R v Gwaze
[2009] NZCA 430
•24 September 2009
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA90/2009
[2009] NZCA 430THE 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 the Judge to state a case for the opinion of this Court on those three questions. The procedure invoked by the Crown is provided for in ss 380 and 382 of the Crimes Act 1961. The Judge having stated a case, we are now required to deal with what in substance is a Crown appeal against the acquittals.
Factual background
[3] Charlene Makaza died on 7 January 2007. She was then 10 years old. Both her parents had died and she and her younger sister Charmaine lived with George Gwaze and his wife, Sifiso Gwaze. The late mother of Charlene and Charmaine was the sister of Mrs Gwaze.
[4] In October 2005, Charlene and Charmaine, along with Mr and Mrs Gwaze and their three children (Maggie, Nothando and George Jnr) emigrated from Zimbabwe to New Zealand. As at January 2007, Mr and Mrs Gwaze, Nothando and George Jnr, and Charlene and Charmaine were living together in Christchurch. Maggie was living in Auckland.
[5] On Friday 5 January 2007, Charlene and Charmaine along with Nothando (who was then 20) went to a church gathering. They returned to the family home at about 10.00pm. Mr Gwaze was at home. His wife returned home from work an hour or so later. During the night Charlene slept in the same bedroom as Nothando.
[6] Mrs Gwaze awoke at around 5.45am on Saturday 6 January. She went into Charlene’s bedroom where she found Charlene lying in a pool of diarrhoea, not breathing properly and unresponsive. Charlene was taken to an after-hours surgery and then to Christchurch Hospital. Hospital tests carried out in conjunction with her treatment showed that she was HIV positive. She died in the early hours of the following morning.
[7] The Crown alleged that Charlene had been sexually assaulted and died as a result of suffocation that occurred in the course of this. There were two broad planks to the Crown case against Mr Gwaze:
(a)Charlene had injuries and developed symptoms which were consistent with sexual assault and murder; and
(b)Forensic analysis of underwear she wore on the night of 5 January revealed traces of semen which had originated from Mr Gwaze and petroleum jelly.
[8] The injuries which the Crown primarily relied on were:
(a)Radial tearing around the circumference of the anal area;
(b)Petechial haemorrhaging extending 7.5 cm into her rectal area;
(c)A complete laceration of the hymen at 9 o’clock; and
(d)Injury to the labia consisting of abrasions and swelling.
The Crown evidence at trial was that these injuries resulted from a sexual assault. If so inflicted, it is almost certain that this must have been after Charlene went to bed on 5 January.
[9] The injuries in question were described by the pathologist Dr Martin Sage in this way:
There were multiple fresh tears to the skin of the anal sphincter with a radial pattern typical of overstretch effect caused by penetration of the anus by an oversize object. The lining of the anal canal and lower rectum showed fine haemorrhages up to 75mm above the anal margin where there was an abrupt transition to entirely normal looking lining tissue. There were small patch abrasions to the perineum (the skin bridge between anus and vulva) and focal bruising to the anterior ends of the labia minora with a speckled petechial pattern but no lacerations of labia or posterior fourchette. Hymen showed a normal encircling developmental pattern and although it was intact posteriorly (6 o’clock) there was a fresh tear from central margin to the peripheral edge at 9 o’clock. There were no bruises or tears within the vaginal canal…
[10] Dr Sage also described the condition of her lungs:
Lung showed complex changes reflecting three concurrent processes. First there was pre-existing widespread disease in lung termed LIP (lymphocytic interstitial pneumonitis). This immune-related condition is a well-recognised consequence of chronic HIV infection, particularly in children. While it might limit her respiratory function to a degree in day to day activities, it was not an imminent threat to life and would not explain a sudden deterioration from being apparently well to being profoundly ill overnight. Added on top of this pre-existing, long-standing condition were two other acute (that is, sudden onset) processes. There was an overall reactive process in lung termed DAD (diffuse alveolar damage) which is a relatively non-specific response by the lung which can be caused by a wide variety of pathological insults including infection and cardiovascular shock. There was also focal evidence of apparently acute infection seen as early pneumonia.
[11] Dr Sage’s conclusions as to cause of death were as follows:
Charlene MAKAZA died at Christchurch Hospital in the early hours of 7 January 2007 as a result of multiple organ system failure consequent on global hypoxic injury. No natural cause was found to explain her sudden-onset, catastrophic hypoxia arising from a background of apparently being completely well at 11 pm on the evening of 5 January. She is now proven to be HIV positive but this does not of itself provide an adequate explanation for her catastrophic collapse.
She had ano-genital injuries that cannot be explained by any natural condition and could not conceivably be an unreported accidental injury. The injuries were highly consistent with forcible anal penetration either by a phallus or any similar smooth-surfaced inanimate object. The concurrent injury to her hymen and labial bruising infers attempted vaginal penetration or successful penetration with a smaller calibre item such as a finger or fingers, or any similar inanimate object. The anal injury was of such severity that it would inevitably have caused her intense pain and probably significant bleeding and it is inconceivable that she had sustained this injury prior to her being last reported as well and content by independent witnesses during the evening of 5 January.
The injuries indicated assault with either sexual or punitive overtones but were not of themselves a direct or imminent threat to life. They would not of themselves explain her concurrent catastrophic collapse with evidence of global hypoxia. In the light of this assault, the possibility that deliberately inflicted diminution of breathing (asphyxia) for the purpose of making her comply with the assault or to assist in concealing the act of assault must be considered as a possible cause of her collapse. My examination shows no detectable evidence of manual strangulation and no compression bruises are apparent on the face.
…
The initial working diagnosis by the doctors treating her on admission to hospital was the effects of severe infection causing cardiovascular collapse and subsequent secondary effects on internal organs especially brain and kidneys. No microbiological agent has been identified in tests taken before or after death to support this diagnosis. I have experience with previous fatal cases in this age group in which there has been a very rapid deterioration from well to critically ill over a few hours. In most cases a causative organism is detected either before death or from post mortem samples, but I have personally seen several cases where all findings point to profound sepsis but no pathogen can be defined. This means that the absence of an identified agent does not of itself entirely exclude sepsis.
Nevertheless, compared to these other cases of known overwhelming sepsis (where the causative agent was detected) and the fewer cases of presumed sepsis, this case shows very advanced hypoxic injury to brain.
By the time of her death she had very severe pathological changes in lungs, some of which could be attributed to infection, and if sepsis were still to be viewed as the major operating cause of death, then lung would be the most likely primary site of infection. However, as indicated above the major change in lung is long-standing and not a plausible explanation for her very rapid deterioration. The other two changes (diffuse alveolar damage and focal bronchopneumonia) might both be related to sepsis but might alternatively be explained by cardiovascular shock from profound inflicted hypoxia and subsequent artificial ventilation support in hospital.
For her to suffer overwhelming sepsis, evolving so quickly that she was rendered comatose and could not seek assistance for her illness from anyone else in the room or house, and thereby also preventing her from disclosing, explaining or obtaining treatment for her recent severe anorectal injury, is to my mind an improbable coincidence.
[12] The defence case was that Charlene had not been murdered but rather had died of natural causes. The injuries relied on by the Crown were either caused by medical procedures she underwent on 6 and 7 January 2005 or were associated with her death as a result of her HIV status. There was no physical evidence of asphyxiation. The semen from Mr Gwaze found on her underwear came from transference, most probably when that underwear was hand-laundered by Mrs Gwaze along with that of Mr Gwaze.
[13] The defence also made much of linked arguments associated with character, alibi and lack of opportunity. For present purposes it is sufficient to focus on Mr and Mrs Gwaze and their daughter Nothando. He is a well-qualified veterinary surgeon. In January 2007 he was awaiting his New Zealand registration and was employed as a production technician. Mrs Gwaze is also a person of good character. On Mrs Gwaze’s evidence, Mr Gwaze slept with her on the night of 5 January and did not leave the bedroom. So she gave her husband an alibi. Nothando was studying law and commerce at Canterbury University. Her evidence was that she slept in the same bedroom as Charlene on the night of 5 January. It is not easy to see how Mr Gwaze could have sexually assaulted Charlene without this coming to Nothando’s attention. Yet she was positive in her evidence that no-one had come into the room that night.
[14] One of the Crown medical witnesses was Professor Spencer Beasley. After he gave his evidence, he went to Hong Kong for a medical conference. There he had a discussion “over tea” with Professor Heinz Rode, a South African paediatric surgeon. In the course of this discussion Professor Beasley mentioned the Gwaze case. Professor Rode told him that Charlene’s symptoms as described by Professor Beasley were consistent with a group of HIV patients he had dealt with in South Africa. The group consisted of children between the ages of 8 and 10 years who had congenital HIV which resulted in them deteriorating very quickly and subsequently dying. There was deterioration in the brain and they suffered from tears radiating from the anus. Watery green coloured diarrhoea was also associated with this condition. Professor Beasley informed the officer in charge of the case of this discussion and on the morning of 14 May, the job sheet that the officer prepared (which recorded what he had been told by Professor Beasley) was made available to counsel on both sides and to the Judge.
[15] This resulted in a good deal of debate which took place between 14 and 16 May 2008. I will deal with the details shortly. For present purposes, it is sufficient to note that the Judge decided to allow the jury to hear what Professor Rode had told Professor Beasley along with a later addition (or qualification) which I will also discuss. It was not possible to obtain from Professor Rode a full opinion as to cause of death within a timeframe which the Judge regarded as acceptable and the Judge declined to abort the trial to facilitate a full investigation of the new material.
[16] I noted earlier that there was some delay between the termination of the trial and the Crown deciding to proceed with the appeal. This delay was associated with the Crown obtaining full reports as to cause of death from Professor Rode and another South African clinician, Dr Brian Eley. Mr Eaton, who appeared for Mr Gwaze at trial and before us, was critical of both the delay and of the reports being put before the Court.
[17] I understand Mr Gwaze’s concerns about delay, but realistically it was not forensically practicable for the Crown to proceed with an appeal without obtaining a full report, at least from Professor Rode. As to the post-trial reports being put in front of us, I accept that they are irrelevant to whether the Judge erred in law in admitting the evidence. But subject to the post-trial reports being verified on oath, they are relevant and admissible as to remedy (should we conclude that there was a material error of law). As will become apparent, I am of the view that there was not a material error of law. I nonetheless propose to refer to the post-trial reports. In part this is because they are essential to a full understanding of the case in the round. As well, in relation to my assessment of the admissibility ruling, I am conscious of the possibility that my knowledge of what is in the reports may have contributed to my scepticism as to the value of the hearsay evidence which was led at trial.
