‘Manslaughter by fright’: Joniero Irving could not foresee his victim drowning, lawyer argues

Joniero Irving at an earlier hearing in the Auckland High Court. Photo / Jason Oxenham

A man convicted of a rare “manslaughter by fright” is appealing, saying he couldn’t have known the man he chased into a harbour would stay in the water and drown.

Joniero Irving was found guilty of manslaughter after his victim, James Harley David Jenkins, 24, died following an altercation between the pair at a Viaduct bar in October 2019.

Irving was sentenced in April this year to four years and eight months’ imprisonment.

CCTV footage on the day of the incident showed the two men having an encounter at waterfront bar Andrew Andrew, with the exchange prompting Jenkins to take off an expensive necklace and hide it in his partner’s bag.

Further footage later showed Jenkins backing away with his hands up outside the bar, then sprinting off as Irving approached. Jenkins then jumped into the water, according to witnesses and evident in more footage.

James Jenkins, 24, died after going missing off Auckland waterfront in 2019. Photo / Hayden Woodward

Irving continued to shadow him and yell threats, with Jenkins trying to emerge from the water as Irving hid behind objects on the pier in a bid to lure him out.

Jenkins climbed on to a ferry and handed some gold rings over to Irving, who still would not leave him alone. Jenkins eventually jumped back into the water, and disappeared below the surface about a quarter of an hour later. The whole exchange, from his initial escape into the harbour, lasted about half an hour.

His body was recovered days later.

One of Irving’s friends described the incident as “gangster s*** seen only in mafia movies”.

Irving also texted a friend the next day, describing the chase as a “crack up” and stating: “I wanted money, brother.”

Defence lawyer at trial, Steven Lack, pointed out during his closing address that Irving left the scene about one minute after the second jump into the water. Jenkins wouldn’t disappear under the water until 13 minutes later after refusing help from bystanders, Lack noted.

During the trial, pathologist Dr Paul Morrow said the primary cause of death had been drowning, but methamphetamine and cocaine usage might have played some contributory role.

But prosecutors said it didn’t matter if drugs played a part, because it was Irving’s fault Jenkins was in a “lethal environment” in the first place.

“Mr Jenkins died because of the defendant’s behaviour - it is that simple,” said Crown lawyer Mark Harborow. “The defendant chased, he hounded, he threatened and he stole. But he wanted more.”

Justice Timothy Brewer noted at sentencing in April that Irving had not given back the rings and had not even disclosed where they were.

At the Court of Appeal in Wellington today, Irving’s lawyer, Chris Wilkinson-Smith, said the jury were incorrectly directed on how to assess the case.

He said they were asked if Irving could have foreseen his actions would cause Jenkins to jump into the water, but that they should have been asked instead whether it was foreseeable Jenkins would stay in the water as long for as long as he did after Irving left the scene.

“This is a manslaughter case by fright. It’s a relatively unusual type of manslaughter, but certainly a type of manslaughter available in the Crimes Act,” Wilkinson-Smith said.

He said the victim’s actions may have begun as proportionate in response to the threat, but became disproportionate later on, as Irving had left and bystanders were making efforts to help him out of the water.

The cocktail of drugs and alcohol in Jenkins’ system “would make him crazed and therefore his decision-making may be irrational”.

“That would not be something objectively foreseeable because it wasn’t known to Mr Irving.”

He also appealed Irving’s sentence, saying the judge should have given him more and higher discounts for remorse, youth and his cultural background.

Crown lawyer Mark Lillico told the Court of Appeal today while there were signs Jenkins may have suffered an incident of heart arrhythmia in the water, the issue was that people could survive such events if they were on land, as opposed to being in cold, deep water in the dark.

The judges have reserved their decision.

Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 10 years.