Wife of convicted murder Ross Appelgren to appeal - with fresh evidence she says proves his innocence

The widow of convicted murderer Ross Appelgren is returning to the Court of Appeal in an attempt to clear his name, more than a decade after he died.

In a case that could make legal history, Julie Appelgren and her legal team are restarting an appeal instigated by the Governor-General in 1994, producing new evidence they say will prove Ross was innocent.

"It's for Ross. It's for him. If he was here, he would be still pursuing it, but with his health and everything. He had to give it away," Julie says in the new RNZ podcast, Nark, released today. Appelgren's case has been investigated by host Mike Wesley-Smith.

What happened?

Ross Appelgren was convicted in 1985 of murdering Darcy Te Hira in the kitchen at Mt Eden prison. Appelgren always maintained he was not in the kitchen when Te Hira was attacked.

A self-described "old school crim" aged 33, Appelgren was serving a two-and-a-half-year sentence for six burglaries. It was the prison's first recorded homicide and took place on 6 January 1985, just three days before Te Hira was due to be released.

Te Hira was getting out early due to good behaviour, but instead was beaten to death by a blunt instrument sometime between 7.20 and 7.30 on a Sunday morning.

The 'Nark'

The prosecution's case principally relied on the eye-witness evidence of another prisoner - what other inmates call a "nark".

The witness, who said he saw Appelgren hit Te Hira in the head with a paddle used to stir food in the large prison pots, has permanent name suppression. In the podcast, he's referred to as "Ernie".

He told the court, "He [Appelgren] went in a bit of pace and swung the paddle, and I heard a clack, a loud kind of noise… Four swings". Appelgren threatened him as he left the crime scene, saying, "You saw nothing, mate. Remember nothing", Ernie testified.

After the 1985 trial and an unsuccessful appeal in 1986, Appelgren and his legal team discovered prosecutors had failed to hand over key evidence. It included Ernie's first police statements that he did not see or hear anything relating to the murder and an anonymous note he sent to prison authorities telling them "I never saw it done".

Conviction quashed, retrial ordered

In 1990, Appelgren used those discoveries to successfully petition the Governor-General, who referred his case back to the Court of Appeal. Due to the prosecution's non-disclosure of Ernie's statements, the Court quashed his conviction and ordered a retrial.

Appelgren's lawyers kept digging, and in the lead-up to the retrial learned Ernie had been placed in what was then New Zealand's most expensive Witness Protection Programme ahead of the first trial. It was called Operation Icing and included Ernie getting early release from prison in June 1985; being put up in a Christchurch motel and rental accommodation for 18 months until February 1987; and the promise of a $5000 cash payment from police, which after Ernie testified in court, grew to $30,000.

Police also promised to relocate Ernie overseas, although in the end, Ernie moved to Australia of his own accord.

These details weren't disclosed to Appelgren's defence lawyers or the jury at the first trial. Appelgren's lawyer asked Ernie during the trial "do you know of any advantage you can gain from giving this evidence today". Ernie replied, "None at all".

'In real fear for his own life'

Appelgren's lawyers then and now have claimed Ernie benefited significantly from this arrangement and was induced to falsely implicate Appelgren in the murder.

Ernie, the police and prosecutors rejected that, saying it was both legal and safer for Ernie to be held under guard outside of prison. They said because Ernie's evidence was so critical to the case against Appelgren, the measures employed to ensure he could testify were warranted.

Police wrote to the Department of Justice before the first trial, saying, "he is in real fear for his own life…While I realise your prison officers could keep [Ernie] in solitary confinement in the interests of his own safety, we are satisfied that the end result may well be a refusal of [Ernie] to give evidence".

In 1992, Apprelgan was re-tried with the prosecution case again relying heavily on Ernie's testimony. When quizzed by Appelgren's lawyer on why he failed to say he'd seen the murder in his first police statements, Ernie said he feared for his safety and didn't want other inmates to think he had narked. Appelgren was found guilty for a second time, and his subsequent appeal dismissed.