[18] Both Professor Rode and Dr Eley in the post-trial reports express the view that Charlene was sexually assaulted and murdered. Neither engage directly with, or seek to explain, the remarks made by Professor Rode to Professor Beasley. The drift of the reports, however, suggests that the statement that there was a group of children aged 8 – 10 years who had died of HIV and had radiating anal tears is simply wrong. They also provide rather more information than was available at trial about Charlene’s HIV status. It seems reasonably clear that her mother died of HIV/AIDS and that Charlene was born with HIV. Interestingly she was treated in Zimbabwe for HIV but this treatment did not continue after she arrived in New Zealand where she was not diagnosed as suffering from HIV until she was dying.
The course of events between 14 – 16 May 2008
[19] By 14 May 2008 the trial had reached the point where one of the clinicians who had treated Charlene, Dr Meates-Dennis, was giving evidence. Still to give evidence were Detective Johannsen and Dr Sage, the pathologist. It was at this point that difficulties arose.
[20] As noted, another Crown witness, Professor Beasley, had gone to Hong Kong for a medical conference where he had discussed the case with Professor Rode. After the discussion, Professor Beasley telephoned Detective Johannsen and told him what Professor Rode had said. This was recorded by the detective in a job sheet dated 14 May 2008:
He, [Beasley] advised me that over tea last night he had been discussing the case with his colleague [Rode] and that he had been advised by this colleague that the symptoms portrayed to him were consistent with a group of HIV patients he had dealt with in South Africa.
He stated that his colleague said that children between the ages of 8 and 10 years who had been born with HIV, had been known to suffer from congenital HIV which resulted in them deteriorating very quickly and subsequently died. Their symptoms showed deterioration within the brain and they also suffered from anal tears radiating from the anus. Watery green coloured diarrhoea was also associated with this condition.
He asked if he could show his colleague photos that he had with him of the injuries and he believed that he may also have a copy of the [post mortem] report on his laptop computer. He went on to emphasise that further information in relation to how the parents died, as well as other medical conditions that Charlene may have had would be required for a definitive answer to be given in relation to the injuries Charlene had and in the opinion given by his colleague.
(Emphasis added.)
I will refer to the italicised passage as Professor Rode’s initial comments. Of these comments, the most significant for present purposes is the reference to “anal tears radiating from the anus”.
[21] Having seen the job sheet on the morning of 14 May, the Judge adjourned the trial to provide time for Professor Rode to review the post-mortem report and photographs.
[22] There was some further discussion in court the next day (15 May) as to what should happen. It had not been possible, in the meantime, to take matters much further. It was, however, apparent that Professor Rode was arriving in Christchurch soon. I understand that at this time the proposed arrival date was Wednesday 21 May 2008 but it may be (given what the Judge was later to say) that it was actually 17 May. In any event he was going to be available within a few days to meet with counsel but was not going to be in a position to give anything approaching a full opinion. The situation, as it was on 15 May, and the available options were reviewed by the Judge in the following terms:
Discussion
[12] First, I deal with Mr Eaton’s criticism of the Crown for not seeking assistance from South African medical sources in the first place. At the moment that can only be relevant to the extent that it may help in determining the course that this trial should take in the future. I certainly do not want to be understood as either endorsing or rejecting the criticism. But I would add that it is very easy to be wise with the benefit of hindsight.
[13] The underlying objective must be to ensure that justice is achieved. That means justice for both the Crown and the defence. Ideally the evidence of Professor Rode in a considered form should be before the jury, but whether that is feasible is still up in the air. In all probability that course would involve a significant delay which would almost certainly force me to abort this trial. To my mind aborting the trial is very much a last resort, and that also seems to be counsels’ view. I am certainly not prepared to take that sort of decision at this time on the information currently available.
[14] Given the information currently before the Court the alternatives are relatively narrow:
·Complete Dr Meates Dennis’ evidence and Dr Sage’s evidence without cross-examination concerning Professor Rode’s information but with the possibility that they might need to be recalled later for cross-examination on that topic.
·Adopt the course I have just described but with defence counsel being free to cross-examine on the information currently available.
·Send the jury away for the rest of the day in the hope that accurate information can be obtained from Professor Rode’s own lips.
[15] Before indicating the course that I propose to adopt I need to record that in my view it would be impossible for the accused to receive justice if the crux of the information that has emerged thus far was withheld from the jury. By referring to the crux of the information, I am referring to the indication that children between eight and 10 who are congenitally HIV positive (if that is the right terminology) have died reasonably rapidly in circumstances where there have been radial tears to the anus and watery green diarrhoea. Even if it transpires that the South African cases differ in other respects from the circumstances surrounding Charlene’s death, that information is highly relevant and it would be for the jury to assess that information in the light of all the evidence.
[16] However, because we are dealing with hearsay evidence it is important for the evidence giving rise to any cross-examination to be as accurate and reliable as might be reasonably possible in all the circumstances. In other words, that it accurately conveys what Professor Rode told Professor Beasley. For that reason I prefer the third course of sending the jury away in the meantime so that the accuracy of the information that has been conveyed can be checked directly with Professor Rode. Of course, other information may well emerge and I am not wanting to cut off the possibility of the Crown extracting information that might reveal that there are few or no parallels between the cases in South Africa and this case.
[17] How this is to be achieved is something that I need to discuss further with counsel. Possibly the only way this can be satisfactorily achieved is by contact being made with the Professor when he arrives in New Zealand on Sunday. But that would mean delaying the trial until next week. Another alternative is for counsel to have a telephone conference with the Professor. I am afraid that I have not had an opportunity to properly consider these possibilities and I think it would be preferable for me to adjourn so that counsel can confer.
[18] If a fair and practical solution cannot be achieved I am going to be faced with aborting the trial unless, of course, Professor Rode’s timeframe can be changed. As I have said, aborting the trial would be a last resort and I am going to explore every option before I take that step.
[19] (Confers with counsel). I am considering the possibility of counsel on both sides meeting with Professor Rode when he arrives in New Zealand or, alternatively, having a telephone conference with him as soon as possible. The other possibility is finishing off the evidence of Dr Meates Dennis and Detective Johannson, [sic] but if that is not supported by counsel I will not force the issue. (Response from counsel).
Outcome
[20] The jury will be sent away until 10am tomorrow.
[21] The remaining issue is what should be reported. Although not a lot can be reported, the media will be entitled to report that the jury has been sent away and that I have heard submissions on an issue that has arisen.
[23] On the morning of 16 May, the prosecutor sent defence counsel an email which recorded events which had occurred since the Judge’s 15 May ruling. The email contained the following passage:
Shortly before 10.00pm I received a telephone call from Spencer Beasley who informed me that he had now spoken to Professor Rode. He had more further [sic] reviewed the information, and was of the view that this case may a case of sexual assault and suffocation, but still wanted to consider further and discuss with colleagues. Spencer also advised that Rode is one of 4 surgeons who deals with acute admissions in Cape town [sic].
Spencer Beasley advised that Professor Rode would be available for a meeting in Christchurch next week to discuss the case.
(Emphasis added.)
I tend to see the italicised passage as something of a qualification to Professor Rode’s initial comments, although, as will become apparent, this is not the view the Judge took. There certainly is scope for doubt as to what was meant. Indeed, by expressing the view the it may be “a case of sexual assault and suffocation”, Professor Rode could perhaps be taken as implying that this might not be so, and thus, by implication, expressing a view on cause of death.
[24] When the Court convened that morning, the Judge heard argument as to what he should do. A telephone conference with Professor Rode had not been able to be arranged. Professor Rode would, however, be available to meet with counsel following his arrival in Christchurch on what was by now established to be Wednesday 21 May. Mr Eaton was primarily concerned to avoid the trial being aborted. His position was that irrespective of whether Professor Rode’s initial comments were admitted, the trial should proceed. The Crown position was that the comments of Professor Rode were inadmissible and that the trial should be aborted.
[25] At 10.46am, the Judge ruled that: (1) he would not adjourn the trial to enable a meeting between counsel and Professor Rode, (2) he would not abort the trial and (3) the hearsay evidence was admissible. He indicated that he would give a ruling later in the day as to the scope of cross-examination. At 11.00am the trial resumed with Dr Meates-Dennis resuming her evidence, which finished just after 1.00pm.
[26] On the same morning, Detective Johannsen had another telephone discussion with Professor Beasley which resulted in Professor Beasley dictating to him, over the phone, the following statement which was recorded in a job sheet dated 16 May:
I [being Professor Beasley] gave Professor Rode the written material and photographs a few days ago. I have spoken to him on several occasions since then. He is in the process of carefully considering the information, has already spoken to one of his colleagues, but is very keen to discuss it with a couple of Aids specialists and Aids pathologists in South Africa.
On his current assessment one of them is that the appearance of the anal region could be due to full blown Aids and he has been considering a couple of possibilities for why she may have deteriorated so quickly in a short time and led to her death. He has also been giving careful consideration to another explanation that his preliminary considerations have raised and that involves sodomy and suffocation or strangulation.
He has repeatedly asked me to give time to further review and consider the information and allow him to consult with some of his colleagues. He recognises the extreme importance of getting it right, given the nature of the enquiry and feels that if we wish to get the best expert opinion that it may take another week or so.
Professor Rode stated that there has already been one life destroyed, he realises the seriousness of the matter and does not want to make a mistake.
He did not think his preliminary comments would be used by the Court other than to be given sufficient time that he can develop a well considered and correct opinion. I do not think that he would expect that any of his comments so far could or should be used one way or the other within the Court. I think he would be quite alarmed if he thought that his initial comments were to be used by the Court in any prejudicial sense until he has had time to consult appropriately and come up with a definitive opinion.
All that he has done so far is shown that there is legitimate reason for him to ensure that it is investigated further.
He realises there is a lot at stake here and does not want to get it wrong.
The characteristics of what he has seen in the documentation and photographs raise the possibility of more than one explanation and he sees it as his responsibility to try and clarify the actual sequence of events that occurred that led to the death.
