Ballantyne v The Queen
[2019] NZCA 596
•28 November 2019 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA438/2017 [2019] NZCA 596 |
| BETWEEN | ANTHONY BALLANTYNE |
| AND | THE QUEEN |
| Hearing: | 23 September 2019 |
Court: | Stevens, Ellis and Peters JJ |
Counsel: | Appellant in person |
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
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.
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.
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.
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.
We return to these matters in more detail, later.
The central prosecution narrative
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.
Mr Ballantyne was an old friend of Mr Kapluggin. He lived in Whangamata. On 2 February, as David was driving Mr Kapluggin from the airport to Waihi, Mr Ballantyne called Mr Kapluggin to make arrangements to meet.
Mr Ballantyne met the brothers at a petrol station, at around 5.30 pm. David left and Mr Ballantyne then drove Mr Kapluggin to his house at 202 Achilles Avenue, Whangamata. They arrived there at around 6 pm. Mr Kapluggin put his things in a bedroom, as he was planning to stay overnight.
The two men drank wine and whisky while they talked and listened to music. Mr Ballantyne cooked dinner which the men ate together while they continued to drink, outside on the rear deck of Mr Ballantyne’s house.[1]
[1]Between them, the two men drank two bottles of sparkling wine and a bottle of Glenlivet whisky. The evidence at trial was that Mr Kapluggin’s blood alcohol level was 211 mg per 100 ml of blood.
Mr Ballantyne’s next-door neighbours (the Vettoris) went to bed at about 11 pm. At that point the lights in Mr Ballantyne’s house were on and music was playing. The Vettoris noticed nothing unusual.
At around 11.30 pm, Mr Kapluggin’s brother missed a call from Mr Ballantyne’s number. The message left on his answerphone just sounded like music; no one was speaking.
Next, at approximately 1 am, the Vettoris heard their doorbell ringing. It was an old-fashioned brass bell with a cord attached. Mrs Vettori went to the door and called out, but saw no one there. The security light was on. Next door the lights were on and she heard voices — she thought she heard two men, one of whom she said sounded like Graham Dowling. At 1.37 am she called Mr Ballantyne’s house to check if anything was wrong. The line was busy.
Eight minutes earlier, at 1.29 am, Mr Ballantyne had called 111. He was emotional. He said he had woken up to find that his friend was dead. When he began asking “why”, the operator said he might have had a haemorrhage. Mr Ballantyne said “[n]o … there’s a knife there … [it’s] not in the shelf … where it’s supposed to be.”
We interpolate at this point that during his summing-up, the trial Judge (Brewer J) effectively endorsed the Crown’s submission that the male voices heard by Mrs Vettori were likely to have been Mr Ballantyne speaking to the first responder. But Mrs Vettori’s evidence that she had thought one of the voices sounded like Mr Dowling is important, because it is (almost certainly) the seed of Mr Ballantyne’s first alternative suspect theory, namely, that Mr Dowling was the killer.
But returning now to the narrative, the police arrived at Mr Ballantyne’s home around an hour later. They found Mr Ballantyne lying naked on the floor, just inside his front door; he crawled out. He had a cut hand. When police entered the house through a sliding door to the side of the house, they found Mr Kapluggin lying dead on a rug in the laundry, just off the hallway.
The Crown case was that what had happened earlier could be pieced together from the forensic scene examination:
(a)On the deck of the house was a table with wine glasses, empty wine bottles, and a whisky bottle. The wine glasses bore Mr Kapluggin’s and Mr Ballantyne’s DNA, confirming they had both been drinking. Mr Kapluggin’s blood was found on the arms of the chair he had been sitting in; both lenses of his glasses were lying loose on the deck; and bloodstains on the deck contained both Mr Kapluggin’s and Mr Ballantyne’s DNA. The clear inference is that the altercation started there.
(b)Mr Kapluggin’s blood was also found on the jamb of the ranch slider and on the curtains to the right inside it. Inside the hallway, blood spatter on another set of curtains was consistent with force being applied to an existing flow of Mr Kapluggin’s blood. His blood had also dripped and been smeared on the floor.
(c)Mr Kapluggin’s blood was smeared on the wall further down the hallway, in two separate deposits. Some of the bloodstains had the distinctive appearance of a stain transferred by bloody hair. Most of the blood appeared to be Mr Kapluggin’s, but one sample detected both Mr Ballantyne’s and Mr Kapluggin’s DNA.
(d)Mr Kapluggin was lying on a rug soaked in blood. The patterns of bloodstaining suggested both the rug and Mr Kapluggin’s body had been moved before reaching the positions in which they were found. As well as Mr Kapluggin’s blood, Mr Ballantyne’s blood was found on the floor near the fold in the rug.
(e)Under Mr Kapluggin’s body, obscured from sight, was a chef’s knife with a bloodied blade.
(f)In the kitchen sink was a meat cleaver, which had hairs stuck to it. There was evidence suggesting an attempt at clean-up: Mr Kapluggin’s blood was on the cleaver in dilute form, and dilute blood from Mr Kapluggin was also found around the sink and on the kitchen floor. Mr Ballantyne’s bloodied sarong was lying near Mr Kapluggin’s feet — it contained both dilute and “neat” blood, suggesting it had contacted water after becoming bloodstained (or had been wet to start with).
(g)When examined by a doctor the following morning, Mr Ballantyne had blood on his face, feet and both hands. He also had a cut to the palm of his right (dominant) hand, which in the pathologist’s view could have been caused by losing grip on a bloodied and slippery knife.
(h)Bloodstains containing both Mr Kapluggin’s and Mr Ballantyne’s DNA were found on the kitchen bench and the front door through which Mr Ballantyne had left. This was perhaps consistent with Mr Ballantyne’s hand — cut and bleeding, and also carrying Mr Kapluggin’s blood — contacting these surfaces.
(i)Outside the house, the Vettoris’ bell-pull was bloodstained. Mr Kapluggin’s DNA was extracted from samples taken from it. The Crown said this suggested the killer had rung the bell with bloodied hands.
Dr Fintan Garavan, a pathologist, concluded that Mr Kapluggin had died from blood loss, expedited by heart problems. He had several wounds — an eight cm cut across his face, partially severing his lower lip; a stab wound to the neck, more than six cm deep, that had severed a jugular vein; a seven cm cut through the soft tissue under his left ear; a four cm cut to the soft tissue of his neck; a superficial three cm scratch to his shoulder; and two stab wounds to the soft tissue of his back, each two cm across. Mr Kapluggin had also suffered blunt force trauma, evidenced by bruising and abrasions to his left eye socket and bruising on both arms and hips and his right leg. He had defensive cuts to his left hand.
Mr Kapluggin also had an eight cm “chop” wound to the back of his head, with an underlying skull fracture and penetration to the brain. This of itself would have been fatal. But because there was an absence of blood within the skull cavity, the pathologist concluded this wound was inflicted after Mr Kapluggin’s death.
Mr Ballantyne’s accounts
As we have said, Mr Ballantyne has consistently maintained he has no recollection of what happened. He has denied that he was responsible for inflicting any injuries on Mr Kapluggin.
