The Court of Appeal, in a majority decision, today dismissed a crown appeal against the acquittal of George Evans Gwaze.
Mr Gwaze was found not guilty, by a jury in the High Court at Christchurch in May last year, of raping and murdering Charlene Makaza.
In July this year the Crown asked the Court of Appeal to overturn the verdicts.
The appeal was based on "hearsay evidence" of South African paediatric surgeon Heinz Rode late in the trial.
He 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 claimed Charlene, who lived with Mr Gwaze and his family in Christchurch, died of suffocation after a sex attack in her bed in January 2008.
Charlene was found by her aunt in bed having breathing difficulties and was rushed for medical treatment, but died in hospital some 18 hours later.
Medical evidence was given that damage to Charlene’s genital and rectal areas indicated she had been sexually assaulted. Sperm from Mr Gwaze was found on her underpants.
But defence counsel Jonathan Eaton said the death resulted from an infection that had overwhelmed Charlene, who had been HIV positive since birth.
Evidence suggested the sperm could have been the result of an "innocent transfer" in the family’s washing.
In today’s decision, Justice Sir William Young, president of the Court of Appeal, and Justice David Baragwanath both considered trial Judge Lester Chisholm’s decision to admit Prof Rode’s statement was based on factual findings rather than amounting to an error of law.
Both judges held that the Court of Appeal did not have jurisdiction to answer the Crown’s question of whether the trial should have been aborted.
A third question on whether a crown expert should have been recalled to have the hearsay evidence put to her, 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.
But the third member of the Court of Appeal, Justice Grant Hammond, in a dissenting opinion, said he considered Mr Gwaze’s acquittal should be set aside and a new trial ordered.
Justice Hammond considered that Justice Chisholm erred in law by admitting into evidence Prof Rode’s hearsay statements and that improperly admitted evidence had a misleading effect and brought about a miscarriage of justice.
That consequence could have been avoided by Justice Chisholm aborting the trial, Justice Hammond said.