Back to the Court of Appeal

In 1993, Appelgren and his lawyers discovered that police had been told three years earlier - before the retrial - that another prisoner had told two prison guards he ordered Te Hira to be bashed due to a dispute over drugs. This prisoner said Appelgren was not involved. Neither the police nor the prosecutors told the defence of this confession, Appelgren's lawyers argued.

As a result, Appelgren again successfully petitioned the Governor-General, making him the only New Zealander to have had a conviction twice referred to the Court of Appeal by the Governor-General.

The Court of Appeal's hearing of his second referral was adjourned in November 1994 to allow Appelgren's then-legal team to gather further evidence. However, Julie says that for reasons including Ross' poor health and lack of financial resources, his appeal was never heard. Appelgren died in 2013, maintaining his innocence, and his case has remained open before the Court ever since. Julie only discovered this in late 2023, when she looked into how she could challenge her husband's conviction in light of the Supreme Court's decision in Peter Ellis.

Trying to finish what her husband started

The Ellis case was the first and only time a criminal conviction has been overturned posthumously in New Zealand, when Ellis' convictions for child sexual abuse were quashed in 2022. Appelgren was convicted of murder, so this appeal is new territory for all involved.

Julie is trying to finish what her husband started: "A very happy ending it would be, but also vindication he was right all along".

Julie has instructed a new legal team comprising lawyers Nick Chisnall KC, Kerry Cook, and well-known investigator Tim McKinnel.

"There is evidence that substantially undermines the Crown case," McKinnel believes.

Cook says the evidence against Ross is "weak".

"It's a relatively thin Crown case. For a start, you're in an environment where people have a propensity to be dishonest. There's no forensic evidence which links him to it."

Cook points to one of the many remarkable aspects of this case; that the crime scene was cleaned up before police arrived. It meant no forensic evidence, such as fingerprints, DNA, or blood could be recovered. He also argues it's clear Ernie was rewarded for his testimony with the early release and cash.

New evidence, fresh questions

Cook says the new appeal will focus on the prisoner's 1990 confession, arguing the second jury should have been made aware of the claim by the other prisoner, RNZ has decided not to name, that he had ordered Te Hira be bashed.

"That's very important evidence that a jury should get. And it is also relevant as well to… Ernie's credibility".

The appeal will also draw on other new evidence and witnesses revealed in the Nark podcast not disclosed during Appelgren's two trials.

As part of the investigation, RNZ has sent a list of more than 150 questions about the case and matters raised in this article to the Police and Crown Law, which oversees prosecutions in New Zealand

In an email, Detective Inspector Scott Beard, Auckland City CIB, wrote: "We are aware there is an ongoing Court of Appeal process which remains in the early stages at present. As this process is ongoing and has not been heard by the Court, it would be premature for Police to engage in detail at this point".

Beard promised Police would comment further "once we are in a position to do so".

A Crown Law spokesperson told RNZ by email: "At present, the Crown is actively engaged with the preliminary stages of a continuation application by Mr Appelgren's estate. The matter is being case-managed by the Court of Appeal.

"As with any other appeal process, this involves the applicant finalising the factual basis for the appeal and both sides preparing submissions for the Court. The process is still in its early stages and the factual basis for the application to continue the appeal has not yet been finalised.

"In the near future, the Court of Appeal will hear the application. It is not appropriate or sensible for the Crown to take positions on the case in the media before it reaches the Court or, indeed, the facts have been ascertained. As with any other criminal appeal process that is before the Court, we will not be engaging with the media while it is at this stage".

In a memoir written before he died, Appelgren said he wanted Ernie "made accountable" but Ernie has stood by his sworn testimony that Appelgren attacked Te Hira with the paddle and denies lying to the court.

Appelgren's new lawyers now have to convince the Court of Appeal that, despite the long delay and his death, his appeal should be heard. Cook says a hearing to consider those arguments is expected next year.

The first episode of Nark is out today, at rnz.co.nz/nark or wherever you get your podcasts; episode two comes out tomorrow.

• If you have any information on the Appelgren case/Te Hira murder, please email nark@rnz.co.nz.

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