There are features that are consistent with Aids affecting the bowel and anal area which is why he thinks it is important that he is given the opportunity to consider it further. There are also features which are suggestive of sodomy and strangulation or suffocation which is why the evidence needs to be very carefully assessed.
Professor Rode arrives in Christchurch at approximately 5pm on Wednesday night. He would rather meet up and discuss it with lawyers on both sides on an informal basis prior to finally making his opinion. He can be contacted through me. I am able to rearrange his schedule on Thursday afternoon or Friday if necessary.
[27] There was a shift in terminology between the 14 and 16 May job sheets. The 14 May job sheet refers to “HIV patients” and children suffering from “congenital HIV”. On the other hand, in the 16 May job sheet the references are to “aids” and “full-blown aids”. Charlene did have HIV but she was never diagnosed as having AIDS. This may be of significance. The 16 May job sheet also recorded Professor Rode’s view that his initial comments should not be relied on evidentially.
[28] The Court resumed on the same day, 16 May, at 2.00pm (in the absence of the jury) and the Judge was given a copy of the 16 May job sheet. It appears that the prosecutor invited the Judge to reconsider the ruling he had given that morning. This the Judge declined to do, although he incorporated references to the new material in the reasons which he then gave:
[4] Since submissions were advanced this morning there has been a further telephone conversation between the police and Professor Beasley. The police job sheet indicates that Professor Rode is quite alarmed to think that his initial comments might be used by the Court “in any prejudicial sense” before he had time to consult appropriately and come up with a definitive opinion. And it is also recorded in the job sheet that Professor Rode believes there are features suggestive of sodomy and strangulation or suffocation which is why he considers that the evidence needs to be very carefully assessed.
[5] It is scarcely surprising that Professor Rode is alarmed by the developments that have resulted from his conversation with Professor Beasley. Understandably he wishes to fully consider the whole matter before expressing any opinion. However, I have to weigh other considerations as well.
…
Discussion
[10] As indicated earlier today, I have ruled out any prospect of aborting the trial. I have also effectively ruled out delaying the trial to accommodate a meeting next Wednesday (at the best) between Professor Rode and counsel. To my mind such a meeting would be entirely pointless. Professor Rode has made in abundantly clear that he wishes to fully consider the matter before expressing an opinion and the timeframe he has already given is at least two weeks.
[11] This brings me to the question of admitting Professor Rode’s comments in a hearsay form. The general admissibility of hearsay evidence is governed by s18 of the Evidence Act which provides:
18General admissibility of hearsay
(1) A hearsay statement is admissible in any proceeding if -
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either -
(i) the maker of the statement is unavailable as a witness; or
(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
(2) This section is subject to sections 20 and 22.
Clearly the statements made by Professor Rode to Professor Beasley qualify as hearsay statements in terms of the definition.
[12] When considering the first requirement in para (a) that the circumstances relating to the statement provide a reasonable assurance that the statement is reliable, it is important to keep in mind the contents and context of the statement. As reported in the job sheet, Professor Rode’s statements involve a relatively straightforward comment about the circumstances surrounding the deaths of some children in South Africa. These statements must have reflected his personal knowledge otherwise he would not have made them to Professor Beasley. The statements were then relayed by Professor Beasley to the police.
[13] In all the circumstances there is no reason to suppose that the method by which the information has been relayed would have affected its reliability. Professor Beasley has already given evidence. He is an eminent paediatric surgeon and I was very favourably impressed by him as a witness. The information that he was relaying was within a medical sphere and there is no reason to think that he would have failed to accurately relay what had been said by Professor Rode. Nor is there any reasonable basis for concluding that Detective Johannsen might have failed to accurately record what was conveyed to him by Professor Beasley. Again, I note that the information is relatively straightforward and brief. I am therefore satisfied that there is a reasonable assurance that the statement is reliable in terms of s18(1)(a).
[14] For reasons already given yesterday, and again today, I am perfectly satisfied that the maker of the statement, Professor Rode, is unavailable as a witness in terms of s18(1)(b)(i). Currently he is in Hong Kong. As I have already said there is no reason to believe that he would be able to provide an opinion within the next week; his timeframe is at least two weeks which would mean that this trial would have to be aborted if he was to give evidence in person.
[15] While Professor Rode is clearly alarmed by the developments in this case, the aim is not to obtain a full opinion from him. That is not feasible. Rather, it is to tell the jury about the comments that were made by him to Professor Beasley.
[16] I am also satisfied that the alternative under s18(1)(b)(ii) is satisfied. Undue expense or delay would be caused if Professor Rode was required to be a witness. As I have already said, this would involve aborting the trial and in my view aborting the trial at this stage would not only give rise to expense and delay, it would give rise to a serious injustice.
[17] No notice has been given under s22 of the Evidence Act. Given the highly unusual circumstances I have no hesitation in dispensing with the requirements of s22 pursuant to subs (5) on the grounds that the interests of justice so require.
[18] I do not accept that s25(3) provides an obstacle to the course that I am adopting. That subsection provides:
(3) If an opinion by an expert is based on a fact that is outside the general body of knowledge that makes up the expertise of the expert, the opinion may be relied on by the fact-finder only if that fact is or will be proved or judicially noticed in the proceeding
As I see it, the hearsay information coming from Professor Rode is entirely within the general body of knowledge that makes up his expertise. It is for that very reason that he responded to Professor Beasley in the way that he did. In my opinion s25(3) does not apply to the situation that has arisen.
Outcome
[19] Mr Eaton and/or Mr Rapley will be entitled to cross-examine Detective Johannsen and Dr Sage about the job sheet on the basis that the further comment reported to the Court this morning by Mr Lange [being the qualifications referred to in the 16 May email] will also be included. I should add that there is no reason to doubt the accuracy of that additional information which was again conveyed by Professor Beasley to Crown counsel. The procedural mechanics of getting this additional information before the jury might require further consideration because it was not conveyed to Detective Johannsen. One possibility is Mr Eaton’s suggestion of an agreed statement. But an agreed statement would require the co-operation of counsel and that is not something that I can presume. So we may need to revisit that aspect.
[20] As I see it, the approach I have adopted will ensure balance and fairness to the Crown and defence. It will avoid the trial being aborted. Directions during the course of summing-up should overcome the risk inherent in admitting hearsay evidence. I also note that the admission of hearsay evidence in appropriate situations is authorised by the Evidence Act.
[21] There is one final issue: whether Mr Eaton is under a duty to put the hearsay evidence to Dr Meates Dennis. My understanding is that Mr Eaton does not want that witness to be recalled and the only issue is whether there is a duty for the hearsay evidence deriving from Professor Rode to be put. Rightly or wrongly I have come to the conclusion that there is no obligation. I cannot see the point in recalling the doctor and putting this information to her. The question of Aids related factors giving rise to Charlene’s illness and death have been squarely put to Dr Meates Dennis. Those factors include the matters involving the South African children that were mentioned by Professor Rode to Professor Beasley. So I am not prepared to direct that Dr Meates Dennis be recalled.
[29] The argument which was advanced to the Judge when the Court convened at 2.00pm must have been fairly limited because the Judge, having given his reasons, was able to resume the trial with the jury present at 2.15pm.
[30] The prosecutor seems to have taken the view that there was an affirmative ruling by the Judge that the information in the 16 May job sheet was not to be referred to in evidence. Defence counsel and the Judge have no recall of such a ruling and there is no record of it in the Crown minute book. On the other hand, the hearsay material which the Judge ruled admissible did not extend to the contents of the 16 May job sheet. I suspect that the 16 May job sheet was treated by the Judge and counsel as primarily relevant to the question whether the Judge should change the ruling he had announced in the morning, and that its evidential significance was overlooked on the afternoon of 16 May. I can see no reason why the Judge would have declined to permit the prosecutor to put in evidence the contents of the 16 May job sheet if this had been proposed.
The subsequent course of the trial
[31] Mr Eaton was able to put the disputed evidence before the jury through his cross-examination of Detective Johannsen and then made good use of it in his cross-examination of Dr Sage.
[32] There are two passages of cross-examination of Dr Sage (unfortunately rather long) which illustrate this.
[33] The first, which effectively set the scene for what followed, was as to the significance of the anal injuries:
You agree there are two possible causes of death identified post mortem…Yes.
Both might result in the type of brain injury you discovered as being ultimately causative of death…They might but one is less likely than the other.
And you accept that of the two causes overwhelming sepsis from an unidentified pathogen remains a plausible medical explanation for Charlene’s death?…It is though in some ways it is a relatively unsatisfactory explanation.
The answer is yes, you accept it remains a plausible medical explanation for her death?…A conditional yes.
At depositions I asked you the exact same question and you simply answered yes. Have things changed?…No.
The alternative is asphyxia by some means that is unknown…Yes.
And in terms of the asphyxia possibility would it be fair to say your views about the anal injuries being the result of an assault is a strong factor supporting that theory…It’s very hard to disregard them.
But if you take away the theory that those injuries were a consequence of assault you would be unlikely favouring asphyxia as a cause of death…It’s not a theory that they are due to assault. It’s a conclusion. And you cannot take them away but if hypothetically you were going to, it’s possible that this death is due to overwhelming sepsis though there are features that are unusual for that.
…
You do agree that because of her general condition particularly HIV status, Charlene was at risk of an overwhelming infection…She is at greater risk than the rest of the population, yes.
And at risk of a whole raft of chronic infections because of HIV…Yes, that’s certainly true.
And you accept do you not that it’s recognised and accepted that an HIV patient who is okay one day is susceptible to a sudden and catastrophic collapse due to infection?…This can happen in apparently normal children. Most of the conditions particularly associated with HIV can make these kids very sick quite quickly but usually it’s a process of a couple of days rather than a few hours and in the few hours group tend to be associated with the highly pathogenic bacteria that affect normal kids such as meningococus which the community is well aware of because of the vaccination programme. HIV kids that develop PCP, pneumonia or overwhelming TB get sick and die but not in this sort of short order.
You are aware of cases are you not in which the timeframe from someone being completely well to critically ill due to overwhelming infection can be a matter of hours?…I see between 3 and 6 of these every year in adults and children.
And in some of those cases you are not able to identify at post mortem the causative pathogen?…There are a few of those cases, yes, though that’s uncommon.
