Irving v The King - [2024] NZCA 341

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA298/2023
[2024] NZCA 341

BETWEEN	JONIERO JOE IRVING Appellant
AND	THE KING Respondent

Hearing:	25 September 2023
Court:	Cooper P, Palmer and Jagose JJ
Counsel:	C B Wilkinson-Smith for Appellant M J Lillico and W J Harvey for Respondent
Judgment:	25 July 2024 at 11.00 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper P)

Joniero Irving appeals his conviction for manslaughter. He claims the jury’s verdict was unreasonable and not supported by the evidence and that the trial Judge, Brewer J, misdirected the jury on the elements of manslaughter as applied to the facts of the case. This, Mr Irving says, gives rise to a miscarriage of justice. Mr Irving also appeals his sentence of four years and eight months’ imprisonment.[1]

The relevant facts

[1]R v Irving [2023] NZHC 946 [sentencing notes].

Mr Irving was charged on the basis of unusual facts. On the evening of 6 October 2019 he was at a bar in the Viaduct Harbour in Auckland with two friends, Jack Pure and Nathaniel Ngaata. For some time they sat and drank together with another of Mr Irving’s associates until in the early hours of 7 October the victim, James Jenkins, arrived at the bar with his partner. The evidence was that Mr Jenkins had been consuming alcohol, methamphetamine and cocaine.
At about 3.30 am there was a brief conversation between Mr Jenkins, Mr Irving and Mr Irving’s associates. In sentencing Mr Irving, the Judge recorded that Mr Irving had “never given any sort of account as to what happened during that conversation or what it was that motivated [him] in [his] later actions.”[2] The Judge was however satisfied that there was “some sort of history” between Mr Irving and Mr Jenkins which made the latter wary. The Judge was satisfied that Mr Jenkins thought Mr Irving might try to make him hand over jewellery he was wearing. Out of sight of Mr Irving, Mr Jenkins had removed his Rolex watch and heavy gold necklace and placed them in his partner’s handbag, although he continued to wear two gold rings each of which contained a gold sovereign coin.[3]
[2]At [4].
[3]At [4].
At about 4 am Mr Jenkins and his partner left the bar. Mr Irving saw them outside and some sort of interaction then took place as a result of which Mr Jenkins ran off, Mr Irving in pursuit. Mr Irving was demanding jewellery be handed over and Mr Jenkins decided to dive into the adjacent Waitematā Harbour. The temperature of the water in the harbour at this time was between 14.25 and 14.4°C. The Judge said that the evidence at trial showed that Mr Irving, who was accompanied by Mr Pure, “stalked and shadowed” Mr Jenkins from the land.[4]
[4]At [5].
Mr Jenkins swam approximately 100 m towards a nearby ferry. A ferry company employee working on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Irving v The King

Details

AGLC: Irving v The King [2024] NZCA 341
Case: [2024] NZCA 341
Decision Date: 25 July 2024 at 11.00 am

CaseChat Overview and Summary

Joniero Joe Irving appeals his conviction for manslaughter and his sentence of four years and eight months’ imprisonment. The appeal against conviction is based on the claim that the jury’s verdict was unreasonable and not supported by the evidence and that the trial Judge misdirected the jury on the elements of manslaughter as applied to the facts of the case. The appeal against sentence claims that the starting point was too high and that the discounts applied were insufficient. The Court of Appeal rejected both grounds of appeal. In relation to the conviction appeal, the Court held that the Judge’s directions to the jury were consistent with earlier authority and that the jury was entitled to find that Mr Irving’s conduct remained an operative and not insignificant cause of Mr Jenkins’ death by drowning. In relation to the sentence appeal, the Court found that the Judge was entitled to adopt a higher starting point because of the gravity of the offending and that the discounts applied were appropriate.

Orders