, disorientated by the side of the road. Ambulance officers were called who took her to hospital. There she detailed what had happened, telling staff, "they all took turns in me."
Different Stories
There was evidence that Audish made up three different versions of events.
When he was initially confronted by Police in relation to the sexual assault charges, Audish claimed he was not working at the time of the incident. But this was rebutted by co-worker's police statement.
There was also evidence that Audish had asked that co-worker to lie about his whereabouts.
Later his version changed and he said the pair did not have sexual intercourse. However, this was rebutted by DNA evidence of his semen.
After this, a third story emerged that the sex was consensual. The 41-year-old claimed that the complainant told her boyfriend she wanted to have sex with the pizza restaurant worker.
The Crown submitted to the jury that they "would not believe a word of the accused".
Guilty of Aggravated Sexual Assault Charges
Following the jury's verdict at Downing Centre Court, Audish's bail application lawyers argued that Audish should be bailed based on a serious heart condition which requires a medical procedure in April 2021.
But the Crown said the charges were so serious that there was a real incentive for him not to appear before the court if released.
Judge David Arnott agreed with the prosecution, saying that even though Audish had complied with his bail conditions for four years following the incident, there was an unacceptable risk that he may not appear at the sentencing hearing.
As part of his decision, Judge Arnott made particular mention of the evidence that Audish had approached the victim two months after she complained to police.
Ricardo Audish is due to be sentenced on 7 May 2021 - the day after Jarryd Hayne's sexual assault sentencing hearing.
Aggravated Sexual Assault Charges Sentencing
Section 61J of the Crimes Act 1900 (NSW) sets out the definition of aggravated sexual assault as engaging in sexual intercourse with another person without their consent, and at the time a circumstance of aggravation existed.
You can fight an aggravated sexual assault charge in two ways. Firstly, the prosecution must prove beyond reasonable doubt:
- You engaged in sexual intercourse with the complainant, and
- The complainant did not consentto the sexual intercourse, and
- You were aware (or should have been aware) that the complainant was not consenting; and
- That a circumstance of aggravation existed at the time of the sexual intercourse.
If any of these elements are not made out, then you can be found 'not guilty'.
Community attitudes have changed significantly since the #metoo movement which has made fighting such allegations more difficult than ever before. You can read about some recent cases where accused persons have been found 'not guilty' of sexual assault offences here.
Our specialist sexual assault lawyers have a proven track record of breaking apart prosecution cases by meticulously analysing the statements of alleged victims and cross-examining them to ensure false allegations are exposed. Contact Astor Legal on (02) 7804 2823 or email us at info@astorlegal.com.au to speak to a senior lawyer today.
Secondly, you can rely on one of the defences to aggravated sexual assault charges:
- Consent: We can argue that the alleged victim consented to the sexual intercourse. There are however some situations where this cannot be used as a defence (for example if the alleged victim was too intoxicated to consent). See our page on consent.
- Honest and reasonable mistake: You held an honest and reasonable belief that the alleged victim was consenting.
- Identification: The Crown cannot establish that you were responsible. We have a number of experts (such as DNA, fingerprint, CCTV and intoxication experts) who are able to cast doubt on identification in certain situations;
- Automatism: This is where the offending was involuntary. This can sometimes involve sleep disorders.
- Duress: You were forced to commit the offence
- Necessity: the commission of the offence was necessary in the circumstances
- There was a proper medical purpose for the sexual intercourse;
- A circumstance of aggravation cannot be proved
- If you are charged with 'Aggravated sexual assault in company' and the prosecution cannot prove that you were in company of at least one other person.
Should your criminal defence lawyers be able to establish one of the above defences, you will be found 'not guilty'.
The following are circumstances of aggravation:
- at the time of, or immediately before or after, the commission of the offence, you intentionally or recklessly inflicted actual bodily harm on the alleged victim or any other person who was present or nearby;
- at the time of, or immediately before or after, the commission of the offence, you threatened to inflict actual bodily harm on the alleged victim or any other person who was present or nearby by means of an offensive weapon or instrument;
- you were with another person or persons;
- the alleged victim was under the age of 16 years at the time of the offence;
- the alleged victim was under your authority;
- the alleged victim had a serious physical disability or cognitive impairment;
- you broke into and entered any dwelling-house or other building with the intention of committing the offence or another serious indictable offence;
- you deprived the alleged victim of his/her liberty for a period before or after the offence
Sexual intercourse is defined in Section 61HA of the Crimes Act 1900 (NSW) as:
- penetration of the genitals of a female by the body of another person or an object manipulated by another person; or
- Penetration of the anus or mouth of any person by the body of another person or an object manipulated by another person; or
- Cunnilingus (oral sex).
The maximum penalty for aggravated sexual assault is 20 years imprisonment. There is also a Standard Non-Parole Periodwhich is 10 years imprisonment.
Looking at statistics since 2018, it is no surprise that 100% of persons found guilty of this offence were sentenced to full-time imprisonment. The length of imprisonment ranges from 3 years to over 20 years.
Being found guilty of this offence will result in a term of imprisonment. As such, you should speak to Australia's best aggravated sexual assault lawyers to give you the best defence possible.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
