Photo: Contributed

A Kelowna woman says a delivery driver sexually assaulted her during a May 2021 delivery. The driver denies the allegation and says she put her phone number in his phone and asked him to text her. A jury is expected to begin deliberations in the case Thursday.

All of the Crown and defence evidence has now been presented to the jury in Hamid Al Dergham's sexual assault trial, which began last Thursday. Al Dergham is accused of groping a woman's crotch and breast while trying to kiss her during a Skip the Dishes order in downtown Kelowna on the evening of May 3, 2021.

The woman, whose identity is protected under a publication ban, testified last week that Al Dergham delivered her McDonald's order and sat down beside her on her patio on the evening in question, just before 9 p.m. She said they exchanged small talk for a few minutes, before Al Dergham reached for her crotch, attempted to kiss her neck and mouth and grabbed her right breast. She said before he left, he told her he wanted to return to her home later that night after he was done working.

The woman spoke to her close friend that evening about the alleged assault and then left to spend the night at another friend's home, as she was worried about Al Dergham returning.

Al Dergham, through an interpreter, took the stand in his own defence earlier this week and denied the allegations. He's from Syria, and says he speaks very little English.

Following the alleged assault, Al Dergham texted the woman through WhatsApp through the night, at 12:08 a.m. and 1:23 a.m., asking for photos of the woman and asking to come over.

The woman responded the next afternoon, telling him to stop messaging her and “I ordered food, not to be sexually assaulted.”

Al Dergham responded: “I'm sorry, it didn't happen anymore.”

He told the jury earlier this week that he had used a translator app on his phone to message the woman, and he had meant to say “Sorry, this will not happen again.”

While Al Dergham testified he was apologizing for messaging her, the Crown believes his response is an apology, and an admission, to the sexual assault.

Al Dergham says the woman put her phone number in his phone when he delivered the food and asked him to message her. He claims the woman had told him she was divorced and asked him for help. While he didn't know exactly what type of help, he assumed she may have meant help with gardening or lifting heavy objects.

The woman testified she's not divorced, and Crown prosecutor Catherine Gagnon said his story doesn't hold water.

“Does it make sense to you, members of the jury, that she would ask a total stranger delivering her food, for his help? Ask yourself if that's common sense,” Gagnon said. “The Crown doesn't find that Mr. Al Dergham's story is consistent with common sense.

“Let's say that you, members of the jury, accept his proposal that she asked him for help. If you were asked by a total stranger for help, and you were provided with their phone number, would you text them at 12:08 a.m., 1:22 a.m., ask yourself that.”

The woman previously testified she assumed Al Dergham had gotten her phone number through the Skip the Dishes app, and she adamantly denied she ever gave him her number. She said previous Skip the Dishes drivers had called her when they couldn't find her location and she assumed drivers are given customers' numbers for that reason.

But Al Dergham said he was only sometimes given a customer's phone number through the app, and he says he never had access to the woman's number until she entered it into his phone.

Crown prosecutor Gagnon also alleged Al Dergham has not been entirely truthful about how little he understands English. She referenced an unrelated 911 call Al Dergham had previously made where he was able to converse in broken English with a dispatcher.

When asked about this 911 call, Al Dergham testified he hadn't needed to use a translator app in that phone call because he knew what questions the dispatcher would ask.

“The fact that he knew in advance what the dispatcher would ask of him when calling 911 on May 22, 2021, and that he learned all the questions in advance in his English course is ridiculous,” Gagnon said. “How could he possibly know in advance all the questions that would be asked of him before calling 911?”

Justice Shelley Fitzpatrick is expected to make her final charge to the jury Thursday morning, after which the jury will begin deliberations.

Skip the Dishes never responded to Castanet's inquiry last week about whether Al Dergham remains employed by the company. Al Dergham is currently not in custody.