The Court of Appeal is considering whether to allow something it has never done before. The Crown wants permission to re-try a man found not guilty of raping and murdering his 10-year-old niece who was living at his home.
It would be the first time a murder acquittal has been reversed.
George Gwaze left the court today looking solemn, a far cry from triumphant scenes last year when he walked free, acquitted of raping and murdering his niece Charlene Makaza.
The Crown says "bombshell" evidence misled the jury, and it wants a re-trial.
Charlene died soon after being found in a pool of diarrhoea with internal injuries. It was discovered she had HIV, and the defence argued that caused her death.
But the Crown maintained Mr Gwaze raped and suffocated her, and was acquitted only because the jury relied on last-minute hearsay evidence that came from a witness who said a South African doctor told him Charlene's symptoms sounded similar to those of children in Africa who'd died naturally from AIDS.
"We were getting third-hand a report from a professor as to symptoms that were exhibited without any additional information," says prosecutor Brendan Horsely.
One of the appeal judges described that as extraordinary, because the doctor had never meant his comments were to be used in a court, and later recanted.
"Subsequently his caution becomes justified, and he says, 'No, I've got it wrong,' and the jury doesn't know what the truth of the matter is," says Justice Grant Hammond.
The Crown argues because the original judge endorsed the evidence, the jury relied on it over New Zealand expert opinion that the girl was raped and murdered.
The defence says a retrial is not appropriate and would be unfair on Mr Gwaze.
The Court of Appeal judges have retired to decide who is right.
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