[34] The second passage deals more directly with the initial comments of Professor Rode:
I take it that as you described with the limited number of cases involving HIV you have had direct clinical experience with that you were not aware of a group of HIV patients in South Africa in Charlene’s age bracket born with HIV who have deteriorated very quickly and died and symptoms showing deterioration within the brain, anal tears radiating from the anus and the passing of watery green coloured diarrhoea?… This has not been described in the medical literature and I assume you are referring to what for me is third hand information from Professor Rode.
You are completely aware are you not of Professor Rode having spoken to Professor Beasley at a conference in Hong Kong last week?…Yes.
And Professor Beasley discussed this case with Professor Rode who indicated a view that the symptoms seemed similar to cases he had experience with and that led Professor Beasley to contact the police in order that that matter could be raised in terms of its relevance to this trial?…Yes.
And you have given your evidence this morning and last Friday choosing to ignore that material?…You haven’t quite told the court the full story of this communication –
Were you involved directly in the communications?…I have spoken on one occasion on Tuesday morning directly with Professor Beasley. Other than that I have had no direct contact.
You weren’t aware of this group of patients that Professor Rode has described?…In the context as I understand it I am not sure that Professor Rode is saying that she belongs in that group of patients.
That wasn’t the question?…I have already explained that it is not in the medical literature.
Given Professor Rode is a professor in paediatrics in South Africa where as we have discussed, HIV is prevalent, do you not think he might have more direct clinical experience than a New Zealand based clinician…Professor Rode is a paediatric surgeon, not paediatrician, but be that as it may, my understanding is that about 40% of the patients seen in his unit, not necessarily all seen by himself of course, are HIV positive.
So if Professor Rode has identified a group of HIV patients Charlene’s age born with HIV deteriorate quickly and die of brain injury, radial tears from the anus and green watery diarrhoea, you are not going to argue that such a group of patients don’t exist? One of the things that is in the literature and papers published by Professor Rode is that the unit at which he works in Cape Town sees between 450 and 500 children every year who have been subject to rape. I would therefore expect that he had clinical acumen in ano genital injuries and that he has seen an awful lot more children with HIV than have I. Two problems remain. First, communications from him, as I understand it, now cover a full spectrum of opinion from that which you have put to one in which –
(Jury retire. Discussion. Jury return).
I was asking whether you yourself prior to hearing via Professor Beasley what Rode had said about this group of HIV patients he has described, were you aware of that group of patients?…I have searched the literature very carefully looking for this prior to this trial, prior to any intimation from Professor Rode and there are no papers describing this group from West African, US, UK, Brazil where there are numerous children affected by HIV.
THE COURT: You weren’t aware of the group?…No, and it’s not published anywhere in the world.
(Cross-examination continues)
That doesn’t mean it doesn’t exist?…Of course not.
In terms of trying to assess whether this case falls within that group or not your position would be you don’t know enough about this group of patients to make informed decisions about that?…Yes, tantalising.
Because of this reference to radial tears around the anus which you feel confident could only have been from some sort of trauma?…Yes and the extra questions that I want to answer will be evident from the evidence I have already given.
And to be fair to you Professor Rode is not purporting to have had the opportunity to give an opinion whether this case fits the group he is talking about, he is indicating this may be a case of sexual assault and suffocation?…Yes.
But in terms of what we have to hand and regardless of whether it is tantalising or not, does it cause you as an expert giving evidence in such an important matter to rethink any of the opinions you have expressed?…Because what has been reported covers the full range of questions that arise in this case I can’t make any assessment at all of the worth or validity of what has been said.
…
But with what you now know with the concerns you have about the state of play would you stake your professional reputation on the line and say this could not be natural causes?…There has been nothing said so far by Professor Rode that explains the findings in this case. The crucial point I think is the obvious damage to the anal sphincter. At present I do not accept and will require rigorous persuasion otherwise that sudden onset of diarrhoea, superficial yeast infection, in the absence of other significant deep inflammation could cause these changes. Personally I don’t think Professor Rode is describing this case.
[35] The Judge dealt with Professor Rode in his summing up in this way:
Professor Rode
[30] Professor Rode. His comments, of course, came before you in a somewhat unexpected way. It was as a result of the highest possible professionalism on the part of Professor Beasley. The Crown says that you ought to give Professor Rode’s comments little or no weight. The defence says that they are pivotal because they must give rise to a reasonable doubt.
[31] I want to say several things about Professor Rode’s comments. First, plainly they are hearsay. You haven’t heard those comments from Professor Rode’s lips. You have heard them after they have passed through Professor Beasley to the police. Experience shows us that you have always got to be careful when you are dealing with hearsay evidence. But a Judge can allow hearsay evidence to go to a jury if, ladies and gentlemen, the circumstances relating to the hearsay statement provides a reasonable assurance that the statement is reliable and if the Judge is satisfied that the maker of the statement is unavailable. In this case, ladies and gentlemen, I have ruled that the hearsay statements from Professor Rode can go before you on the basis that the circumstances relating to the making of the statements provided a reasonable assurance that the statements were reliable. That was my ruling. At the end of the day it is for you to decide what weight you give to the statements that have been conveyed to you. You are not bound by my ruling.
[32] The next point is, it’s patently obvious, isn’t it, that Professor Rode hasn’t expressed any final view. Not surprising at all. What he has said really falls into two parts. The first is that there are a group of children in South Africa who have died quickly under circumstances which, at least on the surface, have close parallels – I should say displayed symptoms – which under the circumstances indicate close parallels with those involved in Charlene’s death.
[33] The second part is that having seen some photos (we don’t know which photos) and Dr Sage’s post-mortem report, Professor Rode commented that the symptoms – that Charlene’s death might have been caused by sexual assault, by asphyxiation involved in a sexual assault.
[34] The Crown suggest to you that Professor Rode in making the second observations had changed his mind. I don’t understand it that way. All Professor Rode was saying is that this might be a case of asphyxiation during a sexual assault. Might not be as well. So it is not a matter of this being a concluded opinion in any way. In the end, ladies and gentlemen, it is going to be for you to make what you will of these comments from Professor Rode. But I would say that you would be extraordinarily bold if you gave them no weight at all.
Crown appeals under ss 380 and 382: the principles
Crown appeals generally
[36] The rule against double jeopardy is deeply ingrained in the common law where it gave rise to the defences of autrefois acquit and autrefois convict. It is now embodied in s 26(2) of the New Zealand Bill of Rights Act 1990, which provides:
No-one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.
[37] The development of statutory rights of appeal in criminal cases is a comparatively recent phenomenon. In a strict sense, the existence of a right of appeal against an acquittal defines away the double jeopardy problem. This is because an acquittal which is subject to appeal is not final, see R v Morgentaler [1988] 1 SCR 30. So allowing a prosecution appeal against an acquittal thus does not infringe s 26(2).
[38] On the other hand, on a less formal approach, a prosecution appeal against an acquittal might (at least sometimes) derogate from the spirit of the rule against double jeopardy. It is this consideration, more than any other, which has influenced legislatures and courts in their approach to prosecution appeals. Sometimes the courts have read down generally expressed statutory rights of appeal so as not to extend to prosecution appeals (see Thompson v Master-Touch TV Service Pty Limited (No 3) (1978) 38 FLR 397 (FCA)). It is not uncommon for legislatures to provide for prosecution “appeals” on a “without prejudice” basis, via an Attorney-General’s reference process; thus permitting erroneous rulings in favour of a defendant to be corrected for the future but without legally impugning the acquittal. And where true (or “with prejudice”) rights of appeal are conferred on a prosecutor they tend to be more limited than those available to defendants and there remain issues as to when it is right to set aside an acquittal. As to all of this, see Ireland Law Reform Commission Consultation Paper on Prosecution Appeals In Cases Brought On Indictment (LRC CP19/2002 2002) and the report of the Law Commission of England and Wales Double Jeopardy And Prosecution Appeals (LC267 2001).
[39] Worth noting is the distinction drawn by the Law Commission of England and Wales between “terminating” and “non-terminating” rulings (ie, a distinction between rulings which do, and do not, bring the trial to an end, see [7.16]). The Law Commission recommended Crown appeal rights in relation to terminating rulings, but that the Crown should remain unable to appeal against non-terminating rulings: see [7.37] – [7.49] of the Report. A terminating ruling, which is wrong in law and results in the case being decided in favour of the defendant, is a comparatively unproblematic candidate for a prosecution appeal.
[40] Counsel for Mr Gwaze submitted that, in light of the rule against double jeopardy, Crown appeals against acquittals should be subject to a high threshold. The following discussion examines the principles applying to Crown appeals against acquittals by reference to the legislative and case history of Crown appeals in New Zealand and other jurisdictions.
Sections 380 and 382
[41] Sections 380 and 382 provide for a trial judge to reserve questions of law for the opinion of the Court of Appeal for offences proceeded with indictably. This may be at the request of either the defendant or the prosecutor and these sections thus provide for a particular right of appeal exercisable by both prosecutor and defendant. The two sections relevantly provide:
380 Reserving question of the law
(1) The Court before which any accused person is tried may, either during or after the trial, reserve for the opinion of the Court of Appeal, in manner hereinafter provided, any question of law arising either on the trial or on any of the proceedings preliminary, subsequent, or incidental thereto, or arising out of the direction of the Judge, ….
(2) If the decision of the question may in the opinion of the Court depend on any questions of fact, the Court may in its discretion ask the jury questions as to the facts separately, and the Court shall make a note of those questions and the findings thereon.
(3) Either the prosecutor or the accused may during the trial apply to the Court to reserve any such question as aforesaid, and the Court, if it refuses so to reserve it, shall nevertheless take a note of the application, unless it considers the same to be frivolous.
(4) If the result of the trial is acquittal the accused shall be discharged, subject to being again arrested if the Court of Appeal orders a new trial.
…
(6) If the question is reserved, a case shall be stated for the opinion of the Court of Appeal, to be approved and signed by the Judge who presided at the trial.
382 Powers of Court of Appeal where appeal is on question of law
(1) The Court of Appeal may, in its discretion, send back any case to the Court by which it was stated to be amended or restated.
