Ballantyne v The Queen

[2019] NZCA 596

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA438/2017
 [2019] NZCA 596

BETWEEN	ANTHONY BALLANTYNE Appellant
AND	THE QUEEN Respondent

Hearing:	23 September 2019
Court:	Stevens, Ellis and Peters JJ
Counsel:	Appellant in person A J Ewing for Respondent J P Temm as counsel to assist the Court
Judgment:	28 November 2019 at 12.30 pm

JUDGMENT OF THE COURT

A        The application for an extension of time to appeal is granted.

B        The appeal is dismissed.  

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

Table of Contents

Para No

Introduction

The central prosecution narrative

Mr Ballantyne’s accounts

Procedural history of the appeal and the development of the grounds of appeal

The alleged non-disclosures

“Orthodox” non-disclosure

The ESR files
First working file
Second working file
Observations on police disclosure of ESR material

Relevant forensic evidence not disclosed or put before the Court

“Non-disclosure” of exculpatory evidence

Hair

Toxicology
Congealed blood
“Boot print”
“Unidentified fingerprints”

Fingernails
Murder weapon
Blood transfer

Conclusion and result

Introduction

1. In May 2016, following an eight-day jury trial in the Hamilton High Court, Mr Anthony Ballantyne was convicted of murdering his friend, Mr Ivan Kapluggin, in February 2015.  He now appeals that conviction, largely on the grounds of alleged disclosure and forensic failures. 

2. Although at trial Mr Ballantyne was represented by Mr Thomas Sutcliffe, he represented himself on appeal.  This Court appointed Mr Jonathan Temm to assist and we record our gratitude to him, at the outset.

3. Before we set out the narrative of the Crown’s case against Mr Ballantyne, it is useful to record that one difficulty he faced at trial, and again in this appeal, is that he maintains he has no actual recollection of the critical events.  His starting point is, and remains, that he could not possibly have killed his friend that night.  Fuelled by this belief, he has spent much time since then attempting to piece together an alternative thesis, based on the evidence as it has evolved over time. 

4. At trial, Mr Ballantyne maintained that Mr Kapluggin must have been killed by another friend, Mr Graham Dowling who (Mr Ballantyne posited) was aided (after the fact) by another local man, Mr Daniel Heaney.  However, in light of the evidence that the progress of Mr Dowling’s Parkinson’s disease had likely rendered him physically incapable of attacking Mr Kapluggin, his position now is that it must have been Mr Heaney who killed him and Mr Dowling who assisted with the clean-up.

5. We return to these matters in more detail, later.

The central prosecution narrative

1. Mr Kapluggin was 76 at the time of his death.  He lived in Thailand with his wife, but still owned property in Waikino, south of the Coromandel Peninsula.  In February 2015 he returned to New Zealand to make some arrangements relating to that property; the evidence of his brother, David, was that he was planning to sell it. 

2. Mr Ballantyne was an old friend of Mr Kapluggin. He lived in Whangamata.  On 2…