Sources of discomfort, W K Hastings

Murder That Wasn’t: The Case of George Gwaze 
Felicity Goodyear-Smith
Otago University Press, $35.00,
ISBN 9781877578991

Part of me wishes this book had not been written. It makes for uncomfortable reading. It is, of course, perfectly legitimate for an author to induce a sense of discomfort amongst her readers. Some of my discomfort, however, lies in the rather long bow the author invites us to draw from the facts of this deeply sad and, in the words of the author, extraordinary case, that will almost certainly never be repeated. Singular cases do not often form the basis of general inferences, and this case is no exception. But first to the legitimate sources of discomfort.

This book is about the two trials of George Gwaze (in 2008 and 2012) for the alleged rape and murder of his adopted daughter Charlene. By all accounts, Charlene was an attentive and pretty child. Her photo, and George’s, are on the cover. In contrast to George, Charlene smiles sweetly into the camera. George, on the other hand, is not smiling. He looks at us accusingly and conveys a deep sense of injustice. The family came to this country from Zimbabwe in the hope of leading better lives under the rule of law. Needless to say, the rule of law is not Zimbabwe’s strong point.

The first chapter introduces us to Charlene and George. It briefly recounts their lives in Zimbabwe, much as their resumés might, or a decision of the Immigration and Protection Tribunal. The account records movements, schools attended, members of the wider family, and the fact that Charlene was a sickly child. It does not provide any deeper insight into their personalities or motivation. Their characters not having been fleshed out, they become lost in the subsequent chapters describing in detail Charlene’s illness and death, and George’s trials. George and Charlene are integral to this story, yet they remain largely one-dimensional vehicles that are used to convey detailed matters of science and law. The humanity of their story feels sacrificed. I wanted more Hamlet in the play.

This lack of humanity is a legitimate source of discomfort. It is easy to lose sight of the human beings who are the catalysts for sometimes technical legal and medical debate. Another legitimate source of discomfort arises from the manner in which an incorrect diagnosis of Charlene’s condition appears to have narrowed the police investigation. In part, the police are not to blame. They are not medical experts. They are entitled to give some deference to the opinions of those who are. The central issue was the origin of Charlene’s anal lacerations. Were they from within, the result of HIV, or from without, the result of blunt force trauma? After two trials, the answer was the same. But linking Charlene’s injuries with assumptions that African men have sex with virgins to cure HIV was not only illogical, because George did not have HIV, it narrowed the investigation by giving insufficient attention to the question of whether a crime had been committed in the first place. Only when that question had been answered affirmatively should the second stage of ascertaining who committed it have begun.

Now to the illegitimate sources of discomfort. It is not until chapter six that we learn that the author was instructed by the defence lawyers. She criticises late disclosure of briefs of evidence on the part of the prosecution, but does not seem concerned by her own in the writing of this book. The reader cannot help but feel suspicious that the factual account up to this point might be less than impartial.

The next source of discomfort lies in the accounts of both trials. They appear to have been taken from the notes of evidence, the transcripts of the trials, and summarised. Each witness is given a paragraph relating to their examination-in-chief, and a paragraph about their cross-examination. This formula is repeated for each witness. Although sourcing the transcripts lends accuracy to the summaries and counters to some extent that suspicion of partiality, it does not make for exciting prose. It also makes chapter 11 entirely unnecessary. This chapter summarises the evidence of four experts the author found for the defence. The following chapter then repeats this same evidence as they gave it in court. I do not think this would have happened had the author not been so closely associated with the defence. Once is enough.

Having acknowledged that this was a singular case unlikely to be repeated, the author offers her opinion on various aspects of the criminal justice system that could be improved as a result of the case. Although there are undoubtedly aspects of the criminal justice system that could be improved, I am not convinced that they should be improved as a result of this particular case. It is difficult for the defence to obtain funding for experts. Prosecution witnesses should not be amending briefs immediately before and during a trial. Expert witnesses should be mindful of conflicts of interest and their duty to the court. Police should be more sceptical of expert opinion. These issues are not, however, unique to this trial. And, in the end, the legal system produced the correct result in this instance.

The case reveals something much more significant. I cannot understand how this poor sweet little girl was not diagnosed HIV positive until a few hours before her death. This shows the enormous stigma the disease continues to carry here and abroad. Charlene was given medication for various ailments in Zimbabwe and New Zealand, but she was given nothing to manage the underlying cause of these ailments because she was never tested for HIV, even through the immigration process. Had she been diagnosed earlier and given anti-retroviral medication, the virus would not have advanced to the stage it did, and none of this would have happened.

More importantly, Charlene would have been alive today. And that is the great tragedy of this story. Charlene’s story is the story of a little girl whose life was lost through fear of stigma and whose memory is tainted by a forensic examination of the manner of her death. She should not have had to live with such ill-health. She should not have had to die this way. And she should not be remembered merely as a catalyst for legal change. She was much more important. She is a little girl lost.

W K (Bill) Hastings is a judge in the District Court.

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Posted in History, Non-fiction, Politics & Law and Review
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