【本報訊】美林集團全球資本投資部常務董事簡崇諾(Robert Peter
Kissel)○三年被殺,其妻Nancy Ann Kissel 事後裁定謀殺罪成被判終身監禁,早前她向終審法院提出上訴。終院昨下達判詞,指控方在原審時不當地要求上訴人就申請保釋的內容作出解釋,加上主控官咄咄逼人的盤問方式等,均可能對上訴人造成審訊不公,因而裁定她上訴得直,案件發還重審。法官下令四十五歲上訴人Nancy仍需繼續收押,但她可向原訟庭申請保釋。上訴人當得知結果後,開心得灑淚。上訴人兩名女友人在庭外稱,上訴人身體雖然很虛弱但精神很好,又指已替她將上訴結果告知她在美國的父母,他們也感到高興。
傳聞證供不應作考慮
終院法官在判詞稱,上訴人申請保釋期間所提及的內容,不應被接納為審訊的證據;惟本案主控官卻在盤問時,要求上訴人就她的律師於保釋申請時之言論作出解釋,實在不恰當。
判詞續指,控方應以持平及全面的態度去舉證,惟本案主控官在原審時,卻似乎有點「過分熱切」,鍥而不捨地盤問上訴人,有可能令陪審團對上訴人產生偏見。
此外,兩名控方證人表示死者被殺前,曾提及懷疑上訴人想向他下毒,因而認為上訴人想殺害死者,終院法官指這些屬傳聞證供,不應被接納;而原審法官卻沒有提醒陪審團不要考慮這些證供。
上訴人被控在○三年十一月二日於陽明山莊寓所用一個藝術品擊斃死者,○五年裁定謀殺罪成。
案件編號:FACC 2/09
11 February 2010
【本報訊】美林證券高層簡崇諾於03年遭有外遇的妻子
Nancy Ann Kissel 餵加料奶昔及用硬物殺死,兩年後 Nancy被裁定謀殺罪成,判囚終身。經過多年上訴,終審庭昨指案件原審時,主控官錯誤引用證據作盤問,法官亦錯誤引導陪審團,案件技術上出錯。終審庭五位法官一致裁定 Nancy上訴得直,案件發還就謀殺罪重審, Nancy需繼續還押監房。 記者:黃幗慧
偷戀電視維修員
在案件開審前, Nancy以精神狀況良好為由申請保釋。案件審訊時, Nancy聲稱自己患有失憶。主控官卓博文引用保釋申請時的內容作盤問,指精神科醫生認為她精神正常,質疑 Nancy證供的可信性,又批評
Nancy誤導法庭。終審庭昨認為有關批評不適當,亦不應引用 Nancy與第三者證供的出入處作盤問。就有關內容,卓博文以多過一日時間盤問,終審庭認為他沒有公平地處理審訊,令陪審團對 Nancy的誠信有不利的評估。原审时控方错误引用精神状况资料盘问被告,令陪审团质疑被告诚信,原审法官亦没有向陪审团指出,被告有可能是自卫杀人。
控方傳召死者生前好友及負責調查 Nancy婚外情的私家偵探作供,證明死者案發前已向他們表示婚姻出現問題,擔心會遭妻子殺死。終審庭指,有關證供為傳聞證供,雖然可以呈堂,但原審法官倫明高引導陪審團時,卻無說明傳聞的證供內容不一定是事實,犯下重大錯誤。
Nancy被控於03年11月2日,在大潭陽明山莊寓所內,謀殺40歲的丈夫簡崇諾。控方案情指,育有三子女的夫婦感情已轉淡。 Nancy03年3月因沙士襲港,暫回美國,戀上電視維修員 Michael。
簡聘請私家偵探調查,發現 Nancy與情人的情信,又發現她瀏覽藥物網站,控方相信她萌起殺夫念頭。案發當日, Nancy炮製有安眠藥的奶昔給簡飲,然後用硬物將簡擊斃。 Nancy以地毯包裹簡的屍體棄於儲物室。
案件編號: FACC2/09
FACC No.
2 of 2009
IN THE
COURT OF FINAL APPEAL OF THE
HONG
KONG SPECIAL ADMINISTRATIVE REGION
FINAL
APPEAL NO. 2 OF 2009 (CRIMINAL)
(ON
APPEAL FROM CACC NO. 414 OF 2005)
_______________________
Between:
NANCY
ANN KISSEL Appellant
- and -
HONG
KONG SPECIAL ADMINISTRATIVE REGION Respondent
_______________________
Court: Chief Justice Li, Mr Justice Bokhary PJ,
Mr
Justice Chan PJ, Mr Justice Ribeiro PJ and
Sir
Anthony Mason NPJ
Dates of
Hearing: 12-14, 18, 20-21 January 2010
Date of
Judgment: 11 February 2010
_______________________
J U D G
M E N T
_______________________
Chief
Justice Li, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason
NPJ:
Introduction
After a
very lengthy trial, involving complex and conflicting evidence, before Lunn J
and the jury, the appellant, Nancy Kissel, was convicted on 1 September 2005 of
the murder of her husband on 2 November 2003 and sentenced to life
imprisonment.
The
prosecution case was that the appellant killed the deceased in what amounted to
a premeditated murder by smashing his skull by five separate blows delivered to
the upper right side of his head, with a heavy metal ornament weighing 3.7 kg,
any one of which might have been fatal as the fractured skull bone was driven
through his brain. The ornament
consisted of two figurines and a baseplate held together by nails. The prosecution alleged that, at the time
when these blows were delivered from above, the deceased was either unconscious
or sufficiently impaired by a cocktail of drugs, traces of which were found in
his stomach fluid and liver in the autopsy, that he could not defend himself. Four of the drugs had been prescribed for the
appellant in the period of ten days prior to the deceased’s death. The four drugs were sedatives and had
sleep-inducing properties.
The
prosecution alleged that the deceased was tricked by the appellant, on the
afternoon of the day of his death, into consuming the cocktail of drugs
disguised as a milkshake, which she had prepared. Mr Andrew Tanzer (“Mr Tanzer”), a neighbour
at Parkview, also consumed a milkshake prepared by the appellant at the same
time. There was evidence that, following
their consumption of the milkshakes, both the deceased and Mr Tanzer were
sleepy, tired and disoriented.
The
prosecution also alleged that the deceased was lying prone either on the bed or
in the master bedroom when he was attacked.
He was then clad in his sleeping attire, a T-shirt and boxer
shorts. The T-shirt was heavily
blood-stained on the left front but not on the back when examined by the
forensic pathologist.
Although
the appellant accepted that she killed the deceased, she pleaded not guilty,
raising by way of defence, self-defence, provocation and diminished
responsibility. She abandoned the
diminished responsibility defence after she had been cross-examined at the
trial. The issue of provocation was left
to the jury, despite objection by the appellant’s counsel, Mr Alexander King
SC.
Before
the trial, the prosecution relied on very strong circumstantial evidence that
the appellant had killed the deceased, there being no direct evidence at that
time of the fact. At the trial, however,
it emerged, at the beginning of the appellant’s cross-examination, that there
was no dispute that she had killed the deceased, with the result that the
principal issues for the jury were ultimately self-defence and provocation.
The
defence case was that the appellant killed the deceased after a violent
argument which took place in the family home, the Parkview apartment in Hong
Kong. The appellant gave evidence that
the argument began when the deceased informed the appellant that he had filed for
divorce and he “was taking the kids”.
She said that he stated that she was not fit to take care of the
children – there were three young children of the marriage – and was sick. After further argument she noticed that the
deceased was leaning on a baseball bat, which he then moved from one hand to
the other, so she picked up the metal ornamental statue from a table in the
hallway. The deceased then began to
assault her, pulled her into the bedroom and attempted to have anal sex with
her. She resisted him and hit him on the
head with the ornament causing his head to bleed. He was then sitting by the closet. After refusing her offer to help him up, he
then threatened to kill her and came at her, hitting her with the baseball
bat. She defended herself by holding the
ornament in front of her face. Although
she had no recollection of the cause of the five fatal lacerations to the
deceased’s head, she accepted that she killed him with the ornament in
defending herself. The deceased was
well-built, athletic, about 40 years of age, 180 cm tall and weighing 69
kg. The appellant, of like age, was of
relatively slight build.
