Retrial persecution, say accused's family

George Gwaze was acquitted of raping and murdering HIV-positive Charlene Makaza in 2008. Photo / NZPA

A family claim they are being persecuted after a legal first forcing a man cleared of the rape and murder of his HIV-positive niece to go on trial again.

Parties involved in the case of Zimbabwean immigrant George Gwaze yesterday found themselves grappling with what happens next after the Supreme Court quashed his acquittals and directed a new trial be held.

This is the first time the Crown has gone down this path to get a criminal retrial from the higher courts.

Charlene Makaza, 10, lived with her extended family in Christchurch after being orphaned in Zimbabwe. She was found unresponsive in her bed on January 6, 2007, and later died.

A Christchurch High Court jury found Gwaze not guilty of the rape and murder of Charlene in a trial in 2008.

The defence was that Charlene's death was the result of infection relating to her HIV, and evidence was presented from paediatric surgeon Professor Heinz Rode that Charlene's symptoms were similar to those of South African Aids victims.

However, Professor Rode later expressed concern his statement was used in court, and the Crown appealed to firstly the Court of Appeal, then to the Supreme Court, saying this evidence should not have been heard.

Gwaze's daughter, Maggie, said the Supreme Court decision was very disappointing.

"I think this is more of persecution than prosecution now," she said.

"If there's ever been a display of discrimination and racism in New Zealand, this is the best of it.

"It's because of where we come from and who we are.

"This is what I call death of justice, and death of integrity."

Her family could now only show up in court again and "see what they have in store for us", she said.

Inspector Malcolm Johnston, who led the investigation into Charlene's death for the police, welcomed the Supreme Court's decision, but said he could not comment any further with another trial looming.

Both the Court of Appeal and Supreme Court found that the evidence of Professor Rode should not have been heard by the jury, but only the Supreme Court found this to be an error of law, and therefore upheld the appeal.

In its decision, the court said: "The circumstances that lead us to that conclusion are the seriousness of the alleged offending and the opinion now available from Professor Rode that makes it clear that he does not support the defence contention at trial as to cause of death and the reasons for the symptoms displayed by Charlene."