Murder That Wasn't: The Case of George Gwaze

Published by Otago University Press

Level 1, 398 Cumberland Street

Dunedin, New Zealand

university.press@otago.ac.nz

www.otago.ac.nz/press

First published 2015

Copyright © Felicity Goodyear-Smith

The moral rights of the author have been asserted.

ISBN 978-1-877578-99-1 (print)

ISBN 978-1-927322-76-5 (Kindle)

ISBN 978-1-927322-77-2 (ePub)

ISBN 978-1-927322-78-9 (ePDF)

A catalogue record for this book is available from the National Library of New Zealand. This book is copyright. Except for the purpose of fair review, no part may be stored or transmitted in any form or by any means, electronic or mechanical, including recording or storage in any information retrieval system, without permission in writing from the publishers. No reproduction may be made, whether by photocopying or by any other means, unless a licence has been obtained from the publisher.

Publisher: Rachel Scott

Editor: Gillian Tewsley

Design/layout: Fiona Moffat

Index: Diane Lowther

Ebook conversion 2016 by meBooks

Main front cover photograph by Guy Frederick

CONTENTS

Front Cover

Title Page

Copyright

Foreword Mark Henaghan and Harlene Hayne

Acknowledgements

Abbreviations

Prologue

Chapter 1: Who is Charlene?

Chapter 2: Charlene’s final illness

24 Hour Surgery in Bealey Avenue

The Emergency Department

Chapter 3: A change of diagnosis

In intensive care

Chapter 4: The family’s life changes forever

Initial police investigations

The autopsy

The investigation continues

Child, Youth and Family involvement

Charlene is buried and the family returns home

Sperm on the underpants

Chapter 5: After the arrest

Investigations continue

Depositions

Chapter 6: Enter expert witnesses for the defence

My role as medical adviser for the case

Assessing the forensic science

A dearth of expert witnesses in New Zealand

Chapter 7: The first trial

The case for the prosecution

Evidence by hearsay

The case for the defence

Chapter 8: Short-lived freedom

Post-trial report commissioned by the Crown

Family Court hearing

Hearing in the Court of Appeal

On to the Supreme Court

Chapter 9: The waiting days

Four years in limbo

Earthquakes

Chapter 10: Further forensic testing

Explaining the forensic science

Results of the DNA tests

Petroleum jelly

Chapter 11: Expert medical witnesses for the second trial

Professor Sebastian Lucas, world expert in HIV histopathology

Professor Michael Sharland, expert in infectious diseases in children

Dr Simon Nadel, children’s intensive care consultant

Dr Nathaniel Cary, Home Office forensic pathologist

Dr David Hammer, microbiologist

Chapter 12: Double jeopardy in action

The retrial

Witnesses called by the Crown

Medical expert witnesses called by the Crown

Forensic scientist witnesses called by the Crown

Further Crown evidence from police

Case for the defence

The verdict

Chapter 13:Legal ramifications

The influence of medical opinion on the investigation

Medical expert witnesses for the prosecution

Timing of the briefs provided by the Crown expert witnesses

Difficulty obtaining expert witnesses for the defence

Reliance on DNA evidence

The challenge of double jeopardy

Majority verdicts

Publication of the case in the scientific literature

Chapter 14: Good versus bad science

Good science tests hypotheses

With the best of intentions

Evidence gathering by the ESR

Reporting and interpretation of the clinical findings

Autopsy focused on sexual trauma and suffocation

When does good science turn bad?

Chapter 15: Conclusion

Shared idée fixe

Hickam’s Dictum not Occam’s Razor

Did racism play a role?

What did it all cost?

Aftermath

Notes

Index

Back Cover

Foreword

GEORGE GWAZE, a veterinary surgeon from Zimbabwe, emigrated to New Zealand in 2004 to join members of his family who had already moved here to escape the difficult political and economic climate in their homeland. Over time, he was joined by his wife, his remaining children and two of his nieces.

In 2007 Mr Gwaze was accused of the murder and sexual violation of one of his nieces, 10-year-old Charlene. He was tried twice; both times New Zealand juries found him not guilty of the charges against him, and he was eventually exonerated.

This book chronicles the real harm that can be done to an individual and their family when medical professionals, investigators and prosecutors appear to make assumptions about an individual’s guilt and then consider only the evidence that appears to support that outcome. In telling the Gwaze family’s story, the author illustrates how this kind of closed-minded approach emerges, how it is perpetuated during the course of an investigation, and ultimately how it damages the individuals who are subjected to it.