The
appellant’s inability to recall the blows that killed the deceased was, she
said, caused by memory loss which affected her recollection of events on that
day and for some time thereafter.
The
appellant’s appeal against her conviction was unanimously dismissed by the
Court of Appeal (Stuart-Moore VP, Stock JA and Wright J). The appellant now appeals to this Court,
pursuant to the grant of leave by the Appeal Committee. The Court certified that the following
question raises a point of law of great and general importance:
“ Whether
the prosecution is entitled at trial to cross-examine a defendant by reference
to materials relied on by such defendant on bail application(s), such as
affidavits, medical reports, and counsel submissions and if so, to what extent,
and for what purpose.”
The
Court restricted leave to appeal to three grounds of appeal. They are:
“(1) Ground
1 (Cross-examination on Matters Pertaining to Bail Applications), on the
abovementioned point of law and on the ground that it is reasonably arguable
that substantial and grave injustice has been done;
(2) Ground 2 (Hearsay Evidence), on the ground
that it is reasonably arguable that substantial and grave injustice has been
done; and
(3) Ground 3 (Erroneous Direction on
Self-Defence), on the ground that it is reasonably arguable that substantial
and grave injustice has been done.”
The
prosecution contends that, in the event that any of the grounds of appeal are
made out, nonetheless the appeal should be dismissed on the ground that there
was no miscarriage of justice within the meaning of the proviso to section
83(1) of the Criminal Procedure Ordinance.
The
marriage and its breakdown
In order
to understand how the issues were dealt with at the trial and the setting in
which the questions now sought to be argued arise, it is necessary to give an
account of the marriage and its breakdown, the events leading up to the
deceased’s death and the events immediately following his death.
The
appellant married the deceased in 1989.
They lived in the United States until 1998 when the deceased accepted a
position with Goldman Sachs in Hong Kong.
In 2000, he joined Merrill Lynch on an annual income of US$175,000 with
commissions and bonuses, which amounted to US$5.25m in the three years before
his death in 2003. His work often
involved overseas travel. According to
his second in command and friend, Mr David Noh (“Mr Noh”), he was “extremely
professional”, got along with everyone and was a “social drinker”.
The
appellant was the source of most of the direct evidence as to the marriage and
its breakdown. According to her account,
the marriage relationship progressively deteriorated in the five years before
the death of the deceased due to his excessive drinking, cocaine abuse,
violence and increasing demands for anal sex to which she objected, as well as
for oral sex. The prosecution, however,
relied on other evidence which showed that the deceased had a pleasant
character and personality and was a loving father. Witnesses said that he was not a violent man
and did not drink to excess or use cocaine.
The prosecution pointed also to the absence of independent or medical
evidence to support her evidence that she had sustained physical injuries as a
result of the deceased’s violence and bleeding from her anus as a result of
forced anal sex. The appellant’s friends
testified that they saw injuries or bruises on occasions but they did not
identify what caused them.
The
appellant described the deceased as becoming more forceful in his sexual
demands as time passed, demands which, when they moved to Hong Kong in 2000,
included anal and oral sex. She
described a pattern of increasing violence in which he overpowered her so that
he could have anal sex, sometimes after he had taken cocaine or alcohol, or
both. He and his brother were taking
cocaine, she said, at the time of her marriage, a claim which was denied by
others.
According
to the appellant, the pattern of violence began as early as September
1999. In one incident in 2001, she said
that he had broken one of her ribs as she resisted his attempted to have anal
sex. When she was given a brace for the
injury at the Adventist Hospital, he had ripped it off, causing a fresh
injury. On each occasion she said she
made up a story to conceal the real cause of the injury.
By the
end of 2002, the marriage relationship had seriously deteriorated. A family skiing holiday at Whistler, at
Christmas 2002, involved a number of unhappy incidents culminating, the
appellant said, in one incident in which she was hit across the mouth and fell
down a flight of stairs. On their return
to Hong Kong, they discussed marriage counselling, but no action was then
taken.
Mr Noh
gave evidence that the deceased had disclosed to him that there were problems
with the marriage and that the deceased had engaged a private investigator to
watch the appellant when she was staying at their house in Vermont between 29
March and 30 July 2003. Mr Noh said that
he had also been told by the deceased that he had installed spyware to monitor
the appellant’s computer. A computer
expert, Constable Cheung Chun-kit, gave evidence that the spyware was installed
on or about 31 January 2003.
When the
appellant and her three children went to Vermont in 2003, she said that, when
the deceased joined the family in Vermont in May 2003, she and the deceased
argued almost every day. He was using
cocaine and was having huge mood swings.
He was also using a lot of sleeping pills. Because of the “pretty intense” sexual
activity, including anal and oral sex, she crushed an “Ambien” sleeping pill
and put it in his scotch whisky bottle “thinking it would calm him down”. She did not notice that it had any
effect. She also said that she had
crushed a pill and put it in the whisky bottle in Hong Kong, but noticed that
the crushed pill was visible in the bottle and threw the contents away. The trial judge correctly instructed the jury
there was no evidence of poisoning whisky in Hong Kong.
On his
return to Hong Kong, the deceased telephoned Mr Frank Shea (“Mr Shea”) in New
York and instructed him to conduct surveillance of the appellant who was still
in Vermont and to take note of Mr Michael del Priore (“Mr del Priore”), an
electrician, with whom the deceased believed she was having an affair. Mr del Priore was visiting the Vermont house
in connection with “high-end” television and audio equipment which was being
installed there.
Mr Rocco
Gatta, who carried out the surveillance, reported his observations along with
video footage to the deceased. The
details of his report are not material as, in cross-examination, the appellant
acknowledged that she had sexual intercourse with Mr del Priore on “three-ish”
occasions.
That the
appellant had a close and intimate relationship with Mr del Priore is evident
from the terms of e-mails which she sent to him from both Vermont and on her
return to Hong Kong where she arrived on 31 July 2003. The deceased knew of the closeness of that
relationship from copies of the e-mails accessed through the spyware equipment
and found in his office after his death.
The deceased informed the appellant of his knowledge while she was still
in Vermont and asked her to return to Hong Kong.
While
the appellant complained of the way in which the deceased treated her, he
complained of her aloof and distant attitude to him. In an e-mail sent to her in Vermont from Hong
Kong before his second visit to Vermont when she was still there, he
acknowledged their tense relationship and urged her not to inflict emotional
pain on him and expressed his love for her.
On 29
July 2003 and thereafter, the deceased sought advice from Hampton Winter and
Glynn, solicitors, about divorce proceedings.
He stated that he believed that his wife had formed a relationship with
a man in Vermont and he wanted to maintain contact with his children,
particularly at weekends. On 31 October
2003, two days before his death, the deceased told Mr Robin Egerton (“Mr
Egerton”), a partner of the firm of solicitors, that he would discuss with his
wife their future matrimonial arrangements.
In the
meantime, on 20 August 2003, the appellant made an internet search on her
computer, again captured by a spyware report, a copy of which was found in the
deceased’s office. The report revealed a
search for “sleeping pills overdose on sleeping pills medications causing heart
attacks drug overdose”. In evidence, the
appellant said that she made the search because she was contemplating suicide
and to protect the children from a realization that this is what she had done,
she was looking for a means of concealing this.
By this time the appellant seems to have realized that the deceased had
suspicions about her because in a diary entry on 21 August 2003 she
acknowledged that he would never trust her again. She said in evidence that she was so
depressed that she attempted suicide on two occasions, once at Vermont in May
2003 and later in Hong Kong on 29 August 2003.
There was no independent evidence of the two suicide attempts. And she told her psychiatrist, Dr Wong
Chung-kwong (“Dr Wong”), that she had not attempted to commit suicide.
In
August and September 2003, the appellant and the deceased consulted a marriage
counsellor, Ms Ceilidh Halloran (“Ms Halloran”). The consultations ended in a violent
argument, according to the appellant. It
was evident by this time that the marriage was dysfunctional.