In the immediate aftermath of the incident, Mr Ballantyne told a police officer: “I just don’t know how he died. I have a cut here on my hand so I am assuming that a knife was involved.”[2]
[2]He now says this cut was caused by a broken glass, the remains of which were found in a rubbish bin in the kitchen.
Next, when formally interviewed later on 3 February 2015, Mr Ballantyne told police that he and Mr Kapluggin continued to drink after their meal, but he had no knowledge of how Mr Kapluggin had died. He said he had been wearing his sarong and had gone to bed at around 9 or 9.30 pm, leaving Mr Kapluggin alone. He said his next memory was of waking up, naked, next to Mr Kapluggin’s body. He saw Mr Kapluggin’s back and realised he was dead. As he called 111, he instinctively looked towards the knife block and realised one was missing. This, he said, was how he was able to tell the 111 operator that a knife was involved in Mr Kapluggin’s death.
By 22 September 2015, Mr Ballantyne’s recollection had reportedly improved. In a letter to police he explained:
By now you are probably aware my memory has [partially] returned and it was Graham Dowling that fought with Ivan [Kapluggin], and Daniel Heaney helped him clean up and made it look as if I had killed Ivan. Graham is a good person and I believe if he was not there Ivan would have most likely killed me in his drunken, amnesia state, so I tried to do the right thing by him, and give him a chance to tell the truth, …
On 19 October 2015, Mr Ballantyne wrote in a similar vein to Daniel Heaney’s father, inviting him to pass the letter to police. Mr Ballantyne explained that he had invited Graham Dowling over on the night Mr Kapluggin was killed, and he and Daniel Heaney had then framed him:[3]
… late that night Ivan was very drunk and fell over in my outdoor alcove area and after I had [helped] him up and into his chair, and I was standing over him, he lashed out with his feet and got me several times … which caused me to fall back onto my wooden deck, knocking myself out. … My memory is not exact and I was unconscious when Graham fought with Ivan but he must have been covered in blood by the time Daniel arrived I do not know what Graham told Daniel to make him help him … I believe Graham saved my life because it is more likely that … Ivan got the knife and Graham was strong enough to have got the knife [off] Ivan, but Graham must have [panicked] due to his [Parkinson’s] and hit Ivan with the meat cleaver … But Graham took my lava lava after I lost it, when Ivan attacked me, and put it … in Ivan’s blood … at Ivan’s feet to make it look as if it was me that killed him, …
[3]Spelling mistakes have been corrected.
When police obtained telephone records confirming that Mr Dowling had not called Mr Heaney the evening Mr Kapluggin died, Mr Ballantyne then posited that Mr Dowling must have gone round to Vic Brannen’s house to make the call for help to clean up the scene.
This new theory, too, was disproved by telephone records.
In terms of why Mr Dowling or Mr Heaney might have killed Mr Kapluggin, Mr Ballantyne’s initial position was Mr Dowling had intervened in a fight between Mr Ballantyne and Mr Kapluggin and, in so doing, had saved Mr Ballantyne’s life. Mr Ballantyne also suggested, however, that Mr Kapluggin had with him a large quantity of cash, which he proposed to use to pay a builder to renovate his Waikino property and that robbery was therefore the motive. No large amount of money was located by police at Mr Ballantyne’s house after the murder, although Mr Kapluggin’s wallet, still containing a small quantity of cash, was. David Kapluggin’s evidence was that his brother had been intending to sell, not renovate, his house and, in any event, would never have carried large amounts of cash on his person. Moreover, Mr Ballantyne himself told Constable Dowling very shortly after Mr Kapluggin’s death that he (Mr Kapluggin) had a house in Waikino which he was selling (and that this was the reason that he was back in the country).
The other difficulty with Mr Ballantyne’s developing theory was that those he accused of complicity in the murder said they had been elsewhere, which was confirmed by others. Mr Dowling said he had not gone to Mr Ballantyne’s that evening and Andrew Brannen said Mr Dowling had been out with him until around 9 pm when he had returned him home, very unwell. Mr Heaney said he was at home with his mother all night, which his mother confirmed.
The most fundamental problem, however, was that Mr Ballantyne frankly admitted at trial that his theory of the case was really little more than speculation. It was based on his attempt to piece together an alternative narrative from the evidence as it evolved. Although he maintained that certain actual memories were triggered by that evidence, those memories were inconsistent with other evidence and, on our reading of the trial transcript, almost impossible to separate from Mr Ballantyne’s hypothesising.
It is against that background that we turn to consider Mr Ballantyne’s appeal.
Procedural history of the appeal and the development of the grounds of appeal
Mr Ballantyne was sentenced on 22 July 2016 but did not file this appeal until over a year later (in August 2017). No point was taken about the appeal being out of time by the Crown and we grant him an extension of time for appealing.
The August 2017 notice of appeal identified only one ground of appeal: “[f]resh evidence concerning hair found on the deceased’s body”. The notice indicated that Mr Ballantyne had a lawyer acting for him and that he intended to brief a forensic expert in relation to the fresh evidence.
In the months that followed, two lawyers who had (consecutively) been assigned to act for Mr Ballantyne withdrew. By mid-2018 Mr Ballantyne was unrepresented.
By the time of a teleconference with French J on 4 July 2018, Mr Ballantyne’s grounds had expanded to two. The Judge’s subsequent minute records:[4]
[1] Mr Ballantyne advised that his grounds of appeal relate to two matters: first, evidence of hairs found under the deceased’s fingernails and secondly evidence of a wound on his own hand.
[2] As regards the first matter, his chief complaint is that the hairs which are of a different colour to his own were never tested for DNA. At trial, an expert witness claimed the reason the hairs were not tested was because the particular test cannot be done in this country. According to Mr Ballantyne however, it could have been done because one of the hair samples had a root attached. Mr Ballantyne wants the testing to be done now. He also contends that although the existence of the hair samples was disclosed in the documents provided to him and trial counsel before the trial, the relevant pages were deliberately hidden out of sequence amongst a wad of written material. He says this can be proved by comparing the disclosure documents with the full toxicology report which he has seen. Mr Ballantyne also contends it was not disclosed the hair samples were under the fingernails. All that was said was that the hair was located at the crime scene. He contends he instructed his trial counsel both orally and in writing to find out if the hair was under the fingernails but this was never done.
[3] As regards the wound on his own hand, Mr Ballantyne says a swab was taken by the doctor treating him. Mr Ballantyne asked his trial counsel to get the swab tested for DNA to disprove the Crown allegation that it had been caused by the knife used to stab the deceased, and not a broken glass as Mr Ballantyne claimed. If the wound had been caused by the knife, then Mr Ballantyne says the deceased’s DNA would have been in the wound as well as his DNA. The instructions given to trial counsel were again given orally and in written but not actioned.
[4]Ballantyne v R CA438/2017, 9 July 2018.
The Judge then said:
[4] Mr Ballantyne is to file a two page statement summarising his grounds of appeal. He is to do so within the next 7 days.
…
[6] I asked Mr Ballantyne to refrain from continuing to send long detailed letters to the Court, stressing the importance of an orderly process so that the Court can get to the heart of his appeal and clearly understand it. Mr Ballantyne agreed …[[5]]
[7] Ms Grau raised the issue of my appointing counsel to assist the Court, now that Mr Ballantyne has not been able to obtain funding from Legal Aid and is representing himself. I said I would consider this. Mr Ballantyne was receptive to the suggestion, whether the counsel in question was appointed to assist him or the Court.