Felicity Goodyear-Smith has very carefully worked her way through the complex scientific and medical evidence, the court records and the individual interviews of those involved in this tragic case. This book is a salutary reminder of how the fact-finders’ mindsets can influence their acceptance, rejection, recall and interpretation of objective scientific and medical data, so that alternative explanations that are more consistent with the evidence are never considered or adequately tested.

This book should be compulsory reading for all police investigators, Crown prosecutors, criminal defence lawyers and frontline medical professionals. It makes a significant contribution to our understanding of the forensic process in New Zealand criminal trials. Most importantly, it provides a human face to a process that sometimes goes terribly wrong, leaving a trail of human misery and injustice in its wake.

PROFESSOR MARK HENAGHAN

Dean of the Faculty of Law

University of Otago

PROFESSOR HARLENE HAYNE

Professor of Psychology

University of Otago

Acknowledgements

There is a large number of people who need to be acknowledged. In particular I would like to thank Dr Arie Geursen, who made a significant contribution to the sections on forensic evidence and good versus bad science.

Thanks also to defence lawyers Mr Jonathan Eaton QC, Ms Helen Coutts and Mr James Rapley for their contributions to the case and to this book. I would also like to acknowledge the medical experts Professor Sebastian Lucas, Professor Michael Sharland, Dr Simon Nadel and Dr Nathaniel Cary, who were prepared to take on this case on the other side of the globe, making themselves available at inhospitable hours to attend the court via videolink or, in the case of Professor Lucas, travelling to earthquake-torn Christchurch to give evidence in person.

Of special mention of course are the Gwaze family, who met with me to share their stories after the second trial. I would like to thank them for their patience and honesty. Throughout the terrible ordeal, not only of losing their beloved Charlene but then being falsely implicated in her illness and death, the family have stood strong. They have faced the personal attacks, the wrongs meted out by the justice system and the dreadful disruption to their lives with courage and with dignity. They believed that eventually the truth would prevail. With respect to the courts, it has. I hope this book further disseminates the truth of what happened to Charlene Makaza. I also hope that it contributes to ensuring our forensic processes become more open and scientifically robust, to prevent other tragedies like this from happening.

Abbreviations

Prologue

AT 6 AM on Saturday 6 January 2007 a Christchurch woman goes into her 10-year-old daughter’s bedroom to find her unresponsive, gasping for breath, with a high fever and lying in a pool of diarrhoea. She wakes her husband and an older daughter, they carry the child to the car and rush her to the local 24-hour clinic, where she is given emergency intravenous antibiotics for presumed acute infection. An ambulance is called and by 7.20 am she is in the emergency room at Christchurch Hospital. A team of doctors and nurses work on resuscitating her but she remains critically ill. She is moved to the intensive care unit and a helicopter is dispatched from the Starship Children’s Hospital in Auckland to transfer her to New Zealand’s paediatric intensive care facility. Her mother rushes home to pack a small bag before accompanying her daughter to Auckland.

By two o’clock that afternoon the scene has dramatically changed. The diagnosis has changed from septic shock to one of violent sexual assault and attempted suffocation. The police are called and start to interview the family. When the Starship team arrive it is clear that the girl is dying and nothing can be done to save her. At 7.30 pm the forensic pathologist is alerted that he will soon be seeing a case of suspected sexual abuse and suffocation. The girl dies at one o’clock the following morning. That day the media reports that she has died from suffocation by another person. After a police investigation her father is arrested for her murder on 2 February 2007. The life of this family has changed forever.

What unfolds next is a surreal set of events so improbable that they seem fictitious. This book meticulously explores the facts surrounding this case, based on scientific, medical and court records and individual interviews, to give a true account of this family’s extraordinary story.

CHAPTER 1

Who is Charlene?

CHARLENE NYASHA MAKAZA was born in Zimbawe on 7 July 1996 to Senzeni Maposa and Edgar Makaza.¹ The couple had another daughter, Charmaine Chiedza Makaza, born 26 November 1994.² Senzeni was not well and was unable to look after her baby. When Charlene was seven months old, Senzeni’s older sister Sifiso and her husband George Evans Gwaze took Charlene into their care. George and Sifiso already had four children of their own: sons George Tendai Gwaze (George Junior, 14) and Tafadzwa Evans Gwaze (11), and daughters Maggie Gwaze (16) and Nothando Rumbidzai Musesengwa Gwaze (10). Sifiso also had a daughter from a previous relationship, Lilian Nokuthlula Maposa (20). For Charlene, her aunt and uncle Sifiso and George³ were now her parents, and her cousins were her older siblings.

