R v Gwaze

• Jurisdiction: New Zealand
• Judge: Elias CJ
• Judgment Date: 17 May 2010
• Neutral Citation: [2010] NZSC 52
• Docket Number: SC 93/2009
• Court: Supreme Court
• Date: 17 May 2010

The Queen

and

George Evans Gwaze

[2010] NZSC 52

Court:

Elias CJ, Blanchard, McGrath and Wilson JJ

SC 93/2009

IN THE SUPREME COURT OF NEW ZEALAND

Crown appeal against a Court of Appeal decision which declined to quash Gwaze's acquittals and direct a new trial — Gwaze was acquitted in the High Court of the sexual violation and murder of his niece — the niece had developed HIV but not AIDS — a key issue at trial was whether the niece's injuries were the result of an attack or due to her HIV — a doctor's evidence on this issue was admitted — Court of Appeal decided the doctor's statement was hearsay and that its prejudicial effect outweighed its probative value and was thus inadmissible, but had held the error was one of fact not law and declined to order a new trial — whether the High Court erred in law by admitting evidence that ought to have been excluded under the rules contained in the Evidence Act 2006 — whether the wrongful admission of law was a substantial miscarriage of justice and had occasioned a mistrial under's 382 Crimes Act 1961 (Powers of Court of Appeal where the appeal is on a question of law).

Counsel:

D B Collins QC Solicitor-General and B Horsley for Crown

J H M Eaton and C Gallivan for Respondent

• A The appeal is allowed and the acquittals are quashed.

• B A new trial is directed under's 382(2)(b) of the Crimes Act 1961.

• C A certified direction for new trial will issue to the Registrar of the High Court at Christchurch with the consequences provided for by ss 380(4) and 382(4) of the Crimes Act.

JUDGMENT OF THE COURT

REASONS

(Given by Elias CJ)

1 The principal and important question raised by the appeal is whether an error of law is made when a judge in a criminal trial admits evidence that ought to have been excluded in application of rules of exclusion contained in the Evidence Act 2006. Section 380(1) of the Crimes Act 1961 permits a trial court to reserve “any question of law arising either on the trial or on any of the proceedings preliminary, subsequent, or incidental thereto” for the opinion of the Court of Appeal. On case stated under's 380, the Court of Appeal was unanimous in concluding that evidence admitted at the trial of the respondent, Mr Gwaze, ought to have been excluded 1 William Young P and Hammond J considered it was irrelevant (requiring its exclusion under's 7 of the Evidence Act). All Judges considered that it failed to meet the standards required for the admission of hearsay and expert opinion (under ss 17, 18, 23 and 25). The President also considered that the prejudicial effect of the evidence outweighed its probative value (requiring its exclusion under's 8). These are conclusions with which we indicate our agreement in what follows, while differing with some aspects of the reasoning in the Court of Appeal. Despite finding that the evidence was wrongly admitted and had caused a substantial miscarriage of justice, a majority of the Court of Appeal, William Young P and Baragwanath J, held that whether the statutory tests for admissibility had been satisfied turned on inferences of fact and evaluation of fact and degree. As such, they considered that failure to meet the statutory criteria did not give rise to any question of law able to be addressed on the case stated. From this view, Hammond J dissented. For the reasons to be given, this Court overturns the decision of the majority of the Court of Appeal on the point. We are of the view that the evidence was admitted in error of law.

2 As a result, it is necessary to consider the application of s 382 of the Crimes Act which provides for the powers of the Court of Appeal on appeal on questions of law:

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, other than section 379A, 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 or that the accused has been wrongly discharged or that the prosecution has been wrongly stayed in consequence, direct a new trial; or

  • (c) if it considers the sentence erroneous or the arrest of judgment erroneous, pass such a sentence as ought to have been passed, or set aside any sentence passed by the court below, and remit the case to the court below with a direction to pass the proper sentence; or

  • (d) if of opinion, where the accused has been convicted, that the ruling was erroneous, and that the accused ought to have been acquitted, order that the conviction be set aside, which order shall be deemed to be an acquittal; 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:

provided also that if the Court of Appeal is of opinion that any challenge was improperly disallowed a new trial shall be granted.

