Man appeals life term for killing tetraplegic friend

The Christchurch man convicted of killing 56-year-old paralympian Keith Graeme McCormick has appealed his sentence and conviction. Photo / supplied

A Christchurch man who slit the throat of his tetraplegic best friend has appealed both his murder conviction and sentence of life imprisonment, which carries a 14-year non-parole term.

Eric Neil Smail, 53, had a rocky road to trial in the High Court at Christchurch last year after killing 56-year-old paralympian Keith Graeme McCormick at the house they shared in Sumner, a seaside suburb of Christchurch, in July 2005.

There was a guilty plea initially, followed by appeals, a heart attack and an aborted trial, before a jury found him guilty.

At the Court of Appeal in Wellington today, Mrs Judith Ablett-Kerr QC told Justices Tony Randerson, Judith Potter and Ronald Young that the case had a "long and complex background".

Her client, Smail, had never disputed killing his close friend of 20 years, for whom he was night-time carer, but argued that he was provoked.

Provocation as a defence was removed by Parliament from the statute books two years ago, after Clayton Weatherston controversially claimed at his murder trial that he was goaded into stabbing and cutting former girlfriend Sophie Elliott 216 times. However, Mr McCormick's killing pre-dated that.

He was a paraplegic, due to a diving accident in 1971, when Smail met him.

Mr McCormick became a tetraplegic in 2000 after falling from his wheelchair.

"They became drinking and sports buddies," said Mrs Ablett-Kerr.

Smail eventually agreed to help look after his friend whom he loved and cared about, but his make-up and inability to cope with stress made him ill-equipped for the task long term.

His alcohol dependency and insecure personality were put to the jury which found him guilty but, she argued, jurors were not given the full picture to consider how Smail could be driven to kill his friend.

"Provocation is hugely difficult for juries to comprehend."

After cutting Mr McCormick's throat and stabbing him, Smail kissed him on the forehead.

"This wasn't cold-blooded killing. It was such a complex mixture of emotions and thoughts going through this man's mind at the time," said Mrs Ablett-Kerr.

"He killed the man that he loved."

She said the sentence imposed on Smail was excessive. Before his eventual trial last year he had served two years and seven months in jail and was "under enormous pressure" on bail for two years with severe restrictions.

Through no fault of his own, her client did not get his trial "when he was younger, healthier and his memory would have been better. And he has suffered for that."

Those factors should be taken into account and his penalty lightened.

Crown prosecutor Phil Shamy told the appeal court judges that the evidence Smail himself gave at trial did not support a defence of provocation.

"In fact, in his evidence in chief he didn't even mention snapping."

The whole issue of losing the power of self control was the key to provocation, but the lack of evidence about that in Smail's trial showed it "really had no substance," Mr Shamy said.

Although reference to personality disorders was vague and there was no history of depressive illnesses, the jury had an "avalanche" of evidence of Smail's special characteristics.

"They shouldn't have missed the point that he wasn't a coper and got easily stressed."

The Crown had sought a minimum non-parole period of 17 years.

The court has reserved its decision.

- NZPA