[5]We refer to this paragraph of French J’s minute simply as a basis for observing that Mr Ballantyne did not heed French J’s request. Indeed, he filed in excess of 800 pages of submissions and material in advance of the hearing of his appeal.
Accordingly, on 11 July 2018, Mr Ballantyne filed a (three page) summary of his position. It included the two issues recorded by French J, but included several other matters, as well. For present purposes it suffices to note that reference was made to:[6]
(a)the “non-disclosure” of the “full and complete toxicology DNA results” for both Mr Kapluggin and Mr Ballantyne which would show “any cross contamination of DNA between the appellant and the deceased”;[7]
(b)the failure to DNA test “… the 4 cm long dark brown to black hair with ‘a root attached’ located under the deceased fingernails”;
(c)the significance of the time difference between the making of the relatively fresh “vertical blood drip stains located on the ‘backing’ of the turned back corner section of the Persian rug that the deceased lay on” (these being Mr Ballantyne’s blood) and the congealed blood on the rug (which was Mr Kapluggin’s); and
(d)a report by the Forensic Group Ltd “on blood half moon detailed stain, located by the deceased” which could have been made from the heel of a boot, when both Mr Kapluggin and Mr Ballantyne had bare feet.
[6]The following represents our outline of those of the matters listed which were ultimately pursued by Mr Ballantyne at the hearing of his appeal.
[7]As we understand it, what Mr Ballantyne means by “cross-contamination” is simply that both his blood and Mr Kapluggin’s blood or DNA should (if he was the murderer) have been found on the murder weapon or in the wound on his hand.
As flagged by French J in her minute following the teleconference on 4 July 2018, this Court then appointed Mr Temm as counsel to assist. Mr Temm subsequently met with Mr Ballantyne. On 1 November 2018, Mr Temm filed a memorandum in which he stated:
Appeal Grounds
4. Mr Ballantyne instructs that his appeal is limited to the issue of “fresh evidence”. Specifically, he excludes as any appeal ground, the following:
a. Judicial and legal directions either in Chambers or to the jury in summing up the case;
b. Any criticism of Crown Counsel opening or closing addresses;
c. The admission of any Crown evidence or exhibit at trial;
d. The conduct of his own trial Counsel, Mr Sutcliffe of Hamilton.
5. The appellant has firmly instructed that he does not raise any issues under these grounds of appeal.
Fresh Evidence
6. The appellant instructs that he wishes to advance an appeal limited to the single ground of “Fresh Evidence”. He instructs that that is in two parts:
a. DNA evidence that might be probative arising from hairs located under the deceased’s fingernails;
b. Evidence that might be probative from “toxicology” reports that relate to the deceased; or to the appellant upon his arrest.
It is clear that Mr Temm explained to Mr Ballantyne the rules governing the admission of fresh forensic evidence on appeal. He also raised the question of funding.
In her minute of 18 February 2019, French J reiterated:[8]
[3] Mr Ballantyne confirmed that there is only one ground of appeal, namely fresh evidence. That has two components:
(a) DNA evidence that might be probative arising from hairs located under the deceased’s fingernails; and
(b) evidence that might be probative from toxicology reports that relate to the deceased Mr Kapluggin or Mr Ballantyne.
[4] The hairs under the fingernails were never tested for DNA. According to the evidence given at trial, the technique required to do that (mitochondrial DNA) was not available in New Zealand. The ESR[[9]] witness also opined that even if the technique had been available and DNA able to be extracted, he did not consider the results would have much probative force because hairs accumulate in residential environments.
[5] Mr Ballantyne says he has now obtained funding to have the hairs tested. This is being arranged by Mr Taylor. As regards the ground of appeal relating to the toxicology reports, Mr Ballantyne explained that he has been unwell and has not yet had an opportunity to go through all the material obtained by Mr Temm from the Crown to see whether there were any toxicology reports. Mr Temm advises that Mr Ballantyne now has everything the Crown has.
[8]Ballantyne v R CA438/2017, 18 February 2019.
[9]The Institute of Environmental Science and Research.
But two months later, on 30 April 2019, French J recorded:[10]
[1] Mr Ballantyne raised a concern about disclosure. There was some confusion as to what exactly Mr Ballantyne was seeking but as the discussion developed he confirmed that what he is seeking is a copy of the police disclosure. Ms Grau undertook to contact the officer in charge and arrange for the police to make a disclosure copy which is to be sent to Mr Ballantyne.
[2] I direct that the appeal be set down for a one day hearing in September 2019. That will allow ample time for Mr Ballantyne to be able to consider the police disclosure once it is received.
[10]Ballantyne v R CA438/2017, 30 April 2019.
On 28 June 2019, French J issued a further minute in which she recorded:[11]
[2] Mr Ballantyne … continues to have concerns about the adequacy of the disclosure that has been provided. In particular, he is concerned about what appear to be missing pages in the documentation from the ESR. He is also concerned that he has still not received a complete set of all the DNA tests and comparative analysis done in respect of his DNA as part of Operation Tiger.[[12]]
[3] Mr Temm who has studied all the disclosure documents explained that Mr Ballantyne’s concern centres on the original ESR report which was 214 pages. It was as Mr Temm put it a living document which evolved over time. By the time it came to trial, the report was some 246 pages. The 246 page trial report subsumed the original report but there appear to be eight missing pages from the original report not included in the trial report. Mr Temm has endeavoured to track them down. He has worked out that two of the “missing” pages were included in a stand-alone document in the form of a statement which has been provided, another appears to have been a title page from a pathology report. Others are not missing in the true sense of the word but in a different sequential pattern. That may have occurred because the copy of the ESR report provided at the time of the trial was redacted.
[4] Mr Temm has emailed the Crown with all the relevant detail concerning the above. He described the situation as “odd” but not critical to the appeal. He agreed it needs an explanation.
[5] As regards the DNA testing, Mr Temm says the concern is an apparent mismatch between the number of samples taken from Mr Ballantyne after he was arrested and the analysis. The evidence at trial however was that not all samples were tested for various reasons.
[6] It is unclear whether Mr Ballantyne has all of the missing eight pages from the ESR report.
…
[8] I directed the Crown to provide an affidavit from ESR dealing with the following matters (a) whether the 214 page report still exists (b) whether everything in the 214 page report was subsumed within the trial report and if not what was omitted (c) the explanation for the eight “missing pages” and (d) identifying the number of samples taken from Mr Ballantyne, detailing which were analysed, which were not and why not.
…
[11]Ballantyne v R CA438/2017, 28 June 2019.
[12]This was the code name for the police investigation into Mr Kapluggin’s death.
The minute concluded by noting:
[10] Mr Ballantyne confirmed that the grounds of his appeal remain as per his notice of appeal. He said the focus is the DNA evidence. He will not be filing any evidence himself but relying on the ESR material.
And so it was that Mr Ballantyne did not, ultimately, seek to call fresh evidence. Rather, he focused on what he called the “non-disclosure” of forensic evidence which, he submitted, meant that there had been a miscarriage of justice.