Events
preceding the deceased’s death
On 29
August 2003, the appellant obtained 10 tablets of “Stilnox” (marketed in the
United States as Ambien) from the clinic of Dr Desmond Fung (“Dr Fung”) in
Central. On 30 October 2003, she
obtained from the clinic 10 tablets of Stilnox, 20 tablets of Amitriptyline and
15 tablets of Lorivan. In the meantime,
on 23 October, she obtained 10 tablets of Rohypnol from the clinic of Dr
Annabelle Dytham (“Dr Dytham”) in Wanchai.
On the same day, she found a website through a Google computer search
for Rohypnol which stated that it had similar effects to alcohol as it could
“reduce inhibitions, impair judgment and cause the victim to become
unconscious” and, as well, that it “can produce amnesia”. In evidence, the appellant said she took
these pills in an attempt at suicide but changed her mind and made herself
throw up.
A
pharmacologist, Professor John Yeung Hok-keung, called by the prosecution,
described all four drugs as having sedative or sleep-inducing properties. Traces of all four drugs were found on analysis
of the deceased’s stomach contents after a post mortem.
According
to the evidence of both Dr Fung and Dr Dytham, the appellant disclosed to
neither her visits to the other, nor did she disclose that she had obtained
medication for the same professed complaint of sleeplessness.
After
the appellant’s first visit to Dr Fung’s clinic on 29 August 2003, the deceased
telephoned Mr Shea and said that he was concerned that his wife was trying to
kill him by poisoning him. He had drunk
some scotch whisky from the decanter at home and felt “woozy and very
disoriented”. Although the appellant
admitted putting sedatives in his whisky at Vermont, she denied doing so in
Hong Kong, apart from one incident already mentioned. In the history she gave to Dr Fung she could
not recall for how long she continued putting sedatives in the deceased’s
whisky after the episode in Vermont. The
reception in evidence of the deceased’s statement to Mr Shea and of statements
made by him to Ms Bryna O’Shea (“Ms O’Shea”), referred to below, are the
subject of the second ground of appeal.
The
events which led to the deceased’s death began when Mr Tanzer brought his daughter Leah to play with
the Kissels’ daughter June at the Kissel’s apartment that afternoon. Mr Tanzer took Leah there at about 2:45
pm. He and the deceased conversed in the
living room for about 45 minutes while the children played elsewhere. As Mr Tanzer was about to leave, June Kissel asked
him to stay for a drink. She returned
with two tall glasses filled with a milkshake.
Mr Tanzer described them as having a reddish colour and as tasting quite
sweet, with a banana flavour. He
finished the milkshake and thought that the taste was strange. As he was leaving, he asked the appellant
“What was in that milkshake?” She
replied that it was a “secret recipe”.
Mr
Tanzer went straight home. Although he
had not had any alcohol to drink that day, he found that for most of the rest
of the day he either blacked out or was semi-conscious or asleep. The next morning he felt “quite disoriented”,
unable to recall much of what happened after 4 pm the previous day. He described it “as a little bit like
amnesia”, an experience which he had not previously encountered. His family noticed his unusual appearance and
condition.
At 4:51
pm the deceased made a telephone call to Mr Noh. The call lasted for ten minutes. Mr Noh said that the deceased was talking on
a different tangent and kept saying how tired he was feeling. The answers which the deceased gave seemed
bizarre; he seemed “very mellow” and his speech was slurred. The deceased did, however, mention that he
would later be discussing the issue of divorce with the appellant. Later that evening, the deceased did not
participate in an important telephone conference call between Merrill Lynch
personnel, in which he was scheduled to participate, which was arranged for
that evening.
The
deceased, who had been in the children’s playground with his son Reis, returned
to the apartment at 5:15 pm, following a request to do so by the appellant,
conveyed to him by Maximina Macaraeg, known as “Min”, one of the two domestic
helpers. When Min and the children
returned to the apartment at 6:15 pm, the appellant asked Min to tell the
children not to make a noise as “their Daddy was sleeping”. In the meantime, between 5:15 pm and 6:15 pm,
the appellant and the deceased were alone in the apartment. It appears that the deceased was killed at
that time when, according to expert evidence, the drugs which, it is alleged,
he consumed would have been at peak concentration.
Although,
in paragraph 7 above, there is a short account of the violent argument which
led to the deceased’s death, it will be necessary later to set out in detail
what the appellant said in evidence about the incident. Her evidence is the only direct evidence of
what then happened and it was critical to the defences of self-defence and
provocation, in particular to the third ground of appeal which relates to the
trial judge’s direction on self-defence.
Events
following the death of the deceased
In the
days which immediately followed the deceased’s death on 2 November, the
appellant engaged in a series of activities which were calculated, if
successful, to conceal the deceased’s death.
She arranged for the purchase of items including bleach, carpets,
furniture, cushions, towels, cardboard boxes, adhesive tape, bedding materials
and peppermint oil. When discovered in
the Kissel’s storeroom in Parkview on 6 November 2003, the deceased’s body was
found in a sleeping bag with towels inside a rolled-up carpet over which was
placed plastic sheeting secured by rope and masking tape, with four cushions
placed on top and held together by adhesive tape, along with items of
furniture. The appellant had arranged
for the Parkview staff to carry the rolled up carpet, containing the deceased’s
body from the living room of the apartment to the storeroom elsewhere in the
building, evidently having herself moved the body from the master bedroom to
the living room, a distance of 25 metres.
Also placed in the storeroom were a wooden cabinet, two chairs taken
from the master bedroom, the deceased’s golf clubs and some cardboard boxes.
The
appellant had previously arranged for the storeroom to be cleared of its
earlier contents after she had discovered, in response to her inquiry, that
there was no additional storeroom available for rent. The new bedding materials replaced those
which were bloodstained while one new carpet was used to replace a bloodstained
carpet in the bedroom. Some bloodstained
items were discovered later in the children’s bedroom.
The
appellant also concealed the deceased’s death by saying to others, even to the
police and her own father, that the deceased had left after a violent
argument. In these statements she
conveyed to others that he was alive but she was unaware of his
whereabouts. She said to the police that
she had left messages for him. The
prosecution relied on all these aspects of concealment of the deceased’s death
as evidence of consciousness of guilt.
Another
aspect of the appellant’s conduct in the days following the deceased’s death
was her complaint of pain and injuries which she said that she had sustained in
the violent argument on 2 November 2003.
For the purposes of this appeal, it is unnecessary to dwell on the
extensive evidence which related to this issue.
The medical evidence contradicted her claim that an injury to her hand
was a burn caused by the oven toaster.
Dr Iris Li (“Dr Li”), who examined the appellant at Ruttonjee Hospital
on 7 November 2003 and found bruises on her hands, arms and elbows, concluded
that the bruising could be 2 to 3 days old but was unlikely to be 4 to 6 days
old.
Dr
Dytham, with whom the appellant obtained an appointment on 4 November 2003,
considered that the appellant was exaggerating the pain of which she
complained. Dr Dytham noticed, as did Dr
Li, puncture wounds on the inner creases of her right hand (which could have
been caused by the nails that held the figurines to the baseplate of the
ornament before they were detached in the episode that resulted in the
deceased’s death) and what were possibly carpet burns to both knees (which
could have been caused by dragging the deceased’s body from the master bedroom
to the living room).
The
appellant said to Dr Dytham that the puncture marks may have been caused by her
holding a fork the wrong way round when she was defending herself during the
violent argument. At no time did the
appellant mention to Dr Dytham that the deceased used a baseball bat; the appellant
told Dr Dytham that the deceased used his fist and feet. According to Dr Dytham, no area of the
appellant’s injuries implied serious forceful blows. Although the appellant complained to Dr
Dytham and others of fractured ribs and fingers, X-rays revealed no fractures.
The
prosecution invited the jury to disbelieve the appellant’s account of the
history of the marriage and of the critical events on the ground that aspects
of her account were contradicted by her own statements to others and by the
evidence of a number of witnesses. The answers
she gave to a questionnaire put to her by Dr Dytham on 26 February 2002 provide
an example. In her answers, she said
that she had no physical or emotional problems with sex and that there was no
bleeding after intercourse and that it was not painful. She also told Ms O’Shea, a mutual friend of
the deceased and the appellant, that they had a “wonderful sex life”. It does not appear when that statement was
made; it would have been before the marriage had deteriorated in 2002 and quite
possibly earlier than that.
