Eric Neil Smail v The Queen

[2011] NZSC 144

IN THE SUPREME COURT OF NEW ZEALAND

SC 104/2011
[2011] NZSC 144

ERIC NEIL SMAIL

v

THE QUEEN

Court:             Elias CJ, Blanchard and McGrath JJ

Counsel:         G J King for Applicant
C A Brook for Crown

Judgment:      24 November 2011

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS

1. The applicant seeks leave to appeal against a Court of Appeal judgment dismissing his appeal against conviction for murder following a trial in Christchurch.  The proposed ground of appeal is that the applicant did not receive a fair trial, as a result of prejudicial publicity arising from the unusual procedural history of his case and from the earlier unconnected trial in Christchurch of Dr Clayton Weatherston for murder.

2. In July 2005 the applicant killed Mr McCormick, a friend who was a tetraplegic for whom the applicant had for some time been a regular caregiver.  He pleaded guilty to murder in 2006, but for reasons that have no bearing on this application, his conviction was quashed by the Court of Appeal and a fresh trial ordered. 

3. Prior to the trial, the applicant had twice unsuccessfully applied to the High Court for a change of venue from Christchurch.  The applicant appealed against the second of these judgments to the Court of Appeal, which heard and dismissed his appeal on 18 November 2009.[1]  At that time, his trial was scheduled to begin on 23 November.  It did not, however, then proceed but ultimately took place in May and June 2010.  At the trial the jury rejected his defence that, by reason of provocation, he was guilty only of manslaughter and he was convicted of murder. 

   [1]      R v Smail [2009] NZCA 549.

4. The applicant’s sole proposed ground of appeal in this Court is that the overall effect of publicity concerning his original guilty plea, his various subsequent appeals and publicity on internet sites, coupled with links perceived by the public between his case and that of Dr Weatherston, made his trial unfair.  These issues were closely examined by the Court of Appeal when it considered his change of venue appeal.  The Court was then satisfied that the impact of publicity arising from the lengthy procedural history of the case, including that about the original guilty plea, would have ceased to be significant.  The concern over negative local sentiment arising largely from the applicant having the same lawyer as Dr Weatherston, whose trial was also in Christchurch, had been remedied with media recognition of the unfairness of public criticisms of counsel.  The Court considered that, with good management of the jury selection process, problems arising from connections between people in certain parts of Christchurch on the one hand and the applicant and the deceased on the other, could be addressed in a way that ensured the trial was fair.

5. Nothing in the applicant’s submissions seeking leave to appeal persuades us that the environment in which the trial took place in 2010 differed from that anticipated by the Court of Appeal in its judgment the previous year. 

6. We are also satisfied that, although they had the same counsel, and both raised the defence of provocation, the jury would have recognised that the appellant’s case and that of Dr Weatherston, who was tried in June and July of 2009, were not alike.  As well, by the time the trial of the applicant began, the Weatherston trial was nearly 10 months in the past.  There is no proper basis to consider that it could have tainted the applicant’s trial.  In any event, the Judge appropriately directed the jury to disregard such matters.

7. The trial Judge also took special steps prior to the trial to inform the media that all previous decisions were suppressed for publication until the verdict was given.  Those summonsed for the jury panel were warned that persons having prior knowledge of the case or associated with particular areas or organisations in Christchurch could not sit on the jury.  The Judge directed the jury to ignore the delay since the date of death of Mr McCormick.  He directed the jury that they were not to gather information from other sources and should not refer to the internet.  They were to decide the matter solely on the evidence.  In relation to provocation, they were to ignore the fact of the abolition of the defence of provocation and publicity associated with that. 

8. There was no criticism of the trial Judge’s directions concerning the prior publicity or as to how the empanelling of the jury was handled.  We are also satisfied that no arguable issue arises from the test for a change of venue applied by the Court of Appeal.

9. In these circumstances we are satisfied that it is not arguable that a substantial miscarriage of justice may have occurred at the applicant’s trial and that there is no other basis for contending that the interests of justice require leave to appeal to be given.  The application for leave to appeal is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington