Carer provoked to kill disabled man, jury told

Keith McCormick. Photo / Supplied

The defence of provocation is being used in the courts once again as a man fights a murder charge for slitting a tetraplegic's throat.

Last year, Clayton Weatherston tried to convince a jury he was provoked into stabbing and cutting his former girlfriend Sophie Elliott 216 times.

His trial lawyer, Judith Ablett Kerr, QC, is now back in the same Christchurch courtroom mounting the provocation defence for Eric Neil Smail, 53, who admits killing wheelchair-bound former Paralympian Keith McCormick, 56.

Although Parliament has removed the provocation defence from the statute books, it is still available in this case because Mr McCormick was killed on July 28, 2005.

Yesterday, Mrs Ablett Kerr told the High Court jury it had probably heard all the "hoo-ha" over the defence of provocation.

"You have to deal with this case, in bringing your verdict, according to the law that includes the partial defence of provocation.

"Keith McCormick was a good man, but his needs and his demands, his requirements, were special. And they put Eric Smail under such stress that he lost the power of self-control."

This was one of the rare cases where culpability could be lowered from murder to manslaughter, Mrs Ablett Kerr said.

Crown prosecutor Barnaby Hawes said Smail, who cared for Mr McCormick at nights at his Christchurch home, told people before the killing that he was going to do it. However, they did not take him seriously.

Smail took a knife from the kitchen to inflict the slashing cut and six stab wounds in Mr McCormick's neck, Mr Hawes said. After the killing, Smail phoned several people to tell them what he had done.

Mr McCormick had suffered numerous health problems aside from the two serious accidents that left him paralysed from the neck down. However, he was a well-liked man with plans for the future.

"Despite his setbacks, he did not want his life to end and did not ask the accused to take it from him," the Crown prosecutor said.

After the killing, Smail was heard to comment that he "should have done it years ago", Mr Hawes said.

Mrs Ablett Kerr said there was no dispute that Smail caused the death of his best friend.

"Eric Smail accepts responsibility for his actions. And he doesn't seek to be excused. But he does seek to be understood, and to be convicted of the crime that is appropriate - the defence says - in this case. That is the crime of manslaughter."

While physically sound, Smail was "psychologically impaired", his QC said.

His personality was characterised by anxiety, insecurity and low self-esteem, with a history of suicidal acting out and alcoholism.

"He was, the defence says, incapable of dealing with the stresses associated with caring for somebody in Keith's condition.

"The stresses became too much for Eric Smail and ... he snapped, he lost control, and he ended the life of his dearest friend.

"He lost the power of self-control because of the circumstances that he was living with and the particular events of the day."