The
prosecution relied heavily on the appellant’s failure to make any mention of
the baseball bat in her various references to the violent argument on 2
November 2003, when she reported to others what had happened. Indeed, she first mentioned the baseball bat
in giving her history to Dr Wong, the psychiatrist, on 28 January 2005, almost
two years after the deceased’s death. It
will be recalled that, on 4 November 2003, less than 48 hours after the deceased’s
death, she told Dr Dytham that the deceased used his feet and fist.
The
defence case as to the appellant’s memory loss and metal meltdown
In order
to consider the appellant’s grounds of appeal, it is necessary to focus on the
defence case at trial as to the appellant’s claimed memory loss and mental
meltdown. According to the evidence, the
appellant seemed to suffer some sort of breakdown late on 6 November or early 7
November when she realized that the police were about to search the Parkview
storeroom. She was taken to the
Ruttonjee Hospital where she continued to tremble over the whole of her body
and was unable to speak. In the early
hours of 7 November she was arrested for murder. She was later transferred to the custodial
ward of Queen Elizabeth Hospital where she did not respond to questioning. On or about 18 November 2003 she was taken to
the Siu Lam Psychiatric Centre (“Siu Lam”) where she remained until released on
bail.
When
cross-examined at the trial in relation to the events of 2 November 2003 and
the days which followed, the appellant answered that she had no
recollection. According to her, the loss
of memory persisted for a period of six months while she was in Siu Lam when
“images and pieces of things” began to come back but the overall memory loss
still affected her when she gave evidence.
In
response to the prosecution case that the appellant had given false accounts of
what happened in the evening of 2 November 2003 and the whereabouts of the
deceased thereafter in order to cover up the fact that she had killed him, Mr
King SC for the appellant, in his closing address, invited the jury to find
that she had suffered a mental meltdown.
The only
witnesses called for the defence at the trial to give medical evidence were Dr
Dytham and Dr Fung. Their evidence neither
supported a defence of diminished responsibility nor went so far as to say that
the appellant was suffering from amnesia or any psychiatric condition that
resulted in, or contributed to, amnesia, loss of memory or mental meltdown. Dr Fung, whom the appellant again consulted
in October 2003, said she was then in a “distressed mental state” but he did
not relate that condition to amnesia, loss of memory or mental meltdown. However, in re-examination, he said that
dissociative amnesia was a condition from which a person sometimes suffered
after being exposed to a traumatic situation and that it involves loss of
memory varying from minutes to years and that recovery from it may come back
bit by bit. Dr Wong’s conclusion that
the appellant suffered from dissociative amnesia had emerged in the appellant’s
cross-examination. Dr Fung also said
that he did not detect any evidence “she was making a story”.
Ground
1: Cross-examination of the appellant in relation to the bail proceedings and
other matters
(a) The report of Dr Wong
The
appellant was, however, cross-examined on matters that went to the contents of
a report dated 12 May 2005 by Dr Wong who had interviewed the appellant on 13,
20, 28 January, 1 and 8 February 2005.
Dr Wong’s report was served on the respondent on 13 May 2005 under
section 65B of the Criminal Procedure Ordinance. And the legal representatives of the
appellant informed the court and counsel for the prosecution that Dr Wong would
be called as a witness. The first
indication that the prosecution received that Dr Wong would not be called was
at the close of the appellant’s case. So
the appellant was cross-examined by the prosecution in the belief that Dr Wong
would be called and that diminished responsibility was a live issue.
In his
report, which was not tendered in evidence, Dr Wong concluded that the
appellant was suffering from major depressive disorder and probably
dissociative amnesia on 2 November 2003.
Dr Wong also said that it was likely that she then suffered from
dissociative fugue for a few days. His
view was that the dissociative amnesia probably continued for a few weeks or
even longer, while she continued to suffer, as at the time of his report, from
a mild degree of major depressive disorder.
Dr Wong’s conclusions were based largely on the history which she and,
to a much lesser extent, her mother provided of a troubled upbringing and a
dysfunctional marriage. The appellant’s
account to Dr Wong was of a husband who became violent, assaulted her, drank to
excess, used cocaine and forced her to have anal sex which she disliked, as
well as oral sex, a marriage which culminated in the violent argument on 2
November 2003 and resulted in the deceased’s death.
The
prosecution therefore cross-examined the appellant with a view to destroying
the factual basis on which Dr Wong’s report was based. And it is, and was, the prosecution’s case at
trial, that the factual basis for Dr Wong’s opinion founded on what the
appellant told him was severely damaged, if not destroyed, by the cross-examination
of the appellant and other evidence.
The
cross-examination of the appellant on the bail proceedings, which is the
subject of the first ground of appeal was designed (a) to undermine the defence
of diminished responsibility and the claim of memory loss by establishing that
the appellant’s case in the bail proceedings was that she had no psychiatric
problems; and (b) to suggest that the appellant was not a credible witness by
reference to the inconsistency between the case presented in those proceedings
and the case to be presented at trial.
The use at trial of the materials in the bail proceedings was relied on
in the cross-examination to show that in those proceedings the appellant had
put herself forward as a person with no psychiatric problems.
(b) The report of Dr Yuen
Dr Henry
Yuen Cheung-hang (“Dr Yuen”) was another psychiatrist. He treated the appellant while she was in Siu
Lam. His report dated 24 May 2005, with
the consent of the appellant, was received by the judge, but not by the
jury. Dr Yuen said that he regarded the
appellant as “mentally stable”, a view which was consistent with his earlier
report dated 3 November 2004 when he said she was “mentally fit to be
released”.
(c) The documents comprised in this ground of
appeal
The two
applications for bail were heard on 1 November 2004 (Burrell J) and 19 May 2005
(Lunn J, the trial judge) and were granted.
The hearing before Lunn J was after arraignment shortly before the
commencement of the trial and related to the continuation of the appellant’s
bail. The appellant was represented by
Mr John Griffith SC instructed by Mr Simon Clarke (“Mr Clarke”) of Mallesons
Stephen Jaques. The documents which are
the subject of this ground of appeal and featured in the cross-examination of
the appellant at the trial fell into six categories. They are:
the
transcript of the representations by Mr Griffiths SC to Burrell J;
affirmations
by the appellant’s solicitor Mr Clarke;
the
exhibits to those affirmations, including medical records from 18 November 2003
to 3 July 2004 of the appellant by persons at Siu Lam where the appellant had
been a patient following her arrest until she was released on bail;
affirmations/affidavits
of the appellant’s three sureties;
Dr
Yuen’s reports of 3 November 2004 and 24 May 2005, together with correspondence
between the appellant’s solicitors and the Department of Justice; and
the
opinions (as distinct from the appellant’s history as related by her) in the
report of Dr Wong.
The
interpretation of the bail provisions of the Criminal Procedure Ordinance
Mr McCoy
SC, for the appellant, submits, first that the cross-examination of the
appellant on the bail materials contravened the bail provisions of the Criminal
Procedure Ordinance (Cap 221). Mr McCoy
SC’s primary submission is that the relevant provisions of the Ordinance
prohibit the use at trial of related bail proceedings. This submission must be rejected.
The
relevant prohibition is that contained in section 9N(b) which deals with “Bail
applications”. It is in these terms:
“In any bail proceedings –
… (b) the person being the subject of these proceedings shall not be
examined or cross-examined by the court or by any person as to the alleged
offence with which he is charged and no inquiry shall be made of him as to that
offence alleged.”
Two
points need to be made about this provision.
First, its operation is limited to bail proceedings. It does not speak directly to the trial
itself. Secondly, the prohibition is
only against oral examination and cross-examination of the applicant for bail
“as to the alleged offence”. The
statement by McGarvie J in R v Sanghera,
in relation to a decision whether to grant bail, that:
“The evidence given to enable the
judge to make such decisions, of course, never goes before the jury.”
finds no
support in section 9N(b) and its related provisions. In what was an ex tempore judgment, his
Honour did not explain the basis of his comment.
