COURT OF APPEAL OF NEW ZEALAND

THE QUEEN V GEORGE EVANS GWAZE (CA90/09) CASE SUMMARY This summary is provided to assist in the understanding of the Courts judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at Judicial Decisions of Public Interest http://www.courtsofnz.govt.nz/from/decisions/judgments.html The Court of Appeal has, by a majority, dismissed the appeal on the three questions of law reserved by the trial Judge, Chisholm J, during the trial of George Evans Gwaze. Mr Gwaze was tried before the trial Judge and a jury on two counts of sexual violation and one count of murder. The jury found Mr Gwaze not guilty on all three counts. During the trial Chisholm J was required to address an admissibility issue which he eventually resolved in favour of the defence. The issue arose after an expert, who gave medical evidence for the Crown, travelled overseas and discussed the details of the case with another medical expert, Professor Rode. Professor Rodes comments, which favoured the defence case, were then relayed to the police and admitted as hearsay evidence by the trial Judge. The trial Judge declined the Crowns request to abort the trial and also ruled that the defence counsel was not required to recall a Crown expert to cross-examine her on the hearsay evidence. Prior to the verdicts being returned, the Crown prosecutor invited the trial Judge to reserve three questions of law relating to these events. This procedure is permitted by sections 380 and 382 of the Crimes Act 1961. The Crown later requested the trial Judge state a case for the opinion of this Court on those questions. The questions of law stated for this Court were, first, whether trial Judge was correct to admit the hearsay statements of Professor Rode as evidence. Secondly, whether the trial should have been aborted. Thirdly, whether the Crown expert should have been recalled to have the hearsay evidence put to her. In relation to the first question, the majority of the Court, Young P and Baragwanath J, considered that Chisholm Js decision to admit Professor Rodes statement was based on factual findings, rather than amounting to an error of law. Both Judges held that the Court did not have jurisdiction to answer the second question, as the decision not to abort the trial turned on the trial Judges discretionary assessment of the competing merits of the proposed course of the trial. The third question was seen as relating to case management rather than a question of law. On this basis the appeal was dismissed as the questions were not erroneous in law.

In a dissenting judgment, Hammond J considered that Mr Gwazes acquittal should be set aside and a new trial ordered. This is because Chisholm J erred in law by admitting into evidence Professor Rodes hearsay statements; that improperly admitted evidence had a misleading effect and brought about a miscarriage of justice; and that consequence could have been avoided, but was not, by Chisholm J aborting the trial. In Hammond Js view, there was a sufficient degree of probability of conviction that it is in the interests of justice for a new trial to be directed.