The alleged non-disclosures
As Mr Temm explained, Mr Ballantyne used the word “non-disclosure” in two different (but potentially overlapping) ways:
(a)The first and more orthodox usage involves the non-disclosure to the defence of relevant material that was available to the police or Crown, namely parts of the ESR file and also the DNA test results for:
(i)hairs found at the scene and, in particular, the 4 cm brown or black hair found underneath Mr Kapluggin’s fingernails;
(ii)the finger nail clippings taken from Mr Kapluggin; and
(iii)hairs found on the cleaver.
(b)The second usage involves evidence “not lawfully disclosed” to the jury by which is meant exculpatory evidence (or potential evidence) which Mr Ballantyne says was either wrongly not adduced at trial at all or insufficiently emphasised, namely:
(i)the results of DNA testing on Mr Ballantyne’s own hair and hairs found at the scene and, in particular, the 4 cm brown or black hair;
(ii)toxicology testing which would have shown Mr Ballantyne’s intoxication level on the night in question;
(iii)expert evidence about the difference between fresh and congealed blood found at the scene and its relevance to Mr Kapluggin’s time of death;
(iv)evidence about a boot print found in the blood;
(v)unidentified fingerprints found on the murder weapons;
(vi)evidence about the DNA/blood under Mr Kapluggin’s fingernails;
(vii)evidence that Mr Ballantyne’s blood/DNA was not found on the murder weapon and that Mr Kapluggin’s blood/DNA was not found in the wound to Mr Ballantyne’s hand and the related evidence that the cut on his hand was caused by a piece of broken glass rather than the knife; and
(viii)evidence that Mr Ballantyne had relatively little of Mr Kapluggin’s blood on his body in the immediate aftermath of Mr Kapluggin’s death.
We deal with these matters in the order we have listed them above.
“Orthodox” non-disclosure
The ESR files
In accordance with French J’s 28 June 2019 direction, the Crown filed two affidavits from Mr Rian Morgan-Smith (the ESR analyst assigned to the case and who gave evidence at trial), one from the Officer in Charge, Detective Simon Everson and (following a waiver of privilege) one from Mr Ballantyne’s trial counsel, Mr Thomas Sutcliffe. Their evidence in relation to the disclosure of the ESR files can be summarised as follows.
First, ESR rely on the police to disclose material to defence. The ESR generally sends police formal written statements from its analysts as soon as they are prepared. Updated statements are similarly disclosed to defendants on a “rolling”, or iterative, basis. Next, after all statements have been prepared, ESR then sends police its full “working file”, which contains handwritten workings, draft statements, e-mail correspondence with police, and so on. This full working file is then disclosed by the police to a defendant or defence counsel. Such disclosure occurs only once, unless defence counsel subsequently ask for it again.
In Mr Ballantyne’s case, the ESR sent police its full working file on two occasions before his trial.
First working file
The first working file was sent to police on 8 September 2015. Mr Ballantyne refers to this first working file as the “214-page” file, because its cover page indicates that that is how many pages it comprised. The police disclosure index confirms this file was disclosed to Mr Ballantyne’s counsel.
In this appeal Mr Ballantyne contended that his copy of this first working file was missing eight specific pages because the page numbers (added by police) simply skipped those pages. But as Mr Morgan-Smith’s second affidavit clarifies, the bundle sent to defence also included many duplicated pages — with the result that three of the eight “missing” pages identified were present elsewhere in the bundle.
As to the remaining five pages, Ms Ewing acknowledged that they were missing but she was able to demonstrate that they were disclosed to defence counsel elsewhere, in advance of the trial. As we understand it, this is now accepted by Mr Ballantyne and we do not consider them further.
Second working file
By contrast, it does appear the “second working file” was never disclosed to Mr Ballantyne before trial. So, the question is whether anything on the file that was not disclosed might have been material to (assisted) Mr Ballantyne’s defence.
The starting point is that much of the second working file is the same as the first working file. But Mr Temm identified that the second file did include emails about the decision not to analyse hair, which might have been relevant to Mr Ballantyne’s defence counsel at trial. Mr Temm submitted that this was material to the defence because the hair is evidence that potentially goes to identity, which was the only issue at trial. It is certainly an issue that is important to Mr Ballantyne in this appeal.
Mr Temm rightly acknowledged, however, that he could not take the point any further than that. That is because the fact that the hairs were found and were not tested was known to the defence and (indeed) was explored by Mr Sutcliffe in his cross‑examination of Mr Morgan-Smith. Mr Morgan-Smith explained why the hairs were not tested and his answers were consistent with the (undisclosed) emails. In our view, therefore, there can be no prejudice arising to the defence from this non‑disclosure.
Observations on police disclosure of ESR material
Ms Ewing for the Crown accepted that the way in which police disclosed the ESR material in this case was “certainly untidy” and led to some confusion. More specifically, she acknowledged that it was less than satisfactory that the Crown could not now prove that it had disclosed the five “missing” pages and the “second working file”.
In light of the issues that have arisen in this case, we invited Mr Temm to comment more generally on the disclosure of ESR material in criminal trials, from his experience at the defence bar. More particularly we asked him whether it might be useful if some kind of disclosure protocol were to be developed.
Mr Temm said that his experience (and without purporting to speak for the defence bar more generally) was that ESR was overworked, under-resourced and under-funded. He said that this results in both piecemeal disclosure and, sometimes, long delays, neither of which is satisfactory from a defence perspective. He submitted the iterative process of disclosure can make it difficult for counsel to craft an intelligent defence because the goal posts are always moving.
All that being said, however, Mr Temm noted that ESR material is almost by definition complex and requires a degree of knowledge and experience to understand it. In a serious or high-profile trial such as Mr Ballantyne’s, experienced counsel were likely to be acting and would have developed a degree of familiarity with such material. Similarly, he expressed the view that defence counsel were accustomed to the ESR disclosure process and did not find it especially difficult to navigate. Ultimately, his assessment was that the problems experienced by Mr Ballantyne getting to grips with pre-trial disclosure on appeal were more indicative of his status as a lay litigant. Given that self-representation tends to be rare at trial level,[13] Mr Temm thought it would be difficult to justify the development of a protocol simply for the purposes of assisting self-represented appellants.
[13]Defendants charged with murder qualify automatically for legal aid — and within certain limits have a choice of counsel.
We think Mr Temm is probably right about these issues. So other than recording the substance our discussion with him, we do not consider it is necessary to take the matter further.
Relevant forensic evidence not disclosed or put before the Court
This second aspect of the more orthodox “non-disclosure” point relates to samples that were collected by the ESR and (Mr Ballantyne says) tested, but not disclosed to him by police or the Crown and (necessarily) were also not put before the jury.
The basis for this contention was an ESR document listing the samples taken, with columns indicating whether they had been tested, and any results associating them with either Mr Ballantyne or Mr Kapluggin. The items listed as:
(a)fingernail clippings and hair (with the reference numbers ASC15546/62 and 63);
(b)medical examination kit from Mr Ballantyne (with the reference number ASC15546/71);
(c)toxicology kit from Mr Ballantyne (with the reference number ASC15546/72); and
(d)hairs from meat cleaver (with the reference number ASC15546/19)
are all recorded as not having been tested, but as “active”. Mr Ballantyne said that this is a clear indication that these items were intended to be tested. On the reasonable assumption that such intention would later have been executed, he said they must have been tested but the results had not been disclosed.
