VANCOUVER — The B.C. Court of Appeal has ordered a new trial for a man convicted in the 2008 murder of a nurse who was attacked with a hammer.

Kim Rothgordt was found guilty of second-degree murder in January 2011 for the death of James Shannon.

The appeal court ruling said the trial judge was wrong in telling jurors a conviction could be based on a lack of evidence and that he also erred in his instructions related to the defence of provocation and intoxication.

The decision released Thursday said B.C. Supreme Court Justice Ronald McKinnon made errors in admitting Rothgordt’s criminal record and improperly instructed the jury on the meaning of proof beyond a reasonable doubt.

“It was not disputed at trial that the appellant killed Mr. Shannon,” said the ruling written by B.C. Appeal Court Justice Lance Finch.

“What was at issue was whether the appellant acted in self-defence, was too intoxicated to form the requisite intent for murder, or was provoked.”

The Crown’s theory was that the two men met at Shannon’s home for consensual sex and that Rothgordt may have been confused about his sexual identity after his first homosexual experience before he snapped and killed the victim.

Rothgordt’s defence lawyer said his intoxicated client was sexually attacked and provoked to act in self-defence when he struck Shannon with a hammer.

Finch wrote that the trial judge’s instructions about provocation and intoxication may have been confusing.

“Where both intoxication and provocation are raised as defences care must be taken to ensure that the jurors are aware of the differences in how the two defences operate,” he said.

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