(2) Upon the hearing of any appeal under the foregoing provisions of this Part of this Act…, the Court of Appeal may—
(a) Confirm the ruling appealed from; or
(b)If of opinion that the ruling was erroneous, and that there has been a mistrial…, direct a new trial; or
…
(e)In any case, whether the appeal is on behalf of the prosecutor or of the accused, direct a new trial; or
(f) Make such other order as justice requires:
Provided that no conviction or acquittal shall be set aside, nor any new trial directed, although it appears that some evidence was improperly admitted or rejected, or that something not according to law was done at the trial, or some misdirection given, unless in the opinion of the Court of Appeal some substantial wrong or miscarriage of justice was thereby occasioned on the trial:
…
[42] It is clear from s 382(2)(b), (e) and (f) and the proviso that it is open to this Court to set aside an acquittal and, in appropriate circumstances, order a new trial if “some substantial wrong or miscarriage of justice” has occurred.
The origins of sections 380 and 382 and their relationship with s 385
[43] Sections 380 and 382 of the Crimes Act follow, reasonably closely, the form of cls 539 and 542 of the draft code prepared in 1879 by the Criminal Code Bill Commission: Report of the Royal Commission Appointed to Consider the Law Relating to Indictable Offences (1879).
[44] The starting point for cls 539 and 542 of the 1879 draft code was the existing practice in England and Wales under which points of law in criminal cases could be reserved for the opinion of the Court for Crown Cases Reserved. The practice only permitted a question of law to be reserved at the request of a defendant. So a ruling that was favourable to a defendant could not be challenged by the Crown. Further, if the Court for Crown Cases Reserved found that the ruling against the defendant was wrong, the Court was bound to quash the conviction and had no power to order a retrial: see Report of the Royal Commission at 39.
[45] Clauses 539 and 542, if enacted, would have involved changes to the practice of reserving questions of law in the following respects:
(a)The clauses formed part of a family of clauses that provided for other mechanisms for challenging factually doubtful convictions (see cls 543, 544 and 545).
(b)The proviso in cl 542 contained the threshold test of “some substantial wrong or miscarriage of justice”, which has been retained in s 382 of the Crimes Act. The test departed from the existing practice under which the quashing of the conviction was automatic once the question of law was resolved in favour of the defendant.
(c)Under the proposed clauses, the proposed Court of Appeal (which was to replace the Court for Crown Cases Reserved) would have had the power to direct a new trial as opposed to being required to quash a conviction.
(d)The clauses provided for points of law to be reserved at the request of the Crown, rather than limiting it only to the defendant, and thus provided for what in effect was a right of appeal by the Crown against acquittals.
In relation to the last of these proposed changes, the Commissioners made it clear that they had “no opinion on the expediency of this”: see Report of the Royal Commission at 38. There is thus no discussion of the merits of providing for a Crown appeal or of the circumstances in which the exercise of such a right might be appropriate.
[46] Similar provisions appeared in the draft 1880 bill which was prepared by the Attorney-General and approved by the Commissioners.
[47] A draft criminal code for New Zealand based on the 1880 English draft bill was reported on by Statutes Revision Committee in June 1883: Report on the Criminal Code. The Committee had reservations as to the desirability of changing the then current New Zealand system of reserving points of law: see para 11(l) of their report and the commentary to cl 444 of the New Zealand bill. But despite these reservations, the Criminal Code Act 1893 carried into law (in the form of ss 412 and 415) provisions that were in substance the same as the original cls 539 and 542 of the 1879 draft code. This language then re‑appeared in ss 442 and 445 of the Crimes Act 1908 and again in ss 380 and 382 of the current Crimes Act. As well, the other mechanisms proposed in 1879 for challenging doubtful convictions were also carried through into the 1893 and 1908 statutes.
[48] It should also be noted that the recommendations of the 1879 Commission relating to appeals were never enacted in England and Wales. Instead, and much later, a different system was introduced by the Criminal Appeal Act 1907 (UK) which the New Zealand legislature borrowed when it enacted the Criminal Appeal Act 1945 and which is now provided for primarily in s 385 of the Crimes Act 1961. It seems likely that the language of the proviso to our s 385(1), “no substantial miscarriage of justice has actually occurred”, which can be directly traced back to the Criminal Appeal Act 1907 (UK), has its origins in the draft code prepared by the 1879 Royal Commission. When the current system of criminal appeals was introduced in 1945, ss 442 and 445 of the Crimes Act 1908 (which were based on cls 539 and 542 of 1879 draft code) were retained and they were later re-enacted as ss 380 and 382 of the 1961 Act. However the sections in the Crimes Act 1908 which provided other mechanisms for challenging factually doubtful verdicts as proposed in 1879, and which had been part of our law since 1893, were repealed in 1945.
[49] From the point of view of a convicted appellant, there can be overlapping rights of appeal either via the ss 380 and 382 route of reserving questions of law or under the “ordinary cases” right of appeal provided for in s 385. The co-existence of these overlapping rights of appeal reflects the reality that our system of criminal appeals results from a process of accretion rather than conscious design.
[50] Nonetheless the courts have to make sense of the Act as it stands. To do that, the concept of “mistrial” for the purposes of s 382(2)(b) and the proviso to s 382(2) must be construed, at least where the appellant was the defendant, in a way which is consistent with the current approach to the proviso to s 385(1). And since s 382(2)(b) and the proviso to s 382(2) apply to appeals by both Crown and defendants, it might be thought that the same test – under that subsection at least – applies irrespective of who is appealing. This in turn suggests that the only principled basis for taking a different and more rigorous approach to Crown appeals is to be found in the rather different purposes of the two provisos and the residual discretion which arises under s 382.
[51] At this point it should be noted that the two provisos work in different ways. Under s 385(1), the Court of Appeal is bound to allow an appeal where an appeal ground has been made out unless the proviso can be invoked. Under s 382, the Court may not interfere with a verdict unless the proviso can be invoked, but even where the proviso is satisfied, the Court is not required to intervene. That is a significant difference and it emphasises the role of the Court’s discretion under s 382, a discretion which has no counterpart in s 385.
Prosecution appeals under the Summary Proceedings Act 1957
[52] Section 107 of the Summary Proceedings Act 1957 provides for a right of appeal, exercisable by both prosecutor and defendant, against the determination of any information. The right of appeal is confined to questions of law and is subject to a case stated procedure. Under s 112 the High Court relevantly has the power to reverse, confirm or amend the determination, remit the matter to the District Court with opinion on the determination noted, or, under subs (d), make any other order as it sees fit. This last catchall provision has been interpreted to include remitting the case to the District Court for a rehearing.
[53] In cases which have been heard summarily, the significance (or otherwise) of the challenged ruling tends to be obvious. This is because the decision-maker (usually a professional judge) will have given reasons for the substantive decision. As well, it is the decision-maker who states the case. Accordingly, there is usually no need for the High Court Judge to speculate as to the likely outcome of the case had the question of law been resolved differently in the District Court. For these reasons, prosecution appeals under the Summary Proceedings Act tend not to be seen as derogating from the spirit of the rule against double jeopardy. They certainly are both relatively common and frequently allowed.
Prosecution appeals under s 381A of the Crimes Act
[54] The recent enactment (in 2008) of s 381A remedied the jurisdictional gap identified in R v Grimes [1985] 2 NZLR 265 (CA) that the case stated procedure under s 380 did not apply in the case of a s 347 discharge. Section 381A provides for Crown appeals by way of case stated against both s 347 discharges and stays.
[55] Given that a stay or s 347 discharge aborts the trial and in this sense is a terminating ruling, it is likely that appeals under s 381A will be seen as not derogating unacceptably from the spirit of the double jeopardy rule.
The New Zealand cases on ss 380 and 382
[56] There are a number of cases in which this Court has ordered new trials on prosecution appeals following directed acquittals: see for example R v Hughes [1986] 2 NZLR 129 (CA), R v Accused (CA423/90) [1991] 3 NZLR 513 (CA), R v Accused (CA160/92) [1993] 1 NZLR 385 (CA), R v Sew Hoy [1994] 1 NZLR 257 (CA), R v Tauilili [1997] 1 NZLR 525 (CA) and R v Karpavicius [2001] 3 NZLR 41 (CA). A similar approach has recently been taken in relation to appeals under s 381A, see for instance R v Alexander [2009] NZCA 346.
[57] I am aware of two cases in which non-directed acquittals have been set aside on Crown appeals: R v Jones [1986] 1 NZLR 1 (CA) and R v Renata [1992] 2 NZLR 346 (CA). In both cases the Judge had summed up too favourably to the defendants as to the elements of the offences which were alleged. In ordering new trials, the Court acted on the basis that the Crown was entitled to verdicts on the charges from what Cooke P referred to in Renata (at 350) as “a properly directed jury”.
[58] The principles applicable where the Crown challenges evidential rulings were reviewed by the Court of Appeal in R v McFarlane (1995) 13 CRNZ 354 (at 358):
The position in relation to a case stated involving an acquittal was discussed in the judgment of this Court in R v Frame unreported, 7 August 1974, CA42/74.
There the Court said:
But the proviso to subs (2) directs that no acquittal shall be set aside unless in the opinion of this Court some substantial wrong or miscarriage of justice was occasioned at the trial. We agree with Mr Ellis's submission that on the wording of the proviso the Court cannot direct a new trial unless it is affirmatively of that opinion.
The difficulty is to formulate a satisfactory way of posing the question — Was there a substantial wrong or miscarriage of justice? Counsel have been unable to refer us to any reported case in which this question has been discussed in the context of an appeal by the Crown where there has been an acquittal. We do not attempt to lay down a formula applicable in all cases but for the purposes of the present case we accept that the test suggested by Mr Williamson is a fair and satisfactory approach. So we ask ourselves whether we are satisfied that there is a sufficiently real prospect that the jury would have convicted (if the Judge had himself ruled on the question of admissibility of the complaint) to warrant the respondent being required to stand trial again on the same evidence as that on which he has already been acquitted.
To apply that test in this case then the Court must consider whether it is satisfied that there is a sufficiently real prospect that the jury would have convicted the accused if the Judge had ruled the [disputed] evidence … admissible and that such prospect would warrant the accused being required to stand trial again.
[59] The principles were more recently discussed in R v Stephens CA455/02 24 March 2003 where the Court, after referring to the double jeopardy issue, observed:
[25] The availability to the subject of a general appeal under s383 of the Crimes Act and this Court’s powers under s385 mean that the Case Stated procedure will, except in the rarest cases, seem inapt for challenging a conviction. It is more likely to be invoked by the Crown to challenge an acquittal. Even then, having regard to the availability of the s344A procedure, recourse by the Crown is a rarity. Accordingly the need to demonstrate that a substantial wrong or miscarriage of justice was occasioned on the trial should not be depreciated. The acquittal of a subject is not to be lightly set aside.
