Crown goes to the top in bid for retrial

Charlene Makaza. Photo / Supplied

The Crown is making an unprecedented second bid to have a man retried for the rape and murder of his 10-year-old niece, as police maintain her death was not a result of her HIV infection.

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

Her uncle and adopted father, George Gwaze, was subsequently charged with the murder and sexual violation of Charlene, but was acquitted of the charges after a trial in the High Court.

The Crown took the unusual step of appealing to the Court of Appeal, which rejected its bid to have Mr Gwaze face a retrial. The decision was split, with one of the three judges saying there should be a new trial.

An application has now been lodged with the country's highest court. The Supreme Court must grant leave to hear the appeal, before the Crown can put its case for a new trial.

Crown Law Office spokeswoman Jan Fulstow said there had not been a court matter proceed like this before.

Evidence was given in Mr Gwaze's High Court trial that Charlene had suffered anal and genital injuries likely to have been caused by force, and his semen was found in her underwear.

But Mr Gwaze's defence was that Charlene's death was the result of complications of her HIV infection, and the semen could have been transferred to her underwear when the washing was done.

Key evidence in the trial came from statements relayed to the court from South African paediatric surgeon Professor Heinz Rode, who said Charlene's symptoms seemed consistent with a group of HIV patients he had dealt with in South Africa.

However, he later stated he did not consider his comments had been sufficiently well considered in the circumstances to have gone before the jury. Because of its concerns about the evidence of Professor Rode, the Crown chose to seek a retrial.

The Gwaze family, who are convinced Mr Gwaze is no killer, declined to comment about the case this week.