There is
nothing in the statutory context of section 9N itself or in the related
provisions in the Ordinance, in particular sections 9G and 9O, to support the
view that there is to be implied in section 9N, or its related provisions, a
general prohibition against the use at trial of materials in bail proceedings
extending beyond the express prohibition in section 9N(b). Nor does the legislative history, in
particular the Law Reform Commission Report on “Bail in Criminal Proceedings”,
support the implication of such an extended prohibition. The express prohibition, along with the
effect of contravention on the admissibility of evidence at the trial, serves
the purpose of protecting an accused from making statements in oral evidence in
bail proceedings which can be used against him at trial.
Under
section 9N(a) the court is given, subject to section 9N(b), a wide power to
make such inquiries of and concerning the applicant for bail as it considers
desirable, while, under section 9N(d), the court can take into consideration
matters agreed upon by the parties and, under section 9N(e), the court can take
into account:
“any other material or
representations which it considers credible or trustworthy in the
circumstances.”
These
provisions enable the court to have regard to materials, whether or not they
constitute admissible evidence, and enable both applicant and prosecutor to
present informal materials to the court.
It does not follow, either from this or from section 9N(c), which
authorizes the prosecution to submit evidence on specified matters, “in
addition to any other relevant evidence”, that the parties or either of them
are prohibited on the bail application from adducing admissible evidence,
subject to section 9N(b). Such a bizarre
interpretation, which seeks to read “other material” in section 9N(e) as “material
not being admissible evidence”, cannot be sustained.
It is
our view that evidence led at a bail hearing in breach of section 9N(b), having
been illegally given or obtained, would not be admissible at the trial. This view is supported by R v Paonessa and
Paquette, a decision of the Ontario
Court of Appeal, affirmed by the Supreme Court of Canada. It was a decision on section 457 of the
Canadian Criminal Code which was then expressed in terms similar to section
9N(b). The decision does not, however,
support the total immunity of bail proceedings for which the appellant
contends. Our view that evidence which
contravenes section 9N(b) is inadmissible in the subsequent trial will protect
an accused person and assist in achieving an important purpose of the
provisions, namely that of enabling an applicant to present his bail
application fully without being exposed to the risk of giving oral evidence
which will be used against him at trial.
In passing we should mention, though it has no consequences for the
present case, that the expression “as to the alleged offence” includes defences
to, as well as the elements of, the alleged offence.
(d) The bail proceedings
The
appellant and her legal representatives in the bail proceedings sought to make
the case that she was not then suffering from any psychiatric problems. This was a matter of concern to Burrell J who
thought that her stay in Siu Lam might be indicative of the existence of a
psychiatric disability which might be a reason for refusing bail. The material put before Burrell J on behalf
of the appellant was designed to negate this possibility. Nonetheless the judge required a report from
Dr Yuen who was treating the appellant at Siu Lam. It was that report dated 3 November 2004, in
which he stated she was “mentally stable” and fit to be released on bail. She continued to see Dr Yuen as a condition
of her bail and that led to his later report dated 24 May 2005 that she was
“mentally stable”.
Mr
Clarke, in his first affirmation of 26 October 2004, said that he was the
solicitor for the appellant and was “duly authorized to make this affirmation
on her behalf”. He said that the
defences of self-defence, provocation and diminished responsibility were
available to the appellant on the basis of a very brief summary of her
case. Mr Clarke did not express any
opinion at all as to the appellant’s normality or her fitness to be released on
bail. One notation in the extensive hospital
records exhibited to the affirmation was “no [history] of psychiatric disease”. It was made on 7 November 2003, presumably
within hours of the appellant’s admission to the Ruttonjee Hospital after her
arrest. It was no more than an
historical record, not an expression of opinion, by an unidentified staff
member. There was no evidence of the
circumstances in which the notation came to be entered in the hospital
records. It therefore had no probative
value.
Mr
Clarke’s second affirmation dated 29 October 2004 began with a similar recital
of his authority to act for the appellant.
The affidavit exhibited the admission record page and the last record
page up to 3 July 2004 provided by the Centre.
Mr Clarke said that there was no suggestion in these documents “of any
psychiatric problem”, as indeed was the fact.
Again, Mr Clarke expressed no opinion himself as to the appellant’s
condition.
There
were affidavits/affirmations from the three sureties who knew the
appellant. None of them ventured an
expression of opinion as to the appellant’s mental condition though they did
say that she appeared to be normal.
The
cross-examination of the appellant at the trial was not based so much on the
contents of the affidavits/affirmations of Mr Clarke and the sureties, as there
was little of any consequence in them, as on the submissions or representations
made by Mr Griffiths SC on the bail application. He is recorded as saying in the transcript of
the bail application on 1 November 2004:
“My Lord, as you will have seen
from the affidavit, she has been visited by three of the ladies who are sitting
here in court today and others, and there is no question of any psychiatric
problem. They all say she is perfectly
normal and the woman she was before this, save for some emotional liability…
My Lord,
my instructing solicitor, who is very experienced in these cases, Mr Clarke,
has been to Siu Lam very frequently, has dealt with a lot of cases where they
have been psychiatric problems, is also of the opinion that there is no
psychiatric element present in the case.”
A little
later, Mr Griffiths SC said:
“… she’s visited monthly by a
psychiatrist. There have been no
suggestions from him … that she’s in any need of help.”
Subsequently,
he spoke of :
“heat of the moment diminished
responsibility, not a psychiatric illness because all the medical reports
confirm she has no psychiatric history.
Those who have seen her after the first couple of weeks or so say that
she’s acting, behaving and sounding perfectly normal.”
After
referring to a report of 18 November 2003 in an exhibit to Mr Clarke’s second
affirmation which attributed to the appellant a denial of “suicidal idea”, Mr
Griffiths SC said:
“the psychiatric reports both then
and now indicate someone who is in a stable condition.”
The
basis for the making of these statements to the extent to which they went
beyond the material in the affirmations is by no means clear. They either proceeded from instructions given
to counsel or reflected an advocate’s flourish, or perhaps a combination of the
two. There was no evidence on the
point.
A point
to be noted for later reference is that in the first passage quoted above, Mr
Griffiths SC referred to some “emotional liability”. So his representation that the appellant was
“normal” was subject to that reservation.
(e) Cross-examination of the appellant on the
bail materials
Prosecution
counsel was entitled to cross-examine the appellant to establish that she
allowed herself to be presented in the bail application as a normal person with
no psychiatric problems, save for the reservation already noted, then and even
in November 2003. The trial judge was
right in ruling on more than one occasion that cross-examination to this end
was relevant. So prosecution counsel was
entitled to cross-examine the appellant who was present at the bail hearings,
as he did, to obtain her agreement that (a) Mr Griffiths SC had made the
statements which were attributed to him and have already been related; (b) they
were made on her behalf; and (c) they were, so far as she was aware, true. And, at that time, subject to one
qualification, they were true because Dr Wong’s report of 12 May 2005 was not
then in existence. The one qualification
was whether the claimed memory loss was a psychiatric problem relevant to the
grounds for granting or refusing bail.
On a
related point, Mr McCoy SC submits that prosecuting counsel’s cross-examination
was not a permissible mode of cross-examining a witness on documents created by
a third party, when the cross-examiner is relying on an inconsistent statement
in order to impeach the credit of the witness.
The cross-examination went, however, not merely to credit but also to
diminished responsibility and the claim of memory loss.
Mr McCoy
SC also submits that the prosecution was in error in splitting its case by
seeking to establish what occurred in the bail proceedings in cross-examination
instead of leading evidence on that matter in its case. It is for the prosecution to put its case
fully and fairly before the accused is called upon to make his or her defence,
although there can be departures from this rule to meet the infinite variety of
difficulties that may arise at a criminal trial. Thus the prosecution is required to tender
all available material witnesses and other evidence unless there is some good
reason not to do so. If evidence is
relevant in any way to prove the case for the prosecution, it is the duty of
prosecution to produce it as part of its case
rather than to hold it back and introduce it by means of the
cross-examination of the accused. To
pursue the latter course is to engage in the error of splitting the prosecution
case and to potentially deprive the accused of the opportunity of
cross-examining witnesses who might otherwise be called.
Assuming
that Mr McCoy SC’s submission on this point is well-founded, as we are minded
to think it is, its impact in the circumstances of the present case was of
little significance. If the prosecution
had tendered the record of the bail proceedings as part of its case, the
appellant would have been cross-examined on that record in any event. She would have been confronted with the
transcript of the proceedings and asked whether the statements were made on her
behalf and whether she agreed with them.
