George Gwaze leaving court with his daughter Maggie after his 2008 trial. Photo / Getty Images
"Bombshell evidence" given in a trial that acquitted a Christchurch man of murdering his 10-year-old niece was misleading hearsay, the Court of Appeal has been told.
Charlene Makaza died in hospital in January 2007 after being found in a pool of diarrhoea in her bed, having breathing difficulties.
Zimbabwean George
Gwaze was found not guilty in May last year of raping and murdering her.
The Crown today asked the Court of Appeal to overturn the verdicts, saying evidence presented by the defence during the trial had had an unfairly prejudicial effect on the trial.
The Crown claimed Charlene, who lived with Mr Gwaze and his family in Christchurch, died of suffocation after a sex attack in her bed, while the defence said she had died of an infection.
During the trial, South African paediatric surgeon Heinz Rode testified in a statement that Charlene's symptoms were similar to those of Aids victims in South Africa.
Charlene had been HIV-positive since birth.
The Crown told the jury Prof Rode had reviewed the information and was of the view that Charlene's case might have been one of sexual assault and suffocation, but wanted to confer with his colleagues.
"This is where the case fell off the rails, because Professor Rode was not given sufficient time to consider the evidence," crown prosecutor Brendan Horsley said today.
The statement, which was the defence's "bombshell evidence", was offered incorrectly as an expert opinion of how Charlene had died, Mr Horsley said.
In allowing Prof Rhode's evidence as an expert opinion, Mr Horsley said the judge had let in an opinion that was neither qualified, nor based on the evidence.
"It was basically used as `look, all your experts are saying this is a sexual assault, but you wouldn't have a clue. You have no experience with HIV'," he said.
"That was the end of the Crown's case, they could not prove beyond reasonable doubt then."
The Appeal Court is expected to reserve its findings.
- NZPA
