Killer caregiver loses appeal

A Christchurch man who slit the throat of his tetraplegic friend has had a bid to appeal against conviction for murder turned down by the Supreme Court.

Eric Neil Smail, 53, was a part-time carer for his "best mate", wheelchair-bound former Paralympian Keith McCormick, and shared his Sumner home.

On July 28, 2005, Smail had been drinking for several hours before coming home to find Mr McCormick - who was able only to move his head and neck - sitting in his wheelchair watching television.

Smail stabbed his mate six times in the neck and slit his throat. He then telephoned friends to tell them and waited for the police to arrive.

In August this year, the Court of Appeal dismissed Smail's appeal against his conviction and his sentence of life imprisonment.

But it reduced the non-parole period from 14 to 13 years, citing the stress of awaiting trial and having his case resolved.

Smail then sought leave from the Supreme Court to appeal against the Court of Appeal judgment.

In its conclusion released today, the Supreme Court did not accept that Smail had not received a fair trial as a result of prejudicial publicity and dismissed his application,

He had originally pleaded guilty in 2006 to murdering Mr McCormick but his conviction was quashed by the Court of Appeal, which ordered a fresh trial.

Before it took place, Smail had twice applied unsuccessfully to the High Court for a change of venue from Christchurch.

The trial eventually took place in May and June last year. The jury rejected his defence that, by reason of provocation, he was guilty only of manslaughter and found him guilty of murder.

Smail's sole proposed ground of appeal in the Supreme Court application was that the overall effect of publicity concerning his original guilty plea, his various appeals and publicity on internet sites, coupled with links perceived by the public between his case and that of the earlier, unconnected murder trial in Christchurch of Clayton Weatherston, made his trial unfair.

Although the two murder accused had the same counsel, and both raised the defence of provocation, the jury would have recognised the cases were different, the Supreme Court ruled.

Weatherston's trial was 10 months earlier than Smail's and "in any event, the judge appropriately directed jurors to disregard such matters," said the judgment.