IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO:  HAC 19 of 2017

BETWEEN:			STATE																	   PROSECUTION

AND:				ERONI RATUDOI
ACCUSED PERSON
		
Counsel:		 Ms. A. Vavadakua for State 		
			 Ms. S. Devi with Co- Counsel Ms. K. Marama for Accused 

DATE OF HEARING:			11th February 2019
DATE OF CLOSING SUBMISSION:	12th February 2019
SUMMING UP:				12th February 2019
JUDGMENT:				12th February 2019 

JUDGMENT
1.		The name of the complainant is suppressed. 
2.		The accused is being charged with one count of Rape, contrary to Section 207 (1) (2) (a) 	and (3) of the Crimes Act and four counts of Rape, contrary to Section 207 (1) and (2) (a) 	of the Crime Act. The particulars of the offences are that; 

FIRST COUNT
Representative Count
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Act 2009.
Particulars of Offence
ERONI RATUDOI, between 01 January 2012 to 31 December 2012, at Savusavu in the Northern Division, with his penis, penetrated the vagina of A.B., a child under the age of 13 years.

SECOND COUNT
Representative Count
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009.
Particulars of Offence
ERONI RATUDOI, between 01 January 2014 to 31 December 2014, at Savusavu in the Northern Division, penetrated the vagina of A.B., with his penis, without her consent.  

THIRD COUNT
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009.
Particulars of Offence
ERONI RATUDOI, between 01 November 2015 to 30 November 2015, at Levuka in the Eastern Division, penetrated the vagina of A.B., with his penis, without her consent.  

FOURTH COUNT
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009.
Particulars of Offence
ERONI RATUDOI, between 01 December 2015 to 24 December 2015, at Savusavu in the Northern Division, penetrated the vagina of A.B., with his penis, without her consent.  

FIFTH COUNT
Representative Count
Statement of Offence
	RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009.
Particulars of Offence
ERONI RATUDOI, between 23 April 2016 to 28 August 2016, at Savusavu in the Northern Division, penetrated the vagina of A.B., with his penis, without her consent.  
3.		The hearing commenced on the 11th of February 2019 and concluded on the same day. 	The prosecution adduced the evidence of the complainant. At the conclusion of the 	prosecution case, the learned counsel for the defence made a submissions pursuant to 	Section 231 (1) of the Criminal Procedure Act, stating there are no evidence to 	establish that the accused has committed the first, second, fourth and fifth counts as 	charged. The learned counsel for the prosecution also conceded to this submission. 	Accordingly, I found the accused not guilty to the first, second, fourth and fifth counts as 	charged in the information and acquitted him from the same. 
4.	 	The accused then gave evidence for the defence. The medical examination report of the 	complainant, which was made on the 17th of March 2017, was tendered as prosecution 	exhibit one with the consent of the defence. The learned counsel for the prosecution and 	the defence then made their respective closing addresses. Subsequently, I made my 	summing up. 
5.		The three assessors in their unanimous opinions found the accused guilty to the offence. 
6.		Having carefully taken into consideration the evidence adduced during the hearing, the 	respective closing addresses of the counsel, the summing up and the opinions of the 	assessors, I now proceed to pronounce my judgment as follows. 
7.		The prosecution alleges that the accused penetrated the vagina of the complainant without 	her consent while they were staying at the Royal Park Hotel in Levuka. The accused 	denies the allegation, claiming that he has been suffering from erectile dysfunction 	therefore, he was not able to penetrate into the vagina of the complainant. 
8.		In view of the evidence presented by the prosecution and the defence, the main dispute is 	whether the accused actually penetrated into the vagina of the complainant.
9.		The accused in his evidence said that he has been suffering from this erectile dysfunction 	since 2012. However, there is no medical report to confirm about this physical condition 	of the accused. The accused said that he visited the Savusavu Hospital, but they do not 	have specialist doctor who could properly treat this erectile dysfunction. The accused had 	referred to the Labasa Hospital after he was charged for this offence, in order to check 	this physical condition. The accused said the special doctor who could treat this condition 	was not at the hospital and a normal doctor attended to him. The said doctor has told him 	that he may be suffering from erectile dysfunction. If the doctor found that the condition 	of the accused demands the attention of a special doctor, he would have definitely 	referred the accused to such a specialist doctor. 
10.	The accused claims about a medical condition which has prevented him engaging in 	sexual intercourse. Such a medical condition can only be confirmed by a doctor of 	medicine. The evidential burden of the accused to establish his defence, requires the 	accused to present or point some evidence that could suggest a reasonable possibility that 	he has been suffering from erectile dysfunction during the month of November 2015. In 	view of these reasons, I do not find the evidence of the accused has suggested that there 	was a possibility that the accused has been suffering from erectile dysfunction during the 	month of November 2015. Hence, I refuse to accept the evidence of the defence. 
11.	The complainant in her evidence explained the dominated nature of the accused over her 	and her family. At one occasion, he has chased the family, including the complainant, out 	of the house on the ground that a mobile phone went missing. The complainant said that 	she did not like what he did and told him about it. I notice the demeanour of the 	complainant when she gave evidence. It was really difficult for her to recall those events 	where her own father had allegedly raped her. She broke down many times while giving 	evidence. Considering these reasons, I accept the evidence of the complainant as reliable, 	credible and truthful evidence. 
12.	Accordingly, I find that the prosecution has successfully proven beyond reasonable doubt 	that the accused has inserted his penis into the vagina of the complainant without her 	consent as charged under the count three. Therefore, I do not find any cogent reasons to 	disagree with the unanimous opinion of the assessors. 
13.	In conclusion, I find the accused guilty for the count of rape, contrary to Section 207 (1) 	and (2) (a) of the Crimes Act, as charged under count three and convict for the same 	accordingly. 

R.D.R.T. Rajasinghe
Judge

At Labasa
12th February 2019

Solicitors
Office of the Director of Public Prosecutions for the State
Office of the Legal Aid Commission for the Accused