May 24, 2010

Caregiver 'would admit manslaughter' of friend

Smail murder trial, Day 1. By Anne Clarkson

Eric Neil Smail denies murdering his long time friend, Keith Graeme McCormick, but the High Court at Christchurch was told he would admit manslaughter citing provocation as his defence.

Crown prosecutor Barnaby Hawes told the first day of the trial that it was not disputed that Smail killed Mr McCormick, but his friend did not ask him to take his life from him.

There was no agreement to end Mr McCormick's life and it was not what he wanted, he said.

He told the jury that Mr McCormick was 56 when he died. He was a well liked man with plans for the future.

n 1971 he had an accident which made him a tetraplegic with reduced mobility and feeling. In 2000 he fell out of his wheelchair and damaged his spine higher up, which caused a loss of upper limb function, and he then only had feeling from the neck up.
He was dependent on caregivers 24 hours a day.

On July 28, 2005, Smail went to a tavern and had a drink.? He then went to two more bars in Sumner and told acquaintances he was going home to kill Mr McCormick by slitting his throat that evening.

He was driven home, took a knife from the kitchen and stabbed Mr McCormack six times on the left of his throat and then slit it. It was the only area of his body with sensation, Mr Hawes said.

He then washed his hands and took some money belonging to Mr McCormick.

He phoned his sister, and another man and told them what he had done.

He phoned more people and said Mr McCormick had wound him up and he just snapped.? He told one police officer, "I killed Keith", and another one, "I should have done it years ago".

He said, "I murdered my best friend," and, "I've killed my best mate," to other officers.

In her opening statement defence counsel Judith Ablett-Kerr said there was no dispute that Smail caused the death of Mr McCormick.

She said he was his best friend of many years, and Smail accepted responsibility for his actions and didn't seek to be excused.
She said he did seek to be understood and to be convicted of manslaughter.

She said the jury would hear about conversations between Mr McCormick and Smail about how and when he wanted to die.

Smail was physically sound, but psychologically impaired, and dependent on Mr McCormick.

She said they had a special bond, and knew each other very well.

Smail was anxious, insecure, and had low self esteem. He had alcohol problems and limited coping skills.
This made him incapable of dealing with the stresses of caring for Mr McCormick, with no insight into the dangers of confusing his own needs with those of Mr McCormick, she said.

He had the best will in the world but he was ill equipped to handle it. When the stresses became too much, he snapped and lost control, and ended the life of his dearest friend, she said.

She told the jury that there was to be a partial defence of provocation, that Smail was a good man but Mr McCormick's needs and demands were very special, and they put Smail under such stress that he lost the power of self control.

This was a rare occasion where it would reduce the culpability of murder down to manslaughter, she said.

When the openings were finished Justice Lester Chisholm told the jury that the onus was on the crown to disprove provocation.
He said there was no burden on the accused to prove anything.

"Provocation has now been removed from the statute books", he said, "but that is irrelevant for this case".

The trial is continuing.