And, in considering any question of possible prejudice, the point must
be made that this was not a cross-examination on a statement in a document
created by a third party which came as a surprise to the witness. The cross-examination related to the
transcript of proceedings before a judge at which she was present.
Counsel
for the prosecution by his questions emphasized the point that there was no
mention of amnesia or memory loss in the materials or submissions then
presented to the court. This point was
pursued persistently and vigorously despite the fact that one would ordinarily
expect the appellant’s professional advisers to decide on the materials to be
presented to the court in the bail proceedings.
There
were two passages in the appellant’s cross-examination which exhibit its
character. The first begins with an
answer in which the appellant said that she had mentioned memory gaps to her
three friends, the bail sureties.
Prosecution counsel then asked this question:
“So those three friends of yours
were well aware of the memory gaps and problems with your mental ability to
recall things, well before your bail application in November 2004, is that you
are saying?”
When the
appellant answered by saying:
“I don’t know what they though.”
Prosecuting
counsel then said:
“Well, someone is being misled
here, Mrs Kissel.”
Mr King
SC then made a strong objection to that comment. It was an entirely improper comment, designed
to insinuate to the jury that the appellant and her advisers, or alternatively
the three friends, had misled the court in the bail application. That was precisely what prosecuting counsel
said in the presence of the jury for argument on the objection was heard in the
presence of the jury. Yet despite the objection,
the judge did not correct the comment nor direct the jury to ignore it.
The
second matter relates to the cross-examination of the appellant on Dr Wong’s
opinion and the appellant’s knowledge of the conclusions he had reached with
respect to the three medical conditions which he diagnosed. The point of the cross-examination was to
suggest that her condition, as diagnosed by Dr Wong, should have been disclosed
to the court in the bail application and yet it had not been. Dr Wong’s diagnosis was not known at the time
of the first bail application before Burrell J.
It was known when the bail application came before Lunn J in May
2005. But the focus of attention in the
cross-examination was on the statements made to Burrell J. Yet, over Mr King SC’s objection, the trial
judge permitted prosecution counsel to ask the question of the appellant
whether she agreed that the three psychiatric disorders Dr Wong identified
were:
“in stark contrast to the
observations of Mr John Griffiths, Senior Counsel, during the bail hearing.”
This was
an improper question because, as prosecuting counsel well knew, although Dr
Wong was of the view that the appellant suffered from major depressive disorder
at the time of her husband’s death and probably dissociative amnesia at that
time, there was nothing at the time of the bail application to support the view
that these medical conditions were known to the appellant or anyone else. The expression “in stark contrast” was
designed to emphasize the cross-examiner’s suggestion that there was a failure
to disclose a material matter to Burrell J.
At no time when prosecuting counsel cross-examined on the transcript of
the bail proceedings, did he draw her attention to Mr Griffiths SC’s
qualification concerning “emotional liability”.
The
substance of the cross-examination of the appellant on the hospital and medical
records is related in detail in the Court of Appeal’s judgment. We agree with the Court of Appeal that the
cross-examination was directed to showing that the appellant had not made
complaints of memory loss, suicide attempts and other matters to which she had
deposed, when one would have expected her to do so. This conclusion does not, however, meet the
submission that she was cross-examined, as she was, in an impermissible manner
on records and reports by confronting her with their contents and putting her
in a position where impliedly she was invited to explain the discrepancy
between them and her testimony.
An
instance of an express invitation to explain a discrepancy is to be found in
her cross-examination on her statement, in relation to the November 2003
incident, that she had told Dr Yuen about her memory loss. She had been shown Dr Yuen’s letter of 13 May
2005 in which he makes no reference to her telling him that prosecuting counsel
then asked this question:
“So can you explain why Dr Yuen’s
is saying in here … ‘I know very little about the case and Nancy had never told
me anything relating to the alleged offence?’”
It is
impermissible to ask a witness why someone else makes a statement contradicting
the evidence of the witness.
A witness
should not be asked to explain the reasons why another person contradicts the
testimony of the witness. For one thing
what the witness can say about the other person’s reasons is necessarily a
matter of conjecture or speculation. For
another thing, it is not a question which the witness can readily answer. It is an unfair means of endeavouring to
persuade a witness to change his answer and it may result in the witness giving
the impression that he is evasive. The
technique is a variation of the question which invites a witness to comment on
the truthfulness of another witness. As
to the inadmissibility and impropriety of that technique, see R v Foley; see also North Australian Territory Company v
Goldsborough, Mort and Company (dealing
with cross-examination on statements made by others). Unfortunately, the practice is not uncommon
but the fact that impropriety is common is no reason why it should be
tolerated.
Mr McCoy
SC also complained of the cross-examination of the appellant on Dr Yuen’s report
of 24 May 2005. This report was provided
in relation to the continuation of bail, pursuant to the order made by Burrell
J. The first mention of Dr Yuen in the
cross-examination was made after the appellant had been taxed with not having
mentioned memory loss in the period she was in Siu Lam. Her response was to say:
“I was seen by a psychiatrist in
Siu Lam for many months, and in those sessions we spoke about my memory loss in
great detail and I believe that this psychiatrist was to give a report on my
behalf that I was not suffering from a psychiatric problem in order for my bail
application to be approved he did so.”
She
identified the psychiatrist as Dr Yuen.
Later in the cross-examination, prosecution counsel read to the
appellant a paragraph from Dr Yuen’s report, in which he stated that the
appellant was “mentally stable”, and asked her whether the paragraph was
“accurate, true and correct”. When she
answered “Apart from his opinions, yes”, Mr Chapman then asked “So you disagree
with his opinions”.
If the
prosecution wanted to rely on Dr Yuen’s views as expressed in his report, he
should have been called as a witness. In
that event, he would have been open to cross-examination by the defence on what
he said. As it was, the appellant was
placed in the position of being asked whether she agreed with what Dr Yuen said
in his report as to her mental condition.
It was not legitimate to ask her whether she agreed with his medical
opinion as distinct from any statements of fact which he attributed to
her. She could, of course, be asked
about non-disclosure to Dr Yuen of material facts and about her view of her own
mental health.
The next
aspect of the cross-examination of which Mr McCoy SC complains relates to the
cross-examination of the appellant on her refusal to consent to Dr Yuen giving
a report to the court relating to her mental condition in November 2003. This cross-examination arose out of a letter
dated 13 May 2005 to prosecution counsel in which Dr Yuen demurred to a
proposal that he should make a report or give evidence in the trial. His point was that, if he were to accede to
the proposal, he would be placed in the position of being an expert witness as
distinct from a clinician treating his patient.
After pointing out that he did not know what opinion he would have
because the appellant “had never told me anything about the alleged offence”,
he continued:
“There is a possibility that my
opinion or what I would say in court would affect her mental wellbeing. As a clinician this is something which I
cannot do, for I cannot cause harm to my patient.”
He said,
however, that if the appellant would give her consent, he would be able to
respond despite the possible conflict.
The
appellant’s solicitors then communicated her refusal to consent. Despite Mr King’s objections on the ground
that the prejudicial effect of the line of questioning greatly outweighed any
probative value, prosecution counsel was permitted to cross-examine the
appellant on her refusal to consent. He
suggested that the reason why she would not consent was that she knew that Dr
Yuen would not support her claim of memory loss and that he would say that she
did not suffer from any relevant psychiatric problem. Although the appellant denied this suggestion
and offered another explanation, namely that Dr Yuen was a reluctant witness,
the cross-examiner persisted with his suggestion. His persistence opened up the possibility
that the jury would speculate as to the reason why the appellant was
withholding her consent, particularly if regard was had to the further
suggestion, put in cross-examination, that Dr Yuen could give the best evidence
of her condition.
The
proposition that, generally speaking, a jury should not be invited to speculate
about the reason for not calling a witness, subject to those cases in which an
inference can be drawn, is now well accepted: see HKSAR v Lo Wai Ming; Dyers v The Queen; R v Gallagher; R v Couzens;
R v Wilmot. The circumstances of
this case, however, are of a different order from speculation about the reasons
for not calling a witness. But similar
considerations, albeit less serious, apply here. Why the appellant refused her consent to Dr
Yuen making a report or giving evidence was a relatively minor aspect of the
case and it is surprising that prosecution counsel pursued it at such
length. It may well have induced the
jury to think that the appellant was standing in the way of the court obtaining
the best available evidence.
The
continuing assumption, which was central to the cross-examination of the
appellant, was that there was an inconsistency between memory loss and the
non-existence of psychiatric problems.
Even if there was such an inconsistency, it does not follow that there
was an inconsistency between memory loss and the non-existence of psychiatric
problems which were relevant to the grant or refusal of bail. Yet many of the cross-examiner’s questions
were premised on that inconsistency and on the single statement made by Mr
Griffiths SC that she was “normal” in November 2003. His reservation of “emotional liability” did
not feature in the cross-examination.
The
persistent and vigorous cross-examination of the appellant was carried to such
lengths as to generate a real risk of prejudicing unfairly the appellant in the
eyes of the jury. Prosecuting counsel
seems to have been overly zealous and not sufficiently mindful of the
prosecutor’s duty to conduct the prosecution case fairly as well as fully. True it is that what occurred was in a
context where diminished responsibility was a defence. Although it was abandoned after the close of
the cross-examination, the effect of the cross-examination on the matters
already discussed lived on. The way in
which cross-examination of the appellant on these matters was conducted put her
in a difficult position and may well have helped to create an impression that
her answers were evasive. In this
respect, the cross-examiner, by impermissible means, may well have contributed
to an adverse assessment of her credibility.
It is
important therefore to ascertain what was said about these matters in the
closing addresses and the trial judge’s summing-up. Surprisingly, prosecution counsel simply
said:
“In November 2004 – and you’ll
remember questions on this topic – in her application for bail, there was no
mention or suggestion of significant mental or psychiatric problems, no
confirmation or suggestion of documented suicidal history. Her claim of loss of memory before you,
members of the jury, are equally untrue.”
Defence
counsel said:
“Now, you’ll remember Mr Chapman
cross-examined Mrs Kissel on a report of a doctor when he was dealing with the
– I think at this time he was dealing with her bail, and he put to her that the
doctor found she had three psychiatric conditions, one of which was
dissociative amnesia, difficulty in remembering. And then we had Dr Desmond Fung who came
along and he told you that, as an expert, that he was familiar with
dissociative amnesia, and I took him to the passage in the defence exhibits
that said what – explained what dissociative amnesia is about. It is a condition that exists, and people who
face horrific, traumatic situations do lose their memory and that memory comes
back, bit by bit, on occasions, as time goes on.”
The
following passage is recorded in the learned Judge’s summing-up:
“The defendant said that after her
arrest, she was held in custody in Siu Lam Psychiatric Centre until early
November 2004. While she was there, she
came to realize that she had significant gaps in her memory. In particular, she did not have a lot of
memory of the weekend of 2 November 2003.
When asked if those memory problems were still with her in November
2004, she said that it was still with her today. The defendant accepted that she had made an
application for bail pending trial on 1 November 2004 and that she was
represented by Mr John Griffiths of Senior Counsel, whom she accepted had said,
on behalf of her three prospective sureties, that they said, in respect of the
defendant, ‘there is no question of any psychiatric problem’; they all say,
‘she is perfectly normal and the woman that she was, save for some emotional
debility’.”
Although
those passages may indicate that, by the end of the trial, impermissible
aspects of the appellant’s cross-examination were considered to be no longer of
central importance, they were nevertheless of relevance to the jury’s
assessment of the appellant’s credibility and her credibility was a central
issue in the case. The cumulative effect
of the impermissible aspects of the cross-examination to which we have referred
were prejudicial to the appellant. They
may well have contributed significantly to an adverse assessment by the jury of
her credibility, thereby resulting in an unfair trial. There is no logical or sound basis for
concluding that the errors and the unfairness were not material to the outcome
of the trial.
Therefore
this ground of appeal is made out.
Ground
2: Hearsay
The next
ground of appeal involves the appellant’s complaint that the Judge wrongly
permitted two witnesses to testify that Robert Kissel had told each of them
that he suspected the appellant of poisoning his whisky and of trying to kill
him. Such evidence was hearsay and
inadmissible as to the truth of the deceased’s assertions. Moreover, the appellant submits, the fact
that the deceased had made such assertions was not admissible for any other
purpose, not being relevant to any matter in issue. Even if the fact that he had made such
assertions might be in any sense relevant, it was incumbent on the Judge, so it
was argued, to have excluded the evidence on the basis that its prejudicial
effect far outweighed any probative value it might possess.
The
evidence objected to
The
first witness concerned was Ms O’Shea who was described as the appellant’s best
friend and who became Robert Kissel’s confidante in respect of his marital
relationship. The passage in her
evidence which is the subject of complaint runs as follows:
“Q. Did you hear anything about web sites from Mr Robert Kissel?
A. Yes, I did.
I heard probably in August, late August, early September.
Q. 2003?
A. 2003.
Q. So what about web sites?
A. He called me one evening at 6 o’clock and I
had just gotten home from work and he said, ‘Bryna, get this’, I said, ‘What’s
going on?’ He goes, ‘I found a web site
that Nancy went to’ and I was like, ‘Yes.’
And he goes, ‘It was about’, and I didn’t remember until after his
funeral, what the actual subject of the web site was. But he had told me that it was a web site
about, something about drugs, or death, or something dark, that’s all I could
remember. And I said, you know, ‘You are
kidding me?’ and he said, ‘No’, he said, ‘Do you think she is trying to kill
me?’ And I said, ‘Rob’, you know, I
laughed, I said, ‘If she is really -- if she is trying to kill you, put me in
your will’ and we laughed. And he said,
‘Seriously, Bryna, if anything happens to me, make sure my kids are taken care
of. Make sure the right thing is done
with my children.’ And we talked, you
know, and I got off the phone and I went into the kitchen and I told my husband
the conversation we had and he just thought Rob was imagining things, he said,
‘You know, that has gone on a long time.’”
The
other witness was Mr Shea, the private detective hired by the deceased to
conduct surveillance on the appellant regarding her suspected extra-marital
affair in Vermont. The passages in his
evidence objected to are as follows:
“A. Shortly after Mr Kissel’s return to Hong Kong, he called and he
expressed concern, he was quite upset, he expressed concern that he wife was
trying to kill him.
Q. In what way?
Q. He said that he believed that she was trying
[to] poison him and he thought that it’s...
Q. Just pause there. Did he describe how?
A. Yes.
Q. Just describe how?
A. Mr Kissel said that when he would return
from work in the evening there was a decanter of scotch in his living room or
den, and that he would come home and have a sip of scotch and he would feel
very -- the scotch tasted -- did not taste normal to him, but he...
Q. Just pause there, thank you. And this was underpinning his concern.
A. Well, he also said that the effects of the
scotch were quite remarkable, it would make him feel very woozy, very
disoriented.
Q. Pause there.
So what did you advise him to do, yourself?
COURT: Before you get to that, Mr Chapman. Members of the jury, this is another area
where I’m going to repeat the direction I’ve given you. The oral assertions made by the deceased to
Mr Shea as to this matter, that is to say, that he believed his wife was trying
to poison him, perhaps to kill him, and that this was being done through the
whiskey that he drank from his decanter, that is not evidence of the truth of
those assertions.
However,
it is evidence that you can take into account in respect of his state of mind
in respect of the state of the marriage; that is to say, what he believed the
state of the marriage to be. Thank you.
Q. So, Mr Shea, having heard this, what did you
advise Mr Robert Kissel, if anything?
A. I was concerned at that point that Mr
Kissel’s life was in danger and I advised him to go to the police, contact his
attorney, have his blood tested and have his urine tested and to get the
decanter of scotch and have that tested.”
Later,
referring to an e-mail Mr Shea had received from the deceased regarding the
advice the former had given as to having the relevant tests done, Mr Shea’s
evidence runs as follows:
“A. Robert Kissel had my work number, my cell number and my home number,
because I thought that it was necessary in this case.
Q. In reply, [an] email reading, ‘I got it
thanks, been crazy busy, I’m going to send it out today’, what does ‘send it
out today’ refer to?
A. I thought that Mr Kissel would be sending
out the samples to be tested.
