Appeal court orders new trial in Alberni nurse’s killing

A three-member BC Court of Appeal pannel has ordered a new trial for a Port Alberni man convicted or murdering a male nurse in 2008.

The BC Court of Appeal has ordered a new trial for a Port Alberni man convicted or murdering a male nurse in 2008, the BC Court of Appeal website noted.

The three-member court of appeal judges panel concluded that trial judge, B.C. Supreme Court Justice Ronald McKinnon, erred in his instructions to the jury during the second-degree murder trial of Kim Winslow Rothgordt, 43.

In January 2011, a jury found Rothgordt guilty of second-degree murder in the February 2008 killing of James Shannon, 52.

The Crown’s theory was that after meeting online the two men met at Shannon’s home then had consensual sex. But due to a sexual identity crisis, Rothgordt attacked and killed Shannon.

Rothgordt’s defense was that he was the victim of a violent sexual assault and that he struck Shannon with a hammer in order to defend himself.

The fact that Rothgordt killed Shannon wasn’t disputed during the trial, B.C. Court of Appeal Chief Justice Lance Finch noted. The issue is “…whether the appellant acted in self-defence, was too intoxicated to form the… intent for murder, or was provoked,” Finch said.

In his reasons for allowing the appeal, Finch noted the jury was misdirected on Rothgordt’s defence of provocation, and on the issue of lack of evidence.

McKinnon’s instructions to the jury may have left the jury with a misunderstanding of the provocation defence, which he suggested be considered similar to intoxication. Criminal Code sections were provided, but this wasn’t enough to clear up any confusion.

“I do not consider that the instructions sufficiently explained how the defence of provocation may apply, and had the effect of depriving the appellant of the full force of this defence,” Finch noted.

“Accordingly, I would give effect to this ground of appeal.”

McKinnon’s statements to the jury that a conviction may be based on a lack of evidence, and not providing guidance with it, is an error that “…threatens to contradict the onus that the Crown proves its case beyond a reasonable doubt,” Finch noted.

Justice David Harris and Madam Justice Kathryn Neilson agreed with Finch’s ruling.

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