As Ms Ewing explained, however, the document also contains a further column headed “additional DNA to do?”. An “X” in that column indicates that a decision had been made to test the “active” sample to which it relates. None of the items listed above had an “X” in that column, indicating that a decision had been made not to test them. That was supported by the evidence at trial in relation to the hairs contained in samples ASC15546/62 and 63, which Mr Morgan-Smith confirmed had not been tested.
We accept Ms Ewing’s submissions on this point. We therefore proceed on the basis that the items referred to above were not tested and (so) there is no non-disclosure issue. We nonetheless return to what Mr Ballantyne says is the potential significance of these items below.
“Non-disclosure” of exculpatory evidence
As we have said, this aspect of Mr Ballantyne’s appeal focuses on exculpatory evidence which he says should have been obtained, but was not. Put another way, a failure sufficiently to emphasise or explore certain aspects of the evidence at trial. It is therefore necessary to begin by reiterating that Mr Ballantyne accepted that trial counsel error formed no part of his appeal.[14] And we place on record our view that this stance was wholly appropriate; no conceivable criticism can be made of Mr Sutcliffe’s conduct of Mr Ballantyne’s defence.
Hair
[14]This was also confirmed in a memorandum filed by Mr Temm.
This issue was, undoubtedly, Mr Ballantyne’s main focus on appeal from the outset. It has two intersecting strands. The first relates to hair samples that Mr Ballantyne says were taken from his head, but not tested. The second relates to hair that Mr Ballantyne says was taken from under Mr Kapluggin’s fingernails — including, in particular, a four cm dark hair with a telogen root[15] — which (as we have confirmed earlier in this judgment) was also not tested.
[15]Mr Ballantyne relied in particular on CA Linch, SL Smith and JA Prahlow “Evaluation of the Human Hair Root for DNA Typing Subsequent to Microscopic Comparison” J Forensic Sci (1998) 43 305, which states: “Telogen human hairs are one of the most common useful evidence findings at crime scenes and/or on homicide victims. Occasionally, the microscopic characterization of the found telogen hair is the only physical evidence association to a victim or suspect.”
Mr Ballantyne says that had these tests been done, they could (or possibly would) have established that:
(a)His hair does not match the hairs found under Mr Kapluggin’s fingernails, thus excluding him as the killer.
(b)The hair with the telogen root belonged to Mr Heaney (who has dark hair), thus implicating him as the killer.
There are, however, many difficulties with these propositions. They include most notably that:
(a)It was quite evident from looking at Mr Ballantyne that his hair is not dark.
(b)It seems that the hairs associated with Mr Kapluggin were not in fact found under his fingernails. Rather, the Crown position is that ESR put some hairs found on or near his body in the same pottle as Mr Kapluggin’s fingernail clippings.[16]
(c)Mitochondrial DNA analysis (which is necessary to conduct testing of a telogen root) is not available in New Zealand.
(d)Such testing is unlikely to have yielded any useful results due to the sample being saturated with blood.
(e)Mr Kapluggin had just suffered a significant wound to his head which would have caused his hair to shed in the general area where his body was found.[17]
(f)The ESR view was, accordingly, that any hairs found on or near his body were most likely to be his.
(g)The accumulation of hairs that commonly occurs in residential environments meant that it was unlikely that any meaningful conclusion could be drawn, even if one of the hairs found proved to be from somebody other than Mr Kapluggin.[18]
[16]We acknowledge that Mr Morgan-Smith’s evidence about this at trial was a little confusing. Ultimately, however, nothing turns on this point.
[17]It is clear from the photographs of the scene that Mr Kapluggin himself had dark hair.
[18]Indeed, Mr Morgan-Smith’s concern at one time seems to have been that it was quite likely that one of the hairs might prove to belong to Mr Ballantyne, because it was his house and his hair was quite likely to be on the rug.
All of these points (other than the first, which was obvious) were canvassed by the ESR witness, Mr Morgan-Smith, during his cross-examination by Mr Sutcliffe at trial.
The more fundamental difficulty, however, is that the proposition that the black hair with the telogen root might have proved to be Mr Heaney’s is so improbable that it does not warrant serious consideration. There is, quite simply, no evidence whatsoever that Mr Heaney was present in Mr Ballantyne’s home that evening. Mr Ballantyne himself accepted that he had not seen him there and, indeed, there was evidence that he was at home with his mother all night. Even were we to accept that Mr Ballantyne does not remember and remains mystified by the events leading to Mr Kapluggin’s death, his “alternative suspect” theories are just not tenable. As Brewer J said at sentencing:[19]
… you went to trial blaming others. There was simply no way that blame could attach to anybody other than yourself.
[19]R v Ballantyne [2016] NZHC 1681 at [8].
Although we do not intend to reiterate that point throughout the remainder of this judgment, it nonetheless pervades this case and remains an overarching difficulty with all Mr Ballantyne’s appeal points.
Toxicology
Mr Ballantyne’s evidence at trial was that he was not intoxicated on the night of Mr Kapluggin’s death. As he explained during his evidence, he was conscious right from the outset that it would be unhelpful if it could be suggested that he had killed Mr Kapluggin as a result of becoming disinhibited and/or aggressive as a result of the consumption of alcohol.[20] His evidence about that concern was borne out by the evidence of one of the police officers who was first on the scene, who confirmed that he attempted to insist that a blood test should be done immediately so that his blood alcohol level could be tested.
[20]Although that possibility was not referred to by the Crown in closing, Brewer J did, in fact, give an orthodox intoxication direction. A blackout caused by overconsumption of alcohol would also have been inconsistent with Mr Ballantyne’s evidence at trial that he had been knocked unconscious by Mr Kapluggin.
The initial police response was that the ambulance officers present were not qualified to perform such a test but that, if police required one in due course, then it would be done. Our understanding is that there was no such test, although a sample of Mr Ballantyne’s blood was taken by the doctor who examined him at around 10 am on the morning of 3 February 2015.[21] In any event, there is no dispute that there was no objective support at trial for Mr Ballantyne’s position that he was not drunk that evening.
[21]A table prepared by the ESR scientist, Mr Morgan-Smith, for the purposes of this appeal lists the samples taken and identifies those which were not analysed by ESR, and explains why. The list contains a reference to a toxicology kit taken from Mr Ballantyne comprising one urine sample and one blood sample which were not tested because a test was “[n]ot requested”.
We acknowledge that this did give rise to some difficulty for Mr Ballantyne in terms of any attempt to establish that he was not affected by alcohol. But the fundamental reason for this difficulty was the statements he had himself made at the time about the quantity of alcohol consumed that night. More particularly, the evidence of Constable Dowling (one of the first police officers on the scene) was that when she asked Mr Ballantyne how much he and Mr Kapluggin had drunk, Mr Ballantyne initially said “a full bottle of 12 year old Glenfiddich whiskey between the two of them”.[22] A bit later on he told her that “at around 8.30 pm after two bottles of sparkling wine and a whole bottle of whiskey we had opened another one which we only had a couple out of”.