[26] As the above-mentioned citation from Frame indicates, there is no generally applicable formula to apply beyond, of course, the words themselves of that proviso. The broad issue of substantial wrong or miscarriage of justice becomes more focused, in any particular case, by the nature of the grounds relied on by an appellant.
[27] We think, with all respect to the approaches taken in Frame and McFarlane, that more extensive analysis is needed than may have been suggested in those cases. Where, as in this case, the grounds relate to the wrongful exclusion of evidence, the question whether a substantial wrong or miscarriage of justice has been thereby occasioned will involve considerations such as the nature of the excluded evidence, its cogency and credibility, its relationship with all the other evidence in the case, its causative impact on the verdict of acquittal, the consequential conduct of the defence in view of the rejection of evidence, and any other relevant matters.
[28] But even if this Court were of the opinion that a substantial wrong or miscarriage of justice had been occasioned on the trial, there is still a discretion in s382(2) whether to direct a new trial. Matters which might bear on the exercise of that discretion could include the seriousness of the particular offences; the prospects of conviction or acquittal in the event of a new trial, having regard to other evidence which might be available to the subject; whether the verdict was formally directed or deliberated after a comprehensive trial; the prejudice of delay or of cost in having once more to defend; the amenability of the subject to a greater penalty than previously; any other relevant matters.
Practice in other jurisdictions
[60] Other jurisdictions (for instance, Canada and Tasmania) have provided for Crown appeals against acquittals with the possibility of a new trial. In Canada and Tasmania, this right of appeal is expressly confined to “questions of law alone”.
[61] Examples of how Crown appeal rights in Canada and Tasmania work in practice are to be found in judgments of the Supreme Court of Canada (R v Morin [1988] 2 SCR 345) and the High Court of Australia (see Vallance v R (1961) 108 CLR 56 and Williams v R (1986) 161 CLR 278).
[62] In Canada, Crown appeals against acquittals are routine and often allowed whereas this is not so in Tasmania. This must be a result of differences in legal culture as the formal legal tests have been expressed in similar terms.
[63] In Vallance, the approach taken by the High Court was that if a direction “along correct lines would not have been likely to make any difference in the result” a new trial ought not to be ordered: see Dixon CJ at 66.
[64] In Canada, where successful Crown appeals are common, the law is that a Crown appeal will only succeed if the appellate court is satisfied that the verdict would not necessarily have been the same if the error of law had not occurred, see Vézeau v R [1977] 2 SCR 277. On a literal approach, this test might be thought to be very much the same as that adopted in Vallance. Indeed, at least as a matter of expression, the Canadian test may be more exacting. For instance the onus on the Crown was seen by Sopinka CJ in Morin as “a heavy one” and he restated the test in this way (at [80]):
An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it.
He went on to say (at [80]):
Any more stringent test would require an appellate court to predict [sic] with certainty what happened in the jury room. That it cannot do.
[65] The test was put in slightly different terms by Fish J, delivering the majority judgment in R v Graveline [2006] 1 SCR 609 at [14]:
It has been long established, however, that an appeal by the Attorney General cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown. It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different.
[66] It is possible to quibble with choice of words of Sopinka CJ in Morin, particularly the “reasonable degree of certainty” overlay to a “may well have” probability assessment. Also open to quibble is the use by Fish J of the hard edged phrase “in the concrete reality of the case” in the context of the much softer “might reasonably be thought… to have had a material bearing”. It is, however, not entirely easy to express in words a level of likelihood which exceeds a “may well have” standard but which does not go as far as practical certainty.
[67] The Canadian and Tasmanian approaches coincide in respect of evidential rulings. Obviously an evidential ruling by a trial judge may depend on a question of law but it likewise may be determined by the judge’s view of the facts. There are many Canadian cases where appellate courts have declined to entertain Crown appeals from evidential rulings which have turned of a trial judge’s finding of fact, see, by way of example only, R v Gillis [1965] 2 CCC 219 (BCCA). The same approach has been adopted by the High Court of Australia: see Williams.
Pulling the threads together – a principled approach to Crown appeals
[68] A Crown appeal under ss 380 and 382 necessarily gives rise to a tension between the desirability of accuracy in the trial process and the spirit of the rule against double jeopardy.
[69] Broadly, and for the reasons which I have already given (see [50] above), I think that the “some substantial wrong or miscarriage of justice” proviso under s 382(2) should be construed consistently with the current approach to the proviso to s 385(1). I must emphasise, however, the important point – which has already been made (see [51] above) – that the provisos in the two sections nonetheless work in different ways. In particular, the conclusion (for the purposes of s 382) that there was a “mistrial” and some “substantial wrong or miscarriage of justice” merely sets the scene for the exercise of the discretion to set aside the acquittal and order a new trial, rather than automatically leading to the appeal being allowed (as under s 385).
[70] In the case of a Crown appeal, I see this discretion as largely turning on whether setting aside the acquittal and directing a new trial would derogate unacceptably from the double jeopardy principle, an approach which I see as having the advantage of addressing directly what will usually be the critical issue. It is also broadly consistent the existing patterns of authority.
[71] On my preferred approach, the Crown should only succeed in an appeal under ss 380 and 382 if:
(a)The question of law reserved by the trial Judge is answered in favour of the Crown;
(b)That error of law resulted in a “mistrial” and “some substantial wrong or miscarriage of justice”;
(c)To set-aside the acquittal and direct a new trial would not be an unacceptable derogation from the spirit of the rule against double jeopardy; and
(d)It is in all the circumstances appropriate to direct a new trial.
[72] In most cases where an erroneous legal ruling has in substance terminated the case in favour of the defendant, allowing a prosecution appeal and directing a new trial will not derogate unacceptably from the spirit of the rule against double jeopardy. That this is so is illustrated by the number of cases in which new trials have been ordered after directed verdicts of not guilty. In this context it does not particularly matter why the ruling served to terminate the proceedings. What is important is that there was not an acquittal on the merits.
[73] Prosecution appeals in cases which have been tried by a judge alone are also unlikely to be problematic; this for the same reasons why prosecution appeals are routine in relation to summary proceedings, see [53]. In such cases, there is usually no requirement to speculate as to how the finder of fact would have determined the case if there had been no legal error. Where that error has had a decisive effect on the outcome, ordering a new trial is unlikely to derogate unacceptably from the spirit of the rule against double jeopardy.
[74] Rather more difficult are the cases where there has been a non-directed jury acquittal. It is not possible to read into ss 380 and 382 an implied confining of Crown appeals to cases where there has been a terminating ruling. On the other hand, allowing a Crown appeal in the case of a non-directed jury verdict is more likely to be inconsistent with the spirit of the rule against double jeopardy. What is required is an approach for determining the circumstances in which a Crown appeal against a non-directed jury verdict might be appropriate.
[75] Most Crown appeals in relation to non-directed acquittals fall into one of two categories. The first is where the Judge has misdirected the jury as to the elements of the offence. The second is where the Judge has erred in an admissibility ruling. Of course, not all cases can be so categorised (cf Morin where the primary complaint was the way the trial Judge had summed up on circumstantial evidence), but, for reasons which will become apparent, I think that this broad categorisation is useful.
[76] In cases in the first category (where the Judge has misdirected the jury as to the elements of the offence), the courts have been willing to allow prosecution appeals. R v Jones is a case of this sort, as the Judge had misdirected the jury as to the elements of the offence charged, imposing too heavy an evidential burden on the Crown. In the result, the acquittal did not represent the opinion of the jury on the fundamental issues raised by the Crown. Renata is a similar case. In neither case was the approach taken by the judge in the nature of a terminating ruling because in both cases it would have been open to the jury to convict. Nonetheless the appeals were (appropriately) allowed and new trials were directed. Vallance was a similar case. Where an acquittal does not truly represent a finding by the jury on the merits of the case, directing a retrial does not derogate unacceptably from the spirit of the rule against double jeopardy.
[77] Prosecution appeals in respect of cases in the second category of cases are distinctly more problematic. In such cases, the Crown, despite the adverse admissibility ruling, has had a sufficiently credible case to be left to the jury. In such a case, the significance of the error in terms of the eventual result will necessarily be a matter of speculation.
[78] I do not see any scope for a hard and fast rule that in such circumstances there is never scope for ordering a new trial. A judicially imposed restriction of that nature would not sit altogether easily with the proviso to s 382(2) which:
(a)Expressly contemplates the possibility that admissibility rulings may result in the setting aside of an acquittal; and
It plainly contemplates setting aside an acquittal and directing a new trial on the ground that evidence was improperly admitted.
[174] Section 381A makes plain that this Court must intervene where a jury trial is prematurely terminated under s 347. In such a case, which in England is called a “terminating ruling”, there has been a judicial intervention into the jury’s sphere which this Court may review as wrong in law if irrational or for other reasons.
[175] The general language of the proviso to s 382(2) cannot be read broadly in the case of terminating rulings and yet narrowly in other cases. I have concluded that we have the same broad jurisdiction to entertain Crown appeals as exists in Canada; but only as to law. The question is how it should be used. There is an initial factual appraisal to be made (confined, on my preferred approach, to facts found by the trial judge with or without the assistance of the jury), then one of law (which in rulings on evidence must include the irrationality ground), to be followed if necessary by exercise of discretion. For the reasons stated at [130] I have made my own appraisal of the facts.
The facts
[176] In doing so in relation to the first question I have had more difficulty than my brethren. Professor Rode is such an authority that any considered statement by him would necessarily provide “substantial help” for purposes of the opinion rule and be “reliable” in terms of the hearsay exception. The issue for the Judge was not whether what Professor Rode conveyed was right but whether it was admissible. The Crown witnesses lacked the experience to be able to dispute that the nature of advanced HIV symptoms was accurately recounted by the professor, who is an expert in the field. It may be said that his statement was not misleading; he made quite explicit the limits of his advice and raised for consideration the option that the injuries and sudden death of Charlene were the result of a violent sexual attack.
