CThe appeal against the minimum period of imprisonment is allowed. The minimum period of imprisonment of 14 years is quashed and a period of 13 years imposed.

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REASONS OF THE COURT

(Given by Ronald Young J)

Table of Contents

Para No
Introduction	[1]
Background	[3]
Conviction appeal	[8]
(a) Trial venue	[8]
(b) Cross-examination point	[12]
(c) Special characteristics	[21]
(d) Provocation, hot blood and throes of passion	[45]
(e) Diagnostic evidence	[68]
Appeal against sentence	[76]

Introduction

Mr Smail appeals his conviction for murder and his sentence of life imprisonment with a minimum period of imprisonment of 14 years. At his trial presided over by Chisholm J the appellant admitted he had killed Mr Keith McCormick but said he did so while provoked and, therefore, should only be convicted of manslaughter.
As to his appeal against conviction there are five grounds:
(a)it was not possible for the appellant to have a fair trial in Christchurch and the trial should have been held elsewhere;
(b)the trial Judge wrongly allowed the appellant to be cross-examined regarding his refusal to be examined by a Crown appointed psychiatrist;
(c)the trial Judge erred in refusing to allow two characteristics of the appellant to be presented to the jury as “special characteristics”;
(d)the Judge misdirected the jury as to third party provocation when he said “provocation could only apply when the killing was committed in hot blood and while the accused was still in the throes of passion”;
(e)the Judge wrongly refused to allow the defence psychiatrist to refer in evidence to what he had been told by the appellant’s mother.

Background

The appellant and the deceased were long time friends. In 1971 the deceased had an accident and became a paraplegic confined to a wheelchair. In 2000 the deceased fell from his wheelchair and suffered further injuries to his spine which left him a tetraplegic.
For some months after the accident in 2000 the appellant acted as the deceased’s night carer. In November 2004 the appellant shifted into the deceased’s house in Wakefield Street, Christchurch and became his night carer Monday to Thursday nights.
In early 2005 the deceased became seriously ill with kidney stones. He was admitted to hospital. After he returned to Wakefield Street the deceased was bedridden for a period. The appellant continued to look after the deceased in the evenings.
In July 2005 the appellant obtained employment during the day. On 28 July he went to work but because of the weather his work was cancelled. The appellant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Smail

Details

AGLC: R v Smail [2011] NZCA 403
Case: [2011] NZCA 403
Decision Date: 23 August 2011

CaseChat Overview and Summary

The appeal was brought by Eric Neil Smail against his conviction for murder and his sentence of life imprisonment with a minimum period of imprisonment of 14 years. The appeal against conviction raised five issues: the trial venue, the admissibility of cross-examination regarding the appellant's refusal to be examined by a Crown appointed psychiatrist, the admission of two "special characteristics", the Judge's summing up on the issue of provocation, and the exclusion of diagnostic evidence. The appeal against sentence concerned the presumption against life imprisonment and the excessiveness of the minimum period of imprisonment. The Court of Appeal dismissed the appeal against conviction and the appeal against the sentence of life imprisonment but allowed the appeal against the minimum period of imprisonment, reducing it from 14 years to 13 years.

The Court found that the appellant's right to a fair trial was not compromised by the trial venue, the admission of cross-examination regarding the appellant's refusal to be examined by a Crown appointed psychiatrist, the exclusion of the appellant's two "special characteristics", the Judge's summing up on the issue of provocation, or the exclusion of diagnostic evidence. The Court also found that the appellant's sentence of life imprisonment was not manifestly unjust, but the minimum period of imprisonment of 14 years was excessive due to the undue delay in the trial. The Court reduced the minimum period of imprisonment to 13 years to reflect the undue delay.

Orders