[22]Constable Dowling’s evidence was read by consent at trial.
And when Mr Ballantyne was formally interviewed some hours later (at around midday on 3 February 2015) Mr Ballantyne said:[23]
Yeah if it’s, if it was anything later it would’ve been half past 9 because by the time we finished one bottle that was and Ivan drinks as much as I do so umm it was a shared bottle and then we drunk a another bottle plus the whiskey that we had so that was virtually a full bottle each plus half a third of a bottle of 12 year old whiskey. And Ivan wasn’t umm (inaudible)[[24]] when he was making the nips. So and then when I had another half a nip, that was enough that was enough for me.
[23]At 10 am that same morning he had told the doctor who examined him (who noted that Mr Ballantyne smelled of alcohol) that he had been drinking “a lot” the previous evening.
[24]Later he said Mr Kapluggin was not “shy” in pouring the whiskies and that they were “stout” — not singles, “more like triples”.
He also told the interviewer that he was drinking on an empty stomach (prior to having dinner), because he had not eaten all day. And when asked to rate his intoxication level out of 10 (“10 being heavily intoxicated, one being … sober”) he said:
[Mr Ballantyne] Oh, I’d say probably six or seven.
…
[Mr Ballantyne] … I would say easy six to seven.
…
[Interviewer] And what, what would Ivan’s level of intoxication have been with you?
[Mr Ballantyne] He matched me for drink for drink um except when I tipped over my glass cause it was right there and I’m getting the mussels and I tried to open one and it was a bit tough and I knocked my glass over so apart from that there was drink for drink.
Mr Ballantyne’s statements were also borne out by evidence from the scene. At trial, there was this exchange with Detective Brownlie:
Q. Now addressing the issue of consumption of alcohol detective two wine bottles there, a sparkling variety, is that right?
A. Yes.
Q. And had they been drunk?
A. Yes, I believe so.
Q. There’s a bottle of whiskey and the green bottle in the centre which was empty?[[25]]
A. Yes.
Q. And the bottle of Glenfiddich we can see isn’t it, is roughly half gone?
A. Yes.
Q. Two glasses there?
A. Yes.
[25]It seems that the empty bottle had contained Glenlivet whisky.
Mr Ballantyne’s trial counsel, Mr Sutcliffe, did brief a toxicologist (Mr Birch) who attempted (inter alia)[26] to ascertain retrospectively how much alcohol would have been in Mr Ballantyne’s blood, based on the evidence about how much had been drunk, together with the level of alcohol found in Mr Kapluggin’s blood. His assessment was that Mr Ballantyne’s blood alcohol level would have been approximately 279 milligrams per 100 millilitres of blood. Mr Birch said that that alcohol blackouts can occur at levels as low as 140 milligrams per 100 millilitres. Mr Birch was not ultimately called as a witness at trial.
[26]Mr Birch also assessed other the possibility of other causes of automatous behaviour, including shellfish poisoning and Mr Ballantyne’s diabetes.
The signal point is that Mr Ballantyne’s intoxication level does not seem to have played a significant part in the Crown case at trial. And the only time it was mentioned in closing addresses was when Mr Sutcliffe noted that the neighbours had observed no signs of any drunken argument next door and (later) that Mr Ballantyne did not have “a reputation for being angry, for having a short temper, a person who is not easily offended or being aggressive either when intoxicated or otherwise, indeed quite the opposite”. Even if it could be said that Mr Ballantyne’s blood “should” have been tested (despite it potentially being something of a gambit), we are unable to see how it might have made any significant difference to the case against him, or to his defence.
We are satisfied there is nothing in this point.
Congealed blood
Although Mr Ballantyne’s point about the distinction between fresh and congealed blood was initially a little unclear, we understood from his oral submissions that it is this:[27]
[27]Our understanding differs from that expressed by the Crown, which was that it had something to do with the blood found on the neighbours’ doorbell.
(a)Mr Ballantyne rang 111 at 1.26 am.
(b)Just before making that call, he says he had “woken up” and found Mr Kapluggin’s body.
(c)Just after he awoke he cut his right hand on a piece of the glass he had broken during dinner which had been missed when he cleaned it up.
(d)He pulled back the corner of the rug on which Mr Kapluggin was lying and the cut on his hand dripped (fresh) blood onto the exposed area of vinyl floor.
(e)The (relative) freshness of these blood drips was confirmed by ESR.
(f)ESR also confirmed that the print of Mr Ballantyne’s right big toe was made in the (relatively) fresh blood.[28]
(g)At the time the rug was turned back, the blood from Mr Kapluggin was already congealed which, according to Mr Ballantyne’s researches, meant that it would have had to have been there for over an hour.
(h)After going next door and ringing the neighbours’ doorbell, Mr Ballantyne returned to Mr Kapluggin’s body and bent down and picked up his right arm up to check his pulse before fainting.
(i)The mark made (or revealed) in the blood by Mr Kapluggin’s arm (noted in the forensic evidence) was also consistent with the blood having congealed at the time it was moved.
[28]Mr Morgan-Smith confirmed under cross-examination that the blood needed to be closer to fresh than congealed to make such a detailed print.
Mr Ballantyne therefore submitted that Mr Kapluggin must have been dead for some time before Mr Ballantyne found him. He submitted this would have been established at trial if evidence had been called (which confirmed his own research) about the time it takes blood to congeal.
Again, however, there are a number of flaws in this submission.
First, the Crown case was not specific as to the time of Mr Kapluggin’s death. The charge simply alleged that Mr Kapluggin had been murdered at some time between the “2nd day of February 2015 and the 3rd day of February 2015”.[29]
[29]Mr Birch estimated that the time of death was around midnight.
Secondly, it seems consideration was given by police at an early stage to having work done on blood congealing times. On 18 December 2015, Mr Morgan-Smith emailed the Officer in Charge, saying:[30]
Blood congealing times we can discuss in very general terms. There will be some unknowns to be factored in with Mr K’s general health, physiological factors, blood alcohol, environmental conditions, substrate, thickness of blood pool, etc etc, which might make this less useful than you might think.
[30]Email from Mr Morgan-Smith to Detective Simon Everson (18 December 2015) (emphasis added). Mr Morgan-Smith did, however, offer to follow up the matter if requested.
In a further email to police on 19 February 2016, Mr Morgan-Smith again noted the “variables” involved, saying he could “comment generally on time but would need to hit the literature to pull some figures and their limitations due to the variables.” It appears, however, that he was not asked to follow this up.
The important point, however, is that all of this was known to the defence before trial. That is clear from one of the reports prepared for the defence by the forensic expert, Ms Paige McElhinney, in which she said:
I understand that when Police first attended the scene at 2.44 am on 03 February 2015 blood staining in the scene was described as appearing dry and congealed. I do not have further details regarding the stains in the scene to which this refers. It would not be possible to comment on when the blood may have been deposited in order for it to be dry and congealed at 2.44 am because there are a several variables that affect drying and congealing of blood including environmental conditions (such as temperature, humidity, air flow), individual conditions (such as any medication Mr Kapluggin may have taken), as well as the volume of blood in the stain. I note that in an email communication on page 47 of Mr Morgan-Smith’s file he was to do a literature search of relevant articles for this purpose. There is no record of a literature search being conducted in the copy of Mr Morgan-Smith’s notes that I have received so at present it appears that no search was conducted. I can also conduct a literature search for this purpose. Please contact me if you would like me to do this.