[177] It was the defence case that Charlene’s symptoms were the consequence of her HIV/AIDS condition. It was thus essential to the proper performance of the jury’s functions that the jury be educated concerning the symptoms of advanced HIV. That information was necessary also for the Judge so that he could perform his onerous task of assisting the jury in summing up: see R v Hutton [2008] NZCA 126 at [153]. Provided that message was conveyed clearly to the jury by counsel and the Judge, as providing context for their determination rather than an opinion on causation, it could be said to meet the tests of both ss 18 and 25. Since there was no question in the case stated challenging the terms of the summing up, the summing up was not analysed in submissions and I make no comment upon it.
[178] The report of Professor Rode, made four months after the trial, expresses an opinion that the observations he made to Professor Beasley could have no application to Charlene’s case. On this appeal on questions of law I prefer not to consider material neither available to the Judge nor referred to in the case stated and therefore not the subject of testing by cross-examination. It is in my opinion inadmissible upon the issue of whether, on the material before him, the Judge erred.
[179] The President concludes that the Judge at [12] of his ruling considered that Professor Rode’s evidence was sufficiently reliable to satisfy the hearsay rule (s 18). I agree. While the Judge did not distinctly advert to the opinion rule’s requirement of substantial helpfulness (s 25), as a matter of fact what now matters on that topic, as on s 18, is the opinion of this Court.
[180] Hammond J has relied on the Judge’s recording of the entry in the police job sheet, as set out in the ruling of 16 May, that (at [4]):
Professor Rode is quite alarmed to think that his initial comments might be used by the Court “in any prejudicial sense” before he had time to consult appropriately and come up with a definitive opinion.
On that basis Hammond J made his own appraisal that the evidence was “unreliable”.
[181] Certainly Professor Rode’s information was only partial; any claim to the contrary would be irrational. But it may be argued that the evidence did not become of no substantial help, or unreliable, because it was partial. In other words, so far as it went, the statement was of substantial help and reliable.
[182] Had the complete report (made four months later) been before the Judge, the position would no doubt have been very different. It appears to contain something of a retraction of the initial statement. But I have declined to rely upon it because the decision of the Judge is to be appraised on the basis of what he had in front of him. As the President has said, the report can be of relevance only on the exercise of the ultimate discretion whether to vacate the acquittal once an error of law is established.
[183] I respectfully agree with Hammond J’s desire to get as near as can be managed to the scientific truth. The Criminal Disclosure Act 2008, which took effect on 29 June 2009 and requires the defence to disclose to the prosecutor any brief of evidence to be given by an expert witness, takes the law an important step in that direction. And from the same date the scope for trial by judge alone has been increased. But we are agreed that reference to evidence admitted after the event is not permitted. So the first question is whether the evidence admitted satisfied the tests of ss 18 and 25.
[184] I have concluded that both sections required what Professor Rode said in the statement of 16 May he failed to provide: a “well considered and correct opinion”. Hearsay is admitted only exceptionally. So too is evidence of opinion. The tests of reliability and substantial helpfulness are to be applied in context. The fact that Professor Rode described his statement as “preliminary comments” and would be “quite alarmed to think that his initial comments might be used by the Court ‘in any prejudicial sense’” leads me to the same conclusion as my colleagues: that the statutory tests were not met.
The error was not of fact but of law
[185] But that gives rise to the critical question: why were they not met? If the Judge’s error was of law this Court may interfere. The next step would be consideration of the s 382(2)(b) discretion, the exercise of which is viewed differently by the other members of the Court:
the Court of Appeal may—
…
(b)If of opinion that the ruling was erroneous, and that there has been a mistrial …, direct a new trial.
[186] But if the error was of fact the position is different.
[187] On the material before Chisholm J the hearsay statement of Professor Rode was of obvious importance. It provided an attractive lawful explanation for injuries which otherwise could have no innocent explanation. Wrongly admitted, in terms of the proviso to s 382(2), it entailed a substantial miscarriage. Taking into account the later report of Professor Rode, which unfortunately fails to explain the original statement, the case for miscarriage is strengthened.
[188] But I am of the view that the error was not of law – the interpretation of the Evidence Act and a correct approach to its application – but of fact: placing more weight on the initial Professor Rode material than was justified. We have no jurisdiction to entertain an appeal on that ground.
[189] It follows both that question 1 must be amended to read “Was I correct in law to admit into evidence the hearsay statements of Professor Rode” and that the answer to it is yes.
[190] I return for completeness to the further questions:
· Was I correct in law not to abort the trial as requested by the Crown on 16 May [2008]?
· Was I correct in law in ruling that Dr Meates-Dennis should not be recalled to have the hearsay evidence attributed to Professor Rode put to her?
[191] I agree with the President’s answer to the second question, that we may not answer it.
[192] The final question is in my view to be characterised as one not of law but of trial management. The Judge’s evaluative judgment necessarily included his assessment of whether, in view of all the other evidence in the case already heard and still to come, further cross-examination of the witness would “needlessly prolong the proceeding” under s 8(2) of the Evidence Act. It was not suggested that the other witnesses had expertise in child deaths from HIV.
Decision
[193] I would therefore answer questions 1 and 3 there has been no error of law; I would decline to answer question 2.
[194] I would dismiss the Crown’s appeal.
· HAMMOND J
Introduction
[195] I have had the advantage of seeing in draft the judgments of the President and Baragwanath J. The background to the case and the issues raised on the appeal are set out in the judgment of the President, and I need not retraverse them.
[196] Unfortunately, I take a different view from my colleagues as to the appropriate disposition of this appeal. In my view, the appeal should be allowed, and a retrial directed. This is because the trial Judge, Chisholm J, erred by admitting into evidence the hearsay statements of Professor Rode; that improperly admitted evidence had a wholly misleading effect and brought about a miscarriage of justice; and that consequence could have been avoided, but was not, by the Judge aborting the trial as requested by the Crown. In my view, this Court should exercise its discretion under s 382(2) of the Crimes Act 1961 to set aside the acquittal and direct a retrial.
[197] The significant point of difference between my colleagues and I is as to whether Chisholm J’s decision to allow the admission of Professor Rode’s evidence is susceptible to review under ss 380 and 382 of the Crimes Act. While the President regards the Judge’s ruling as “fundamentally factual” (at [107] above) and Baragwanath J considers “the sole arguable error is of fact” (at [130] above), I consider the Judge’s ruling to be erroneous in law.
Was evidence improperly admitted?
[198] Section 18(1)(a) of the Evidence Act 2006 provides that a hearsay statement is admissible in any proceeding if the circumstances relating to the statement provide reasonable assurance that the statement is reliable. Mr Horsley for the Crown rightly complained that the Judge did not apply the test of reliability to Professor Rode’s statement, but rather to the accuracy of Professor Beasley’s and Detective Johannsen’s reporting of that statement.
[199] The Judge was right to be concerned about the mechanical aspect of the reliability of the transmission of information: see [13] of the Ruling 16 May 2008. But Mr Horsley correctly argues that “circumstances” in s 18(1)(a) is not limited to the method by which the information has been relayed. It is defined in s 16 to include the contents of the statement, the circumstances that relate to its making and the “accuracy” of the observations.
[200] I agree that the transmission factor is one element, but it is by no means the most important. In my view, the fatal difficulty in this case is that Professor Rode had plainly conveyed that the contents of his statement were not reliable for the forensic purpose to which it would be deployed: the cause of Charlene’s death.
[201] In relation to the first job sheet dated 14 May (see [20] above), Detective Johannsen records Professor Beasley as having recounted:
[Professor Rode] went on to emphasise that further information in relation to how the parents died, as well as other medical conditions that Charlene may have had would be required for a definitive answer to be given in relation to the injuries Charlene had and in the opinion given by his colleague.
In Detective Johannsen’s further job sheet on 16 May (see [26] above), Professor Beasley had noted:
[Professor Rode] did not think his preliminary comments would be used by the Court other than to be given sufficient time that he can develop a well considered and correct opinion. I do not think that he would expect that any of his comments so far could or should be used one way or the other within the Court. I think he would be quite alarmed if he thought that his initial comments were to be used by the Court in any prejudicial sense until he has had time to consult appropriately and come up with a definitive opinion.
[202] As the President notes (at [82] above), the Judge did not specifically address s 7(3) of the Evidence Act regarding relevance but he clearly thought that Professor Rode’s initial comments were material to cause of death. Given the “circumstances” surrounding Professor Rode’s comments, it is beyond me how the hearsay evidence could be put before the jury as having “a tendency to prove or disprove” the cause of death, in s 7(3) parlance. It is simply not enough to say that, as far as it goes, it is accurate that there have been cases of a particular kind in South Africa, at least without some articulation as to why evidence that children in South Africa had died in a certain way could be of any relevance to this trial.
[203] Further, in my view, there is force in the Crown argument that if it was thought that what Professor Rode was saying could be relevant to the cause of death, it amounted to allowing him to give inappropriate opinion evidence at that point.
[204] I must say too that the way in which the Judge allowed Professor Rode’s evidence to be put before the jury was unfair to the Crown. How it came in at all was that Mr Eaton, the defence counsel, was enabled to put the disputed evidence before the jury through his cross-examination of Detective Johannsen and Dr Sage. Dr Sage in particular was put in an impossible position. All he could attempt to say was that the full story was not being told, as was indeed the case:
Q:You weren’t aware of this group of patients that Professor Rode has described?
A:In the context as I understand it I am not sure that Professor Rode is saying that she belongs in that group of patients.
…
Q:But with what you now know with the concerns you have about the state of play would you stake your professional reputation on the line and say this could not be natural causes?
A:There has been nothing said so far by Professor Rode that explains the findings in this case … Personally I don’t think Professor Rode is describing this case.
[205] In closing the Crown suggested that little weight should be placed on the preliminary hearsay evidence because Professor Rode had subsequently suggested that the cause of death might have been asphyxiation during a sexual assault. Although he said that Professor Rode’s evidence was not a “concluded opinion”, the Judge in summing up told the jury that they would be “extraordinarily bold” (at [34]) if they gave the evidence no weight at all.
[206] The Judge’s highly unusual approach to admissibility had two effects. First, “evidence” of only the most provisional and unreliable kind was admitted. Secondly, that evidence could be (and was) used as a forensic club by the defence in a way which the Crown could not respond to, and it weakened the Crown case in an artificial way.
Did the improperly admitted evidence occasion a miscarriage of justice?
