Defence declares Ninjaman 'should never have been tried'

Lawyers for convicted murderer Desmond ‘Ninjaman’ Ballentine yesterday argued before the Court of Appeal that his case “should never have been tried”, claiming that years of delay deprived him of key defence witnesses and rendered the proceedings unfair.

Attorney Robert Fletcher, who represents Ninjaman, said the more-than-eight-year delay before trial created “presumptive prejudice” because witnesses who could have assisted the defence died before they could testify.

Fletcher argued that the loss of those witnesses left Ninjaman unable to properly present his case and that the prejudice caused by the delay could not have been cured by directions given to the jury.

“Presumptive prejudice does not require proof. It arises by the act,” he told the court, urging the appellate judges to consider whether the trial should have proceeded given the circumstances.

The defence also argued that the trial judge erred in failing to uphold an application for a stay of proceedings on the basis of abuse of process, which resulted in prejudice to Ninjaman and deprived him of a fair trial in breach of the constitutional rights guaranteed under the Charter of Fundamental Rights and Freedoms, 2011.

Fellow attorney Russell Stewart challenged the safety of Ninjaman’s conviction, arguing that the trial judge failed to properly address the reliability of the identification evidence.

Stewart submitted that although the Crown called several witnesses, the evidence of only two — a male and a female witness — was critical to the case against Desmond Ballentine. He argued that the judge’s summation was too general and did not provide sufficient guidance on how the jury should assess the identification evidence.

He focused on the male witness, who testified that he had known Ninjaman for about 17 years and saw him in the community several times each week. However, Stewart pointed out that the witness admitted that, despite those years of familiarity, he had never spoken to Ninjaman.

He argued that while the witness had the “quantity” of contact because of the number of years he had seen Ninjaman, he lacked the quality of interaction required for the jury to safely treat the evidence as recognition.

Stewart also highlighted differences between the accounts of the male and female witnesses. He said the male witness testified that he saw three men approaching the deceased’s home armed with blunt objects and attempting to get through the gate. According to that account, the deceased threw stones at the men before Ninjaman arrived and fired two shots in the witness’s direction.

The female witness, however, gave a different sequence of events, Stewart said. He told the court that she testified that she was inside the house when she heard what sounded like a gunshot and later saw Ninjaman and another accused jumping over a six-foot gate with guns.

Stewart argued that those inconsistencies required a more detailed direction from the trial judge. He also challenged Ninjaman’s sentence, saying the sentencing principles were not properly applied.

Representing Janiel Ballentine, Desmond Ballentine’s son, King's Counsel Peter Champagnie challenged the voice and visual identification evidence against his client, describing it as “woefully inadequate”.

Champagnie argued that the main witness had only two or three seconds to observe Janiel Ballentine while he was allegedly jumping over a gate with a firearm. He said her attention was divided between Janiel and his father, making the identification unreliable.

He also pointed to differences between the witness’s trial testimony and earlier statements, including her claim that she saw Ninjaman through a side window, which he said had not previously been disclosed.

Attorney Samoi Campbell, who also represents Janiel Ballentine, argued that the trial judge misdirected the jury on joint enterprise by allowing foresight to operate as an alternative to intention, contrary to R v Jogee.

She submitted that no witness identified who fired the fatal shot and argued that the evidence did not establish that her client shared the intention required for murder. Campbell also challenged Janiel Ballentine’s sentence, saying the judge failed to properly consider mitigating factors, including his lack of previous convictions, favourable social enquiry report, time spent in custody and trial delay.

Attorney Zara Lewis, representing Dennis Clayton, urged the court to quash his conviction, arguing that the prosecution failed to prove that Clayton shared the intention required for murder.

“The evidence was so inherently weak that even a properly directed jury could not find that Mr Clayton intended to encourage the principal to shoot the deceased,” Lewis submitted.

She argued that while Clayton was linked to earlier confrontations involving stones and other weapons, there was no evidence that he knew a firearm would be used or participated in any plan to kill Ricardo Johnson.

Lewis also challenged the trial judge’s directions on common design, arguing that references to intention and foresight confused the jury. She further raised an alleged non-disclosure issue, claiming the defence was not initially told that a key witness had been placed in a witness protection programme.

Desmond Ballentine, Janiel Ballentine and Clayton were sentenced to life imprisonment in 2017 after being convicted of the 2009 murder of Kingston resident Ricardo Johnson and shooting with intent.

The prosecution alleged that the killing stemmed from a domestic dispute in Lower Mall Road, St Andrew, and that the men returned the following day armed with guns and other weapons before opening fire.

The appeal is being heard by Justices David Fraser, Lorna Shelly Williams and Marcia Dunbar-Green.

Stewart will complete his submissions today.