While her sister Charmaine was a bright, healthy little girl, baby Charlene was not. At one year old she was failing to thrive: she was tiny, and was found to have an enlarged liver, spleen and lymph nodes.⁴ Her family doctor noted that both her parents had a ‘history of immunodeficiency’. She was prescribed antibiotic and antifungal drugs which she took regularly for most of her childhood. By November 1997 her condition had improved a little. Charlene continued to see her family doctor on a regular basis, suffering from frequent coughs and colds, headaches, tonsillitis and episodes of diarrhoea; on at least one occasion associated with the passing of blood.⁵ She received all her childhood vaccines, including protection against tuberculosis.⁶

In June 1998, just before Charlene turned two, her mother Senzeni died from tuberculosis.⁷ She was 35. The length of her illness is recorded on her death certificate as two months, although she had been unwell for over two years. Charmaine, now aged four, also came to live with George and Sifiso, who treated her as their daughter; both girls called Sifiso ‘Mum’.⁸ Two years later, in 2000, their father Edgar died at the age of 39, from kidney failure and blood poisoning.⁹ In hindsight, it is clear that the ‘immune deficiency’ suffered by this young couple and the illnesses that subsequently took their lives were the result of human immunodeficiency virus infection. HIV/AIDS is a taboo subject in many parts of Africa. Among the public there is a huge fear of being ‘found out’ that they have HIV, or that there is HIV infection in their family, so it is often not formally diagnosed or, when it is, it is kept secret – even at death.

What is also clear is that Charlene acquired HIV from her mother – either in the womb or possibly through breastfeeding – while her older sister Charmaine escaped the disease. It is likely that Senzeni and Edgar acquired HIV sometime between the births of Charmaine in November 1994 and Charlene in July 1996. Charlene was not diagnosed as HIV positive, but she was given daily doses of the antibiotic cotrimoxazole from the age of three to nine years¹⁰ – a treatment that has been shown to reduce deaths from HIV in African children.¹¹ If a person has progressive HIV or AIDS, they may get an acute and overwhelming sepsis in response to infection from microorganisms (bacteria, virus or fungus) that a normal person would be able to fight off easily. This is the basis for giving routine antibiotics.

In 2004 Charlene’s family doctor performed a blood test to assess her T-lymphocytes – a test that monitors the status of HIV-positive people – although she had never actually been tested to determine whether or not she was HIV positive.¹² The results did not indicate that Charlene had HIV disease, although the ratio of types of T-lymphocytes in Charlene’s blood suggested this was a possibility.¹³ Clearly the family doctor suspected that she might be HIV positive, given her condition since birth and the nature of the illnesses that killed her parents, the routine antibiotic treatment he prescribed for her, and the fact that he arranged for the T-lymphocyte test to be done. Sifiso and George also may have considered the possibility that Charlene might be HIV-positive, but this was never formally diagnosed nor discussed with them by their GP.

Antiviral drugs are now available that can prevent the progression of HIV; however, these are very expensive and would not have been obtainable for Charlene in Zimbabwe. In developing countries, between a third and half of HIV-infected children who do not receive antiviral therapy die within the first two years of life.¹⁴ Children who survive the first two years may live up to 12 years without developing AIDS. Children brought up in poverty, though, have a much lower survival rate.¹⁵

George Gwaze was born in Rhodesia (later Zimbabwe) in April 1952. A friend of his writes:

I grew up with George Gwaze in the dusty streets of a ghetto called Harare then, now Mbare. We went to Boys’ Club together where we participated in various sport disciplines in both outdoor and indoor sports and went to St Francis Xavier College (Marist Kutama) for our secondary education. George was of exemplary character – quiet and religious. He was even an altar boy, helping the priests with Mass … All of us came from poor backgrounds and literally pulled ourselves up by our bootstraps.¹⁶

After four years of secondary education George passed the Cambridge School certificate examinations at Ordinary level. He completed his final two years of secondary education at Advanced level at Goromonzi High School on the eastern outskirts of Harare.

In 1974 at the age of 22 George enrolled to study veterinary science at the University of Ibadan in southwestern Nigeria. At that time there was a civil war in Rhodesia: the African majority was clamouring for total independence from the minority regime led by Prime Minister Ian Smith.

