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R v Gwaze

R v Gwaze

Case [2009] NZCA 430 24 September 2009

Appeal

Admissibility of Evidence

Hearsay

Expert Evidence

Miscarriage of Justice

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA90/2009
[2009] NZCA 430
THE QUEEN
v
GEORGE EVANS GWAZE
Hearing:16 July 2009

Court:William Young P, Hammond and Baragwanath JJ
Counsel:B J Horsley and T S Epati for Crown

J H M Eaton and C Gallavin for Respondent

Judgment:24 September 2009 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS
·     WILLIAM YOUNG P  [1]
·     BARAGWANATH J  [128]
·     HAMMOND J (DISSENTING)  [195]
WILLIAM YOUNG P
Table of Contents

Para No

·     INTRODUCTION  [1]
·     FACTUAL BACKGROUND  [3]
·     THE COURSE OF EVENTS BETWEEN 14 – 16 MAY 2008  [19]
·     THE SUBSEQUENT COURSE OF THE TRIAL  [31]
·     CROWN APPEALS UNDER SS 380 AND 382: THE PRINCIPLES  [36]
·          CROWN APPEALS GENERALLY  [36]
·          SECTIONS 380 AND 382  [41]
·          THE ORIGINS OF SECTIONS 380 AND 382 AND THEIR RELATIONSHIP WITH
      S 385  [43]
·          PROSECUTION APPEALS UNDER THE SUMMARY PROCEEDINGS ACT 1957          [52]
·          PROSECUTION APPEALS UNDER S 381A OF THE CRIMES ACT  [54]
·          THE NEW ZEALAND CASES ON SS 380 AND 382  [56]
·          PRACTICE IN OTHER JURISDICTIONS  [60]
·          PULLING THE THREADS TOGETHER – A PRINCIPLED APPROACH TO CROWN
       APPEALS  [68]
·     THE QUESTIONS POSED BY THE CASE STATED  [79]
·     FIRST QUESTION: “WAS I CORRECT TO ADMIT INTO EVIDENCE THE HEARSAY
STATEMENTS OF PROFESSOR RODE?”  [81]
·          OVERVIEW  [81]
·          A STEP BY STEP APPROACH TO THE ADMISSIBILITY OF THE DISPUTED
       EVIDENCE: RELEVANCE  [82]
·          A STEP BY STEP APPROACH TO THE ADMISSIBILITY OF THE DISPUTED
       EVIDENCE: UNFAIR PREJUDICE  [85]
·          A STEP BY STEP APPROACH TO THE ADMISSIBILITY OF THE DISPUTED
       EVIDENCE: THE HEARSAY TEST  [88]
·          A STEP BY STEP APPROACH TO THE ADMISSIBILITY OF THE DISPUTED
       EVIDENCE: THE SUBSTANTIAL HELPFULNESS TEST  [94]
·          ADDITIONAL COMMENTS  [96]
·          WAS THE RULING WRONG IN LAW?  [99]
·     SECOND QUESTION: “WAS I CORRECT NOT TO ABORT THE TRIAL AS REQUESTED
BY THE CROWN ON 16 MAY?”  [109]
·     THIRD QUESTION: “WAS I CORRECT IN RULING THAT DR MEATES-DENNIS
SHOULD NOT BE RECALLED TO HAVE THE HEARSAY EVIDENCE ATTRIBUTED TO
PROFESSOR RODE PUT TO HER?”  [115]
·     CONCLUDING COMMENTS  [118]
·     DISPOSITION  [127]
Introduction
[1]       During April and May 2008 George Gwaze was tried in the Christchurch High Court before Chisholm J and a jury on two counts of sexual violation and one count of murder. At the end of the trial and after a short retirement, the jury found him not guilty on all counts.
[2]       Between 14 and 16 May, the Judge was required to address an admissibility issue which he eventually resolved in favour of the defence. As well, he declined to abort the trial as requested by the Crown. Associated with all of this, the prosecutor invited the Judge to reserve three questions for the opinion of this Court. Some months after the verdicts – a delay to which I will refer shortly – the Crown requested…

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.

Continue reading R v Gwaze

Details

AGLC: R v Gwaze [2009] NZCA 430
Case: [2009] NZCA 430
Decision Date: 24 September 2009

CaseChat Overview and Summary

George Gwaze was acquitted of the murder and sexual violation of Charlene Makaza, a 10 year old girl, on 11 June 2008. The Crown appealed against the acquittals, on three questions of law reserved by the trial judge, Chisholm J. The appeal was dismissed by a majority of the Court of Appeal. Chisholm J had admitted hearsay statements made by Professor Rode, a South African paediatric surgeon, to the Crown's expert, Professor Beasley, which suggested that Charlene's injuries and death could have been caused by a natural progression of HIV. The Crown argued that Chisholm J should not have admitted Professor Rode's hearsay evidence into evidence, should have aborted the trial to obtain a full report from Professor Rode, and should have recalled Dr Meates-Dennis, a Crown expert, to be cross-examined on Professor Rode's hearsay evidence. The Court of Appeal held that Chisholm J's ruling on the admissibility of Professor Rode's hearsay evidence was a factual error, and not a legal error, and thus the appeal against that ruling could not succeed. However, it held that the other two rulings were legal errors, but that the appeal against them should not succeed, because the Court was not satisfied that a retrial would result in a conviction.

Orders