The Supreme Court has quashed the acquittals of Christchurch man George Gwaze and ordered a new trial on charges alleging he sexually violated and murdered his 10-year-old niece.
The court, in a decision released today, said a substantial miscarriage of justice had occurred at Gwaze's High Court trial in May 2008 over the evidence admitted from a South African medical expert.
Gwaze was found not guilty of the sexual violation and murder of his niece, Charlene Makaza.
Charlene, who lived with her extended family in Christchurch after being orphaned in Zimbabwe, was found unresponsive in her bed on January 6 2007, and later died.
The Crown said Gwaze suffocated or strangled his niece during sexual violation.
Medical evidence was given that damage to Charlene's genital and rectal areas indicated sexual assault.
But the defence said the damage was from an infection that resulted from her having contracted HIV.
The Crown's appeal was based on "hearsay evidence" of South African paediatric surgeon Heinz Rode, called by the defence late in the trial.
He did not appear but his comments were admitted, including that he had seen HIV children with symptoms similar to Charlene's who had deteriorated suddenly and died.
The comments were put to Crown witnesses in cross-examination. They were relied upon in the case put to the jury by the defence and were treated as important by the High Court judge in his summing up.
The Crown appealed the admission of the evidence, saying a miscarriage of justice had occurred.
The Court of Appeal held that Prof Rode's comments should not have been admitted at trial, but by a majority ruled that court held that the error was not one of law, but fact. On that basis it dismissed the appeal.
The Supreme Court agreed to hear the matter and today said the admission of evidence was an error of law.
It said the comments by Prof Rode did not amount to an opinion that the symptoms displayed by Charlene were comparable to those observed in the HIV children.
It said the comments were accordingly irrelevant to the issue of cause of death and should have been excluded under the Evidence Act.
"We agree that the error in admission of the evidence amounted to a mistrial and occasioned a substantial miscarriage of justice on the trial....
"Although there were other planks to the defence case, cause of death was key issue in the trial," said Chief Justice Dame Sian Elias, who heard the appeal with Justices Peter Blanchard, John McGrath and Bill Wilson.
"The irrelevant, unreliable and helpful hearsay opinion was used to great effect, as is clear from the defence address and the judge's summing up," she said.
She said there was no proper basis upon which the Court of Appeal could have declined to order a new trial.
"The circumstances that lead us to that conclusion are the seriousness of the alleged offending and the opinion now available from Professor Rode that makes it clear that he does not support the defence contention at trial as to cause of death and the reasons for the symptoms displayed by Charlene."
NZPA