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IN THE SUPREME COURT OF NEW ZEALAND
SC 93/2009 [2010] NZSC 52
THE QUEEN
v
GEORGE EVANS GWAZE
Hearing:25 February 2010
Court:Elias CJ, Blanchard, McGrath and Wilson JJ
Counsel:D B Collins QC Solicitor-General, B Horsley, J Kerr and R A Rose for Crown J H M Eaton and C Gallivan for Respondent
Judgment:17 May 2010
JUDGMENT OF THE COURT
A The appeal is allowed and the acquittals are quashed.
BA new trial is directed under s 382(2)(b) of the Crimes Act 1961.
CA certified direction for new trial will issue to the Registrar of the High Court at Christchurch with the consequences provided for by ss 380(4) and 382(4) of the Crimes Act.
REASONS
(Given by Elias CJ)
[1] The principal and important question raised by the appeal is whether an error of law is made when a judge in a criminal trial admits evidence that ought to have been excluded in application of rules of exclusion contained in the Evidence Act 2006. Section 380(1) of the Crimes Act 1961 permits a trial court to reserve “any question of law arising either on the trial or on any of the proceedings preliminary, subsequent, or incidental thereto” for the opinion of the Court of Appeal. On case stated under s 380, the Court of Appeal was unanimous in concluding that evidence admitted at the trial of the respondent, Mr Gwaze, ought to have been excluded.[1] William Young P and Hammond J considered it was irrelevant (requiring its exclusion under s 7 of the Evidence Act). All Judges considered that it failed to meet the standards required for the admission of hearsay and expert opinion (under ss 17, 18, 23 and 25). The President also considered that the prejudicial effect of the evidence outweighed its probative value (requiring its exclusion under s 8). These are conclusions with which we indicate our agreement in what follows, while differing with some aspects of the reasoning in the Court of Appeal. Despite finding that the evidence was wrongly admitted and had caused a substantial miscarriage of justice, a majority of the Court of Appeal, William Young P and Baragwanath J, held that whether the statutory tests for admissibility had been satisfied turned on inferences of fact and evaluation of fact and degree. As such, they considered that failure to meet the statutory criteria did not give rise to any question of law able to be addressed on the case stated. From this view, Hammond J dissented. For the reasons to be given, this Court overturns the decision of the majority of the Court of Appeal on the point. We are of the view that the evidence was admitted in error of law.
[2] As a result, it is necessary to consider the application of s 382 of the Crimes Act which provides for the powers of the Court of Appeal on…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Gwaze [2010] NZSC 52
Case
[2010] NZSC 52
Decision Date
CaseChat Overview and Summary
The appeal is against the acquittal of George Evans Gwaze, who was charged with the murder and sexual violation of his ten year old niece, Charlene Makaza. The appeal was brought by the Crown, which sought a direction for a new trial under s 382(2)(b) of the Crimes Act 1961 on the basis that an error of law had been made in the admission of hearsay evidence and that a mistrial had resulted. The Supreme Court held that the error in the admission of the evidence was one of law and that the wrongful admission of evidence had occasioned a mistrial and constituted a substantial miscarriage of justice. A new trial should be directed. The Court rejected the view that the procedure for appeal on questions of law reserved under s 380 of the Crimes Act envisages any overlay of additional balancing in the case of acquittal, in recognition of a “double jeopardy principle”. The procedure for appeal on questions of law reserved under s 380 explicitly applies to acquittals and envisages the outcome of a new trial, should the Court of Appeal take the view that the conditions of s 382(2) are met. In such case there is no question of the accused being in “double jeopardy” because the first verdict is provisional only and the accused has not been “finally acquitted” within the meaning of the restatement of the rule against double jeopardy in s 26(2) of the New Zealand Bill of Rights Act 1990.