There is nothing to suggest that Ms McElhinney was asked to follow up on the issue and, indeed, she repeated the paragraph just quoted (with the last two sentences omitted) in the brief of evidence she prepared. In the end, however, she was not called as a witness at trial.
Thirdly, Mr Ballantyne’s evidence at trial was that he could not remember how (or when) he cut his hand, as can be seen from the following exchange (during his examination in chief) with Mr Sutcliffe:
Q. So just again just come back to this cut on your hand, what do you say your memory is of how that might’ve occurred?
A. No I have no idea how it occurred, all I know is that, um, when I got up, as I was getting up I felt a sharp pain in that hand.
Q. And you’re referring to your right hand?
A. Yes. My, um, my cut.
Q. So do you have any other memory of that?
A. No, basically that’s, that’s the, um, extent of memories.
Lastly, the nature of the wound to Mr Ballantyne’s hand was such that, without medical intervention, it may well have continued to drip blood for some time after the infliction of the cut.[31] So even though Mr Ballantyne’s blood (that was found near the fold in the rug) may have been “fresher” than Mr Kapluggin’s blood, no exculpatory conclusion could safely be drawn from that. The most that could really be said was that it is likely that Mr Ballantyne’s blood dripped on that spot some time after Mr Kapluggin was killed. Given what we have said about the uncertainty around the timing of Mr Kapluggin’s death and the fact that police did not arrive at the scene until almost 2.50 am, there was (at the very least) a two-hour window in which that could have happened.
“Boot print”
[31]The doctor who sutured the wound said it would have bled “a lot” and confirmed that it required four stitches.
Mr Ballantyne was also focused on what he maintains is a boot heel shaped blood print located in the fold area of the carpet exposed by the overturned rug. He says this print is exculpatory because both he and Mr Kapluggin were barefoot that night. He also makes a link between the print and some “size 10” work boots he says were often worn by Mr Heaney.
This was a contention which was put by Mr Sutcliffe to Mr Morgan-Smith in cross-examination. There was the following exchange:
Q. Now perhaps if I can just ask you then draw your attention to the photograph on page 5 which is another part of that pattern of staining in that general area, would you be able to discount as a possible explanation for that stain that it was caused by the heel of a boot or a shoe? Is there anything about the characteristics of that stain which would exclude as a possibility?
A. I wouldn’t comment again beyond that it’s a transfer stain from a bloodied object touching the floor.
Q. And that could — is your evidence that it could be anything?
A. There are insufficient features within that for me to conclude anything other than an object has contacted the floor.
Importantly, the inconclusive nature of the cause of the stain in question was also confirmed by Ms McElhinney who, as we have said, was not called by the defence at trial but who reviewed all the ESR evidence. In her first report prepared for Mr Sutcliffe she said:
The second pattern is most clearly shown in 186–IMG 4034. I understand Mr Ballantyne has proposed that this pattern could be a blood stain transfer pattern from a heel element of a safety boot. The blood stain appears to be curved in shape and appears to be caused by a blood stained object contacting the surface. The blood stain could be caused by a blood stained boot or any other object stained with wet blood contacting the surface.
In addition, without further information, it is possible that an object was present along the right edge of the stain which was subsequently moved which means the blood stain may not be a true representation of the shape of the object that made the stain.
Later, in her second report, Ms McElhinney returned to the subject in more detail. She said:
I have been asked to address the lower blood stain in the centre of the photograph (circled by me) and determine whether or not it is consistent with a “stud” pattern on a size 10 Safety Boot on “page 1061”.
I have no information regarding the boot print on page 1061 including how it relates to the investigation or how the print was made.
In a copy of page 1061 provided to me, two “Y” shaped elements have been circled and it is this element(s) that Mr Ballantyne alleges made this pattern.
I disagree with Mr Ballantyne and refer back to my conclusion made in my original report that the pattern is consistent with a contact or transfer blood stain with a drop of water applied from above, leaving a dilute stain with an irregular perimeter around it as shown in the photograph. This is the same as the stain to the left of it. The straight line along the left edge of the circled blood stain would be caused by the line in the linoleum floor covering.
Directly above the stain in question and transacted by my circle are very fine lines which could be ridge detail from a bare hand or foot. Ridge detail is also present to the right of the image above the label.
One method to confirm this would be to overlay the boot print on the scene impression. However, in this case there is no scale in the photograph in order to determine the true size of the impression and also no indication of whether or not the photograph has been taken parallel to the surface (required in order for the photograph to be a true representation of the pattern). A different photograph would need to be used, i.e. one that had been taken with a two‑directional scale bar and known to have been taken parallel to the floor surface.
Whilst it is not possible to exclude that at least some of the transfer stain (which was subsequently dripped on) was made by a bare hand or foot, there is no confirmation of a footwear impression in this image.
…
In my previous report I stated “The blood stain appears to be curved in shape and appears to be caused by a blood stained object contacting the surface. The blood stain could be caused by a blood stained boot or any other object stained with wet blood contacting the surface”.
Mr Ballantyne has asked me to readdress this stain and comment upon whether or not the boot as [shown] on page 1061 could have made this impression. Of the heel elements that have been reproduced in the boot print on page 1061 there are none of this shape. It is possible not all pattern elements have been reproduced. It is therefore not possible to comment in relation to this. Mr Ballantyne has drawn a diagram of a proposed heel element. I have no information regarding the source of this diagram, for example whether it is a proposed design or whether he has traced it from an actual boot.
Whilst it may not be possible to exclude a boot there are elements in this image that are not usually seen with a blood stained footwear impression, for example these can have defined edges where as this stain has additional blood staining around the edges. It may not be possible to exclude a footwear impression over blood staining already present.
To confirm this, a boot print could be overlaid upon the scene impression and this would determine whether or not there is any edge correspondence. However, again, there is no scale in this photograph and it is not possible to determine whether the photograph was taken parallel to the floor. A different photograph would therefore need to be used.
Bloodied ridge detail is present on the left of the photo above the label.
…
In summary, the stain appears to be made by contact with a blood stained object but it is not possible to identify that object.
It is therefore unsurprising that very little could be made by Mr Sutcliffe of the “boot print” theory at trial. Nothing alters that position on appeal.
“Unidentified fingerprints”
The evidence at trial was that no fingerprints were found on either the knife or the cleaver. That was not, of course, unhelpful to Mr Ballantyne’s defence and Mr Sutcliffe made that point to the jury.
But Mr Ballantyne now says this was wrong, and that there were two “unidentified fingerprints” on the murder weapons. He relied in support on a passage contained in Whata J’s bail judgment dated 20 August 2015,[32] and also on a report by the fingerprint officer, Mr Smith, dated 24 March 2015 (which Mr Ballantyne also says was not disclosed to him before trial).
[32]Ballantyne v R [2015] NZHC 1981.
