Put aside views on defence, jury told

Keith McCormick. Photo / Supplied

A jury has been told it cannot be influenced by the controversy over the defence of provocation as it considers whether a man who slit the throat of his tetraplegic friend is guilty of murder.

The Crown says Eric Neil Smail, 53, planned in advance to kill former Paralympian Keith McCormick, 56, whom he cared for part-time, and told others of his intentions.

But Smail says he was provoked.

In her closing address in the Christchurch High Court yesterday, Smail's lawyer, Judith Ablett Kerr, QC, said his comments before the killing were just "dramatic talk" and, on top of demands he could not cope with, Smail snapped when Mr McCormick gave him a "telling off" for being late.

"And all his failures, all the weaknesses that really he knew that he had, came to the surface. It was more than he could bear. [Smail] was not in touch with reality in what he was doing."

The provocation defence was infamously used last year by Clayton Weatherston, who tried to show he was provoked into stabbing and cutting his former girlfriend, Sophie Elliott, 216 times.

The public outcry that followed led to Parliament's scrapping the defence, but it can be used by Smail because the killing happened back in July 2005.

It could allow him to be found guilty of manslaughter rather than murder.

Mrs Ablett Kerr, who also represented Weatherston, told the jurors they might have their own views about provocation.

"I doubt that there are many intelligent people in New Zealand ... that haven't formed some kind of view. Whatever your views ... they must be put to one side, and you are obliged to follow the law of the land."

In his closing address, Crown prosecutor Phil Shamy said there was no provocation or loss of control by Smail.

"Mr Smail did what he intended to do. Nothing that Mr McCormick said or did altered that."

The trial was about the sanctity of life as Smail claimed to be ending his friend's misery, Mr Shamy said.

"Remember, Mr McCormick didn't ask to die. Mr Smail formed the view that he should die, that he would be better off dead."

Mr Shamy said Smail was remorseless.

But Mrs Ablett Kerr said he could still not believe what he had done, and felt it was wrong, even if Mr McCormick was now in a better place.

The jury will begin deliberating on its verdict after Justice Lester Chisholm sums up today.