George completed a Bachelor of Veterinary Medicine in 1979. He had first met Sifiso Maposa during his secondary school days, when he went to school with her brother Clement. After she left secondary school Sifiso had a daughter, Lilian Maposa, born in 1975. Later Sifiso and George became sweethearts, and she lived with him for some of the time while he was studying in Nigeria. Their first child, Maggie, was born in 1980.

Because of the war in his home country, George went to neighbouring Botswana where he worked for two years as a qualified veterinary surgeon. Rhodesia regained its independence as Zimbabwe in 1980 and by 1982 George was able to return home, where he continued to work as a vet. George and Sifiso married in 1983. By then Sifiso was pregnant again; she remained in Zimbabwe with her daughters while George went to the United Kingdom for a year, where he completed a Masters in Veterinary Science at the University of Liverpool. Their first son, George Junior, was born while George was in England.

When he returned to Zimbabwe, George was employed as the provincial veterinary officer for the government. The family purchased a large four-bedroom house in the capital city, Harare. More children followed: a second son, Tafadzwa in 1985 and daughter Nothando in 1987. By 1997, when baby Charlene joined the family, George and Sifiso were sleeping in the upstairs master bedroom, the two boys shared a room, Maggie had a room of her own, and Charlene and later Charmaine shared a room with Nothando. Sifiso’s daughter Lilian had already left home: she was married in 1994, although the dowry was paid and the formal wedding took place in December 2000.¹⁷ Lilian and her husband, Irvine Kombora, were both professionals and ran their own family farm.

Charlene and Charmaine became part of the Gwaze family. According to Maggie, all the children had attended Blakiston Primary School, about a 10-minute drive or a 30-minute walk from their house. George was very protective of them and never allowed them to walk home because he thought it was not safe, even though it was a middle-class neighbourhood. He would drive 30 minutes from his workplace to pick them up from school and then drive them home. Maggie says, ‘Charmaine and Charlene received the red carpet treatment from my dad; he even carried their little satchels for them to the car. They were always picked up on time from school and always got spoilt on the way home.’ There were nearly 40 grandchildren in the extended family, and Charlene was the baby; according to Maggie, she soon learned to take advantage of this.

She knew everyone doted on her and she made sure her little voice was not missed in the family. Charmaine and Charlene seemed to get away with so much more with my mum making the excuse that they didn’t have birth parents so we should treat them like little princesses. If anything, they were pretty spoilt!

Nothando and Charmaine confirm that Charlene was a favourite in the family. Her small stature and ill health may have contributed to the way her aunts and other relatives would bestow gifts and treats on her.

By the time the older children were completing high school, there was increasing trouble in Zimbabwe. In 1990 an amendment to the University of Zimbabwe Act gave the government more powers to interfere in the running of the universities, and there were accusations by staff and students of loss of academic freedom. During the 1990s there were an increasing number of student protests and mass expulsions of students: attending university in Zimbabwe was not a viable option. In 2000 the family arranged for Maggie to go to South Africa to study; she graduated in 2003 with a Bachelor of Business Science in Actuarial Science from the University of Cape Town. However, the family faced financial and political barriers that prevented her younger siblings from going to university outside of Zimbabwe.

The political climate in Zimbawe was increasingly destabilising, and life there was becoming untenable for the family. Lilian and Irvine Kombora decided to emigrate to New Zealand to give their children a better future. Irvine went first, in December 2001, and was joined by his wife Lilian and their son Bongani (Ronald) in March 2002. Initially Irvine worked on a farm in Invercargill.

With the national economy in ruins and the disruption of farms in Zimbabwe in the 1990s, it became more difficult for George to work as a vet. He, too, wanted a better education for his children. In April 2002 George Junior, then aged 19, joined Lilian and her family in Southland.¹⁸ He had been educated at the prestigious Prince Edward School in Harare, a public school for boys founded in 1898. By the time George Junior attended it was a mixed-race school with whites, blacks and coloured students.¹⁹ He was an excellent tennis player, and as well as wanting to go to university, he hoped to pursue a career on the world tennis stage.

In September 2003 the Kombora family and George Junior moved to Christchurch, where there was a small Zimbabwean community. Lilian worked as an administrator at the Southern Institute of Technology. For some time Irvine worked as a packing operator for Fonterra; he subsequently ran his own company as a business consultant.²⁰

By August 2004 George had moved to Christchurch to join them.²¹ Sky-rocketing inflation in Zimbabwe had rendered his savings worthless. He needed to work and earn money so that he could bring out his wife and the rest