Neither of those documents, however, do in fact support what Mr Ballantyne says. What Mr Smith says is:
Various exhibits were removed from the venue by the O/C scene and delivered to the fingerprint section where they were chemically treated in order to develop fingerprints. These consisted of 2 Lindauer bottles, a meat cleaver, a kitchen knife, a Glenfiddich bottle, a [Glenlivet] bottle, a jug, 2 drinking glasses a scrubbing brush and a dishwashing liquid bottle. Seventeen fingerprints were photographed on some of the exhibits. Eight have been identified for Anthony Ballantyne. [S]even do not contain enough detail for identification purposes and two remain unidentified.
Consistent with that, Whata J said (when assessing the strength of the Crown case against Mr Ballantyne, in the context of an application for bail):
[13] Mr Sutcliffe then identifies a number of matters that he says are relevant to the assessment including:
(a) Two unidentified prints on items of interest removed from the scene including liquor bottles, drinking glasses, dishwashing liquid and scrubbing brush, jug, meat cleaver and kitchen knife.
The short point is that there is nothing in this material to suggest that the unidentified prints were on the knife. Moreover, the fact that Whata J refers to Mr Sutcliffe making a submission on this point also puts paid to the non-disclosure argument (by which we mean Mr Ballantyne’s lawyer had, by August 2015, plainly seen Mr Smith’s report).
Again, we are satisfied there is nothing in this point.
Fingernails
As noted earlier, Mr Kapluggin’s fingernail clippings were not forensically tested. They were noted as likely having blood on them. Mr Ballantyne says that tests would have shown that his DNA was not present, thereby exonerating him.
There is a logical fallacy in that proposition. Mr Ballantyne’s DNA would only have been present if Mr Kapluggin had managed to make some contact with Mr Ballantyne in whatever struggle preceded his death. Given that the killer was wielding a knife (and Mr Kapluggin had defensive wounds to his hands) this was unlikely. Such evidence would have done nothing to advance the defence case.
Murder weapon
This ground is also concerned with alleged failures to “disclose” exculpatory forensic evidence at trial, namely, the absence of his fingerprints or DNA on the murder weapon and the absence of Mr Kapluggin’s DNA in the wound on Mr Ballantyne’s hand.[33] The points are interrelated because Mr Ballantyne says they both support his contention that he did not touch the murder weapon.
[33]This second point is arguably covered by Mr Ballantyne’s “cross-contamination” ground of appeal (see [35(a)] above) and was expressly referred to by him in a letter to this Court dated 13 March 2019: “The DNA Profile Comparison Test Clearly STATES: The DNA Profile On the Right Hand Swab … ASC15546/67 (COULD NOT HAVE ORIGINATED FROM Mr. BALLANTYNE)”. While this issue was not addressed by Mr Ballantyne in his submissions to us, we include it here for completeness.
The first point was, in fact, clearly made to the jury made by Mr Sutcliffe in closing. After referring to the evidence of Mr Morgan-Smith, he said:
Now he had given evidence for over two days over a two day period pointing to blood stains, whose DNA those blood stains contained significantly and this is important the context of this case, significantly, none of his evidence connected Mr Ballantyne to any of the weapons that had been used. Sure they were in his home but there was no physical evidence. There was no DNA. There was no fingerprints. There was nothing connecting Mr Ballantyne to those weapons that [were] used, no fingerprints, no DNA.
It is difficult to know what more could be said.
As we understand it, the second point is intended to rebut the evidence of the pathologist, Dr Garavan, who said that the wound to Mr Ballantyne’s hand could have been caused by the knife that killed Mr Kapluggin after it had become slippery with blood. Mr Ballantyne says that if that had happened Mr Kapluggin’s blood (already on the knife) would have become cross-contaminated with his own, which would have been shown if swabs taken from his wound had been DNA tested.[34]
[34]Mr Ballantyne’s hands were swabbed during a medical examination around 10 am the day after the murder.
We begin by noting that Dr Garavan’s thesis was consistent with not only the wound itself but also:
(a)the fact that the knife did not have a hilt or knife guard;
(b)the fact that the knife was found underneath Mr Kapluggin’s body (suggesting that whoever had wielded it had lost control of it);
(c)the subsequent use of the cleaver to deliver a blow that would (had Mr Kapluggin not already been dead) have been fatal; and
(d)Dr Garavan’s experience in such matters.
As we have said, Mr Ballantyne’s position now is that he had cut his hand on some broken glass when he woke up next to Mr Kapluggin’s body. And while we have noted the difficulties with that position above (the principal of which was that Mr Ballantyne’s own evidence was that he was only speculating about how he came to cut his hand), Dr Garavan confirmed under cross-examination that it was possible that the injury could have been caused by broken glass.
In terms of the specific cross-contamination point, Mr Ballantyne’s submission contains an illogical leap. As Ms Ewing submitted, even if the tests had been done and the results were as Mr Ballantyne posits, they would not exculpate him. The proposition that blood and therefore DNA would inevitably be found in these circumstances is unsupported by expert evidence, and inconsistent with common sense. The absence of Mr Kapluggin’s DNA in Mr Ballantyne’s wound would not render his conviction unsafe.[35]
[35]Mr Morgan-Smith commented on the converse proposition, saying that there would not necessarily be Mr Ballantyne’s blood on the knife even if he had cut himself with it, because “[t]here is a short timeframe between injury and blood profusely coming from a wound.”
The short point is that all the relevant evidence was before the jury. It was entirely open to them to accept that Mr Ballantyne had stabbed Mr Kapluggin notwithstanding the absence of his blood or DNA on the knife. For the same reason the absence of Mr Kapluggin’s DNA in the wound to Mr Ballantyne’s hand (if established) could not have exculpated him.
We are satisfied there is nothing in this ground of appeal.
Blood transfer
Mr Ballantyne’s submission on this topic was that Mr Kapluggin suffered a large number of knife wounds causing significant blood spatter, but Mr Ballantyne was found to have had relatively little of Mr Kapluggin’s blood on his body, despite the evidence (relating to the absence of any surge in energy usage) suggesting that he had not showered before police arrived.
The doctor who examined Mr Ballantyne the following morning explained that “there was a lot of blood around but no wounds to account for the blood, there was blood on his face and there was blood on his foot and a bit on the part of his ankle”. Mr Ballantyne’s sarong, stained with blood and bearing Mr Kapluggin’s DNA, had been found on the floor next to his body. When Mr Morgan-Smith was asked what he had observed in terms of bloodstaining on the sarong, he replied:
There were a number of discreet stains of blood over the entire surface of the sarong, the majority of these bloodstains appeared to be transfer stains, …
In any event, the signal point is that the evidence on this topic was before the jury. Given all the other evidence at trial it was entirely open to them to give it no, or little, weight. On no analysis could it be regarded as “proof of innocence” as Mr Ballantyne suggests.
Conclusion and result
The application for an extension of time to appeal is granted.
We have given careful consideration to all the matters raised by Mr Ballantyne. We are, however, unpersuaded that any of the matters raised suggest that a miscarriage may have occurred or that the jury’s verdict was unreasonable. The appeal is dismissed, accordingly.
We commend Mr Ballantyne on the courteous and clear way he presented his oral submissions to us.
Solicitors:
Crown Law Office, Wellington for Respondent