• (3) If it appears to the Court of Appeal that such wrong or miscarriage of justice affected some count only of the indictment the court may give separate directions as to each count, and may pass sentence on any count that stands good and unaffected by such wrong or miscarriage of justice, or remit the case to the court below with a direction to pass such sentence as justice requires.

• (4) The order or direction of the Court of Appeal shall be certified under the hand of the presiding Judge to the Registrar of the court before which the case was tried, and such order or direction shall be carried into effect.

3 For reasons developed below, we are of the view that the wrongful admission of evidence has occasioned a mistrial under's 382(2)(b) and that a substantial miscarriage of justice has resulted, within the meaning of the proviso to s 382(2). We conclude that a new trial must be ordered. Such result could never be arrived at lightly following acquittal, which is why the proviso to s 382(2)(b) of the Crimes Act turns on there having been “some substantial wrong or miscarriage of justice” in addition to error causing “mistrial”. But we do not consider that the determination whether there should be a new trial requires any overlay of additional balancing in the case of acquittal, in recognition of a “double jeopardy principle”, such as William Young P in the Court of Appeal thought should apply. The procedure for appeal on questions of law reserved under's 380 explicitly applies to acquittals and envisages the outcome of new trial, should the Court of Appeal take the view that the conditions of s 382(2) are met. In such case there is no question of the accused being in “double jeopardy” because the first verdict is provisional only and the accused has not been “finally acquitted” within the meaning of the restatement of the rule against double jeopardy in s 26(2) of the New Zealand Bill of Rights Act 1990.

Background

4 George Evans Gwaze was acquitted by a jury of the sexual violation and murder of his ten year old niece, Charlene Makaza. Before the verdicts were obtained and the acquittal entered, the Crown applied to reserve questions of law for the determination of the Court of Appeal under's 380 of the Crimes Act. The questions became the subject of a case stated by the trial Judge. They arose out of the Judge's admission of hearsay expert opinion statements bearing on the cause of Charlene's death, over the objection of the Crown. The information contained in the statements had become available unexpectedly and at a late stage (when the trial had been underway for nearly three weeks) through an encounter at a conference in Hong Kong between a Crown medical witness, Professor Beasley, and Professor Rode, a South African paediatric surgeon with experience of HIV and AIDS in children. Charlene had HIV, but had not developed AIDS.

5 The Crown case at trial was that the cause of Charlene's death was suffocation which left her with brain damage. It maintained that Charlene had been suffocated during a severe sexual attack which left her with anal and vaginal tears without plausible innocent explanation. She also initially presented with watery diarrhoea when taken for medical treatment. The defence case at trial included alibi evidence, evidence of lack of opportunity, and character evidence but, in addition, a principal plank of the defence was that the Crown had not excluded sepsis as the cause of Charlene's death. Such sepsis it was suggested had overwhelmed Charlene because of her underlying HIV condition. The Crown expert witnesses could not exclude the possibility that the cause of death was overwhelming sepsis, but expressed the opinions that cause of death was suffocation. Important in that assessment were the injuries. The defence suggested that the anal and genital injuries could have been caused by nursing treatment before Charlene's death. It criticised the fact that the Crown had not sought better expert evidence about HIV.

6 The remarks made by Professor Rode were reported by Professor Beasley in telephone conversations from Hong Kong to Detective Johannsen and recorded by him in job sheets of 14 May and 16 May 2008. There was also an email sent on 16 May from Crown counsel to defence counsel conveying the details of a telephone call on 15 May from Professor Beasley to Crown counsel. In the first communication, relating a conversation between Professor Beasley and...