A Christchurch man acquitted last year of murdering his niece was back in court today to witness the Crown appealing the verdict.
Zimbabwean George Evans Gwaze was found not guilty in May last year of raping and murdering 10-year-old Charlene Makaza.
The Crown is appealing the verdicts based on the "hearsay evidence" of South African paediatric surgeon Heinz Rode.
At the High Court trial in Christchurch, the Crown alleged Charlene, who lived with Mr Gwaze and his family, died of suffocation after a sex attack in her bed .
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.
The defence 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 the Court of Appeal today, the Crown argued it didn't get a fair trial, questioning the reliability of what it said was hearsay evidence of Dr Rode.
Under double jeopardy law, a suspect can't be trialled twice for the same alleged offence.
But the Crown is arguing double jeopardy only applies when someone has been acquitted after all legal processes have been exhausted, One News reported tonight.
The Crown said that was not the case with Mr Gwaze.
The defence maintains Charlene died of natural causes and that it is not acceptable to push for a retrial when a jury has already returned a not guilty verdict.
A High Court decision is not expected for weeks.
