State v Ratudamudamu - Judgment [2015] FJHC 866; HAC204.2014 (4 November 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. 204of 2014

STATE

V

EMORI RATUDAMUDAMU

Counsel: Ms K. Semisi for State
Ms P. Salele for the Accused

Dates of hearing: 2,3 and 4 November 2015
Date of Judgment: 4 November 2015

JUDGMENT

The accused was tried before me and three assessors on the following Counts:

FIRST COUNT
(Representative Count)
Statement of Offence

RAPE: Contrary to section 207(1) and (2) (a) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Emori Ratudamudamu between the 1st day of June 2014 and the 18th June 2014 at Suva in the Central Division had carnal knowledge of Edith (not her real name), a six year old girl.

SECOND COUNT
(Representative Count)
Statement of Offence

RAPE: Contrary to section 207 (1) and (2)(b) and (3) of the Crimes Decree No. 44 of 2009

Particulars of Offence

Emori Ratudamudamu between the 1st day of June 2014 and the 18th June 2014 at Suva in the Central Division penetrated the vagina of Edith (not her real name), a six year old girl, with his finger.

THIRD COUNT
(Representative Count)
Statement of Offence

RAPE: Contrary to section 207(1) and (2)(b) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Emori Ratudamudamu between the 1st day of June 2014 and the 18th June 2014 at Suva in the Central Division penetrated the vagina of Edith (not her real name), a six year old girl, with his tongue.

2. In the unanimous opinions of the three assessors, he was found guilty of Counts One and Two and in respect of Count three of the lesser crime of Sexual Assault.

3. The main witness for the Prosecution was the young girl complainant "Edith", 6 at the time of the offences but 7 years old now. I questioned her understanding of the meaning of truth and lies. She understood the difference and promised to tell me the truth.

4. Edith gave logical and confident evidence about the events of the 17th June 2014 and described in her own terms the invasion of her "mimi" by finger and penis of the accused who was living in a de facto relationship with her mother. She was unshaken in cross examination and was noticeably considering her answers well before answering. I believed her evidence.

5. Edith's mother gave evidence which was rather unsatisfactory in its delivery because it was quite apparent that she was not very intelligent and was well out of her comfort zone. Importantly however, she did confirm the details of Edith's account which Edith had divulged to her after she had fallen ill at school.

6. The medical evidence was extremely helpful in that it supported the consistent history related to the Doctor and it was his opinion that the lacerations to Edith's vagina were consistent with sexual abuse within the previous 7 days.

7. The accused gave evidence under oath. He stated flatly that Edith was not telling the truth: the abuses alleged never happened.He then went on to detail the deterioration of his relationship with Edith's mother, which came to a head when he brought another woman into the house to live. Because of that bad relationship, he said, Edith's mother had set out to frame him by having his daughter say that she had been abused by him.

8. The accused called a witness, Waisea, who was his cousin and shared the house with him. Waisea told the Court that Edith's mother had said to him, the day after the offences, that she was going to frame the accused.

9. This witness of the accused lacked credibility. He admitted that he had discussed his evidence with the accused and admitted that he was in Court in order to assist the accused. I did not believe him.

10. The accused himself was evasive and selective in the evidence he gave and I preferred the evidence of the 7 year old to his.

11. I am aware that the accused does not have to satisfy me on any issue and that it is the prosecution evidence that must be proved to the required standard. I am satisfied that the Prosecution has proved beyond reasonable doubt that the accused raped Edith at least once with penisin June 2014, that he raped her at least once by finger in June 2014 and that he sexually assaulted her by licking her vagina at least once in June 2014.

12. The third count of rape by tongue was not made out by the prosecution evidence, there being no evidence of penetration. Pursuant to section 162(1)(f) I directed the assessors that they could find the alternative of sexual assault which they indeed did.

13. I direct myself on my own Summing Up and I agree with the assessors' opinions. I find the accused guilty of Rape in Count One, rape in Count 2 and sexual assault as a lawful alternative to Count 3. I convict him of those counts accordingly.

14. That is the Judgment of the Court.

P.K. Madigan.
Judge

At Suva
4 November, 2015