[207] It is clear from the foregoing that I consider Chisholm J erred in admitting Professor Rode’s hearsay evidence. Section 382(2)(b), (e) and (f) and the proviso permit this Court to set aside an acquittal and order a new trial if “some substantial wrong or miscarriage of justice” has occurred. As this Court noted in R v Stephens CA455/02 24 March 2003 at [26], “there is no generally applicable formula to apply beyond, of course, the words themselves of that proviso.”
[208] I agree with the President that the s 382(2) proviso should be “construed consistently” with the current approach to the proviso to s 385(1), bearing in mind that the provisos in the sections operate differently (at [69] above). The Supreme Court has recently provided guidance on the interpretation of s 385(1)(c) (the miscarriage of justice provision) in R v Matenga [2009] 3 NZLR 145 at [31]:
… having identified a true miscarriage, that is, something which has gone wrong and which was capable of affecting the result of the trial, the task of the Court of Appeal under the proviso is then to consider whether that potentially adverse effect on the result may actually, that is, in reality, have occurred.
(Emphasis in original.)
[209] To my mind, it is highly likely that a miscarriage resulted from allowing Professor Rode’s evidence to go before the jury. The Crown had a strong case for sexual assault and suffocation based on the forensic evidence, including the location of the respondent’s sperm in the crotch area of Charlene’s underwear and the finding of a lubricant, petroleum jelly, in amongst Charlene’s diarrhoea. In arguing that Charlene had died of natural causes linked to her HIV status, the defence had to advance arguments based on character, alibi and lack of opportunity. Professor Rode’s hearsay evidence was a godsend for the defence: on the basis of that evidence, the defence could then, and did, say that there was a possibility that Charlene’s death was HIV related, evidence which the Judge told them they would be “bold” to give no weight to.
[210] The Judge was admittedly faced with a difficult situation. It was entirely right to let the defence know what Professor Rode had said, based on the 14 May job sheet. But he should have said to the defence that this material could not be admitted because of present unreliability. If the defence wanted further time to investigate the possibility that Charlene’s death was HIV related, the Judge would have had to consider whether the defence should have an adjournment or whether the trial should be aborted to enable further investigation. Either step would have preserved the right of the defence to a fair and accurate trial. And efficiency in concluding trials should not prevail over justice in criminal cases.
[211] As it transpired, the Crown submitted that Professor Rode’s initial comments were inadmissible and that the trial should be aborted to permit Professor Rode to give a comprehensive opinion. The Crown’s application to abort the trial was opposed by the defence, who for plainly tactical reasons applied to admit Professor Rode’s decidedly equivocal “evidence”. In his ruling of 16 May 2008 the Judge confirmed his earlier oral decision not to abort the trial, declined to adjourn to accommodate a meeting between Professor Rode and counsel, and admitted the hearsay statements attributed to Professor Rode.
[212] I am of the view that the miscarriage of justice occasioned by the improper admission of Professor Rode’s evidence would have been ameliorated if the Judge had acceded to the Crown’s request to abort the trial.
[213] There is also something fundamentally wrong about incomplete or minimalist hearsay evidence going before the jury against the professional view of the maker of it. On subsequent proper examination, Professor Rode’s conclusion was that Charlene had been sexually abused and suffered a sustained hypoxic/anoxic external event or cardiac arrest which had led to her death, probably caused by smothering during sexual abuse. He considered that the fissures in Charlene’s anus were consistent with sudden unexpected force to the anal canal and were strongly suggestive of sexual assault, as were the injuries to Charlene’s hymen. He did not consider that Charlene could have died from an infection associated with HIV or any other natural disease process, given the then progression of her HIV and the absence of symptoms of other illnesses. The jury never heard Professor Rode’s considered views.
[214] For the avoidance of doubt, my view that there was a miscarriage of justice is based on the Judge’s wrongful admission of Professor Rode’s hearsay evidence, not on the results of his subsequent proper examination. However, these results must influence this Court in the exercise of its discretion to order a new trial: see [221] – [231] below.
Can this Court review the Judge’s ruling?
[215] Historically, there has been an interminable and likely never-ending debate as to what is an issue of fact and what is an issue of law. It is not necessary to enter that debate here, because in my view the Judge clearly erred in law in several respects.
[216] First, the terms of the s 382(2) proviso expressly include the improper admission of evidence as potentially giving rise to “some substantial wrong or miscarriage of justice”. To suggest that the Judge’s admissibility ruling is not susceptible to review runs counter to the plain wording of the section.
[217] Secondly, the Judge misapplied the definition of “circumstances” in s 16, as used in s 18(1)(a) of the Evidence Act, by limiting it to the accuracy of Professor Beasley’s reporting to Detective Johannsen of what Professor Rode had said. But it was the circumstances and content of Professor Rode’s statement that made it unreliable and inadmissible. That is a classic error of law.
[218] Thirdly, the Judge fell into error in treating the admissibility of Professor Rode’s statement as being restricted to and determined by the hearsay provisions in the Evidence Act. As I indicated earlier, there was a serious issue of relevance under s 7, which was not canvassed by Chisholm J. In other words, the Judge performed only a partial admissibility inquiry.
[219] Fourthly, during the trial the Crown invited the Judge to reserve three questions of law for the opinion of this Court under s 380(1). Subsequently the Crown requested him to state a case under s 380(6). There is no suggestion that Chisholm J was himself of the opinion that the three questions in the case stated raised questions of fact.
[220] Section 380(2) confers a discretion on the trial Judge to ask the jury to consider questions of fact, and is aligned to the case stated procedure. Chisholm J did not exercise this discretion under s 380(2) because in his opinion the questions of law reserved for the opinion of this Court did not depend on any findings of fact.
Should this Court exercise its discretion to order a new trial?
[221] I agree with the President that the conclusion that there was a “substantial wrong or miscarriage of justice” merely sets the scene for the exercise of the discretion in s 382 to set aside the acquittal and order a new trial (at [69] above). In my view, the question of how this Court should exercise its discretion is the most difficult part of this appeal.
[222] The President has suggested some principles to underpin this inquiry. One is that an acquittal should not be set aside, and a new trial directed, if that would be an unacceptable derogation from the spirit of the rule against double jeopardy. It has to be borne in mind however that a recalibration of the double jeopardy norm has already taken place in our law.
[223] Historically the common law set its face very firmly indeed against double jeopardy: that having been acquitted by a jury, a person could be tried again for the same offence. This fundamental proposition of the common law found its way into constitutional provisions and rights instruments in most jurisdictions: see s 26(2) of the New Zealand Bill of Rights Act 1990. That firm starting point has been recalibrated, at least to an extent, in more modern times.
[224] For example, see the ss 380 and 382 regime in the Crimes Act, as well as s 378A, amended in 2008, whereby an order for a retrial may be granted if an acquittal is tainted. These two statutory examples of a right of appeal against an acquittal demonstrate that the constitutional law/criminal law rule against double jeopardy has been recalibrated to a degree.
[225] This recalibration rests upon the following bedrock principle, as recently articulated by Lord Judge CJ in R v A [2009] 2 All ER 898 at [25] (CA): “The objective of the criminal justice process is that after a fair trial there should be a true verdict”. The reference to a “true verdict” is very important, for it points to the concept of accuracy. Double jeopardy reforms, such as the “new and compelling evidence” test in ss 77 and 78 of the Criminal Justice Act 2003 (UK), which R v A was concerned with, put in issue the historic axiom that finality is more important than accuracy.
[226] Obviously, no society can tolerate an endless chase after the ultimate scientific “truth” of a given law suit. But science has advanced, the most obvious example being the emergence of DNA evidence as a forensic tool, which has made it possible to get much closer to the scientific truth than was previously possible. The fact that this truth can emerge after a trial importantly challenges the conventional wisdom that a trial is a “once and for all” thing.
[227] Science, however, is only one aspect of the problem. It is possible for a trial to miscarry for reasons which could never have been foreseen and which are in a sense quite accidental. Every criminal lawyer knows the truth of the observation that the ball can bounce very strangely during the course of a case (as it did in this case, on the issue of what caused Charlene’s death). This explains why defence counsel routinely run “opportunistic” defences, which rest on the hope that something will “go wrong” for the prosecution so that a defendant who is truly guilty will be enabled to walk free.
[228] The bedrock principle of a “true verdict” reveals that accuracy has been reweighted in the scales of justice. Given the now statutory qualifiers to the rule against double jeopardy, I am not attracted to the President’s view that this Court’s discretion in s 382(2) should be guided by a free-standing “unacceptable derogation from the spirit of the rule against double jeopardy” principle. A Judge should not give what Parliament has taken away.
[229] What principles then should guide the Court’s exercise of its discretion? Unlike the new s 378A, Parliament has not given this Court assistance in the exercise of its discretion under ss 380 and 382. Section 378A(2)(c) predicates a retrial on an “interests of justice” basis, with certain factors which are required to be taken into account in 378A(3). Notwithstanding the absence of an explicit “interests of justice” principle in ss 380 and 382, I have no doubt that the “interests of justice” touchstone is applicable in the latter instance.
[230] On an “interests of justice” approach, one would not normally order a retrial of an acquitted defendant unless the prospects of a conviction at a retrial were very respectable. In other words, this Court should not send a case back for retrial where the prospects of conviction (even with an egregious error) were minimal or only passing.
[231] A practical difficulty here is that the determination of guilt is not for the trial judge or appellate judges. As has been emphasised recently by this Court in R v Haig [2006] 22 CRNZ 814, and the Privy Council in Bain v R [2007] 23 CRNZ 71, the ultimate question is for the jury. This makes the exercise of the discretion particularly difficult. There is also the consideration, explicit in the determination of the “interests of justice” in s 378A(3)(d), as to whether a retrial can be conducted fairly.
Outcome
[232] In my view, the improper admission of Professor Rode’s hearsay evidence resulted in a substantial miscarriage of justice. This was an error which could have been ameliorated by aborting the trial, but that was not done. In the result, the evidence before the jury was quite misleading. Professor Rode’s hearsay evidence, foisted on the Crown through cross-examination, suggested equivocation as to the cause of death. While the respondent’s acquittal was hardly surprising on what was in court, we do not have a “true verdict” based on the correct state of the forensic evidence, which strongly suggests that Charlene was badly sexually assaulted and murdered. There is a sufficient degree of probability of conviction that it is in the interests of justice for a new trial to be directed.
Solicitors:
Crown Law Office, Wellington
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