Q. Then, ‘kind of in denial too.’
A. What did you understand Robert Kissel to
mean by that?
A. I think from the first day that Mr Kissel
indicated to me that he thought that his wife was attempting to kill him, that
he just couldn’t believe it was going to happen.”
It is
immediately apparent that the contested evidence carried a high risk, if
misused, of grave prejudice to the appellant.
It consisted of two witnesses stating that they had heard Robert Kissel,
the murder victim, say that he suspected his wife, the alleged murderer, of
poisoning his whisky and trying to kill him some six or eight weeks before he met
his death.
The
issues between the parties
It was
not in dispute that reports of communications with the deceased were hearsay
and were not admissible as evidence of the facts asserted by the deceased. Nor was it in dispute that evidence may be
given of an out-of-court statement where such evidence is adduced to establish,
not the truth of the facts stated, but the fact that the statement was
made. It was on this basis, and not
testimonially, that the prosecution sought to adduce such evidence.
However,
as everyone also accepted, while evidence of an out-of-court statement may be
admissible as original (and not hearsay) evidence of the state of mind of the
maker, its admissibility depends on whether such state of mind is relevant
either because it is itself a fact in issue or because it is relevant to
establishing a fact in issue. Moreover,
it is clear that the court should exercise its discretion to exclude such
evidence if its prejudicial effect is out of proportion with its probative
value.
The controversy,
then as now, was as to whether the Judge should have treated the requirements
of relevance and the discretionary balance as satisfied in relation to the
evidence of suspected poisoning. The
decision to admit that evidence falls to be considered at three stages: at the
stage of the pre-trial admissibility ruling; at the trial and in the Court of
Appeal.
The
Judge’s pre-trial ruling
At the
pre-trial hearing, the defence objected to the admissibility of evidence
prospectively to be given by various witnesses, including Ms O’Shea and Mr
Shea, regarding a variety of matters communicated to them by the deceased,
including the evidence of suspected poisoning.
The
Judge dealt with those objections in a detailed ruling given on 3 June
2005. He had before him depositions,
witness statements and other materials indicating in detail what the evidence
likely to be adduced at the trial was, and the nature of the cases likely to be
developed on both sides. His principal
task at that hearing was to rule on the relevance and admissibility of such
prospective evidence.
It was
apparent that the prosecution’s case was that the appellant had committed a
pre-meditated murder, drugging the deceased with a milkshake and then killing
him with fatal blows to the head when he was incapable of defending himself.
As to
the case likely to be made on behalf of the appellant, the Judge had a detailed
psychiatric report prepared by Dr Wong for the defence. It included passages recording the account
given to him by the appellant of the events of 2 November 2003. It revealed that the appellant was alleging
that the deceased had on that day told her that he was divorcing her and would
be taking the children away; that he had struck her and had forcible sexual
intercourse with her; that he had hit her with a baseball bat and was
threatening to kill her; and that it was in such circumstances that she had
struck him with the ornament. The Judge
naturally concluded that the defences of self-defence and provocation were
likely to be in issue.
The
Judge ruled admissible evidence of a series of statements, oral and written,
made by the deceased (including the evidence now complained of) which, in his
view, showed the deceased’s state of mind as to the condition of the marriage. He did so principally on the basis that such
evidence was relevant to the defences of self-defence and provocation. His Lordship stated:
“I turn then to my
conclusions. Clearly, the first question
to pose is to what fact in issue, or relevant to a fact in issue, is the
impugned evidence relevant and probative.
The obvious answer is to the issue of self-defence and provocation. In that context, the following issues of the
deceased’s state of mind arise for consideration in respect of relevance.
Firstly,
the belief in the deceased that his wife had had an affair with Michael and
that it was ongoing in that she was in constant contact with him by
telephone. Secondly, belief in the
deceased that the defendant was poisoning his drinks; and thirdly, his
intention in respect of divorce and the terms to be advanced, in particular
with regard to care and control, and access and the financial position.”
A
secondary basis upon which the Judge ruled the evidence admissible was that it
was relevant “as part of a continual background of history”, taking that phrase
from the judgments in R v Phillips and R
v Pettman, to which we will return.
The
general evidence as to what the deceased believed to be the state of the
marriage allowed in by the Judge on the two bases mentioned above came from a
variety of sources. It included
evidence of his having installed spyware on the appellant’s computer; of his
having obtained a list of marriage counsellors from his sister Ms Jane Clayton;
of his hiring Mr Shea to conduct surveillance on his wife; of his discovering
her affair with Mr del Priore and her continued contact with him by telephone
after her return to Hong Kong; of his visiting Ms Sharon Ser for legal advice
on family law matters; of the couple’s attendance at marriage counselling
sessions with Ms Halloran; and of his taking advice on divorce Mr Egerton,
another family lawyer, shortly before his death.
Issues
to which the impugned evidence was relevant
Leaving
aside for the moment the evidence of suspected poisoning, the Judge was plainly
entitled to regard aspects of the aforesaid evidence as immediately relevant to
the issues of self-defence and provocation.
As he pointed out, prospective witnesses were expected to give evidence
of the deceased’s “...intention to discuss the matter with his wife on Sunday
[2 November], to seek access to the children at weekends only, the defendant to
have care and control of them, and as to the financial terms of divorce.” Such evidence was clearly relevant to
possible motives for the killing and directly relevant to the circumstances of
the killing in the light of the appellant’s statement to Dr Wong that the
alleged fight with the deceased occurred in the context of his threatening to
take the children away from her.
Again
leaving aside the evidence complained of on this appeal, the Judge properly
regarded the evidence of how the marriage had deteriorated and the deceased’s
perception thereof to be relevant to assessing the competing cases being
advanced as to the nature of the couple’s relationship. The prosecution’s case was that the deceased
was a stable, caring husband who had made genuine attempts to save the marriage
and was seeking a civilized divorce, while the defence cast him in the role of
a frequently intoxicated and physically and sexually abusive husband. It was necessary for the jury to examine
these opposing versions of the couple’s relationship as relevant background to
assessing the competing cases as to how the killing had occurred. Referring to certain e-mails allowed in as
part of the general evidence on the state of the marriage, the Judge put this
as follows:
“It is part of the ‘mosaic’ of
evidence that will enable the jury to understand the background of the state of
mind of the deceased, his belief in the state of the marriage. Also, it enables the jury to put into context
the assertions he made in the days before 2 November 2003 of his intentions in
respect of the divorce and the terms thereof.”
However,
the evidence of Robert Kissel voicing his suspicion that the appellant had
poisoned his whisky and was trying to kill him, stands on a markedly different
footing. The Judge ruled it in as
relevant to the issues of self-defence and provocation. He apparently accepted the prosecution’s
submission that it was evidence relevant to rebutting “allegations or evidence
that the deceased was the aggressor in the relationship and in the apartment on
the evening of 2 November 2003”.
We are
unable to accept the correctness of that view.
For such evidence to have the relevance suggested, it must be logically
probative of some fact in issue relating to the defences of self-defence or
provocation. It must tend to make it
more or less probable that in killing Robert Kissel on 2 November, the
appellant was acting in self-defence or under provocation. We are unable to see any such
connection. The deceased’s reported
belief throws no light on the circumstances in which the appellant killed him
and, in particular, as to whether she was acting in self-defence or under
provocation, questions dependent on the appellant’s, and not the deceased’s,
mental state at the time. His suspicion
about being poisoned makes it neither more nor less probable that the defences
avail the appellant. Any purported
connection is all the more difficult to make given that the statements in
question were made to Ms O’Shea in August or early September 2003 and to Mr
Shea in mid-September 2003, some six or eight weeks before the fatal events of
2 November 2003.
What
then of relevance on the secondary basis accepted by the Judge? Could admission of the challenged evidence be
justified on the basis that it was relevant “as part of a continual background
of history” leading up to the killing?
It will be recalled that in support of this basis for admitting the
evidence the Judge referred to the decisions in R v Phillips and R v Pettman. Before answering the questions just posed,
certain potential misconceptions based on those decisions ought to be
dispelled.
In his
ruling, the Judge cited the following passage from the judgment of Dyson LJ in
R v Phillips :
“We would add that we think that
evidence about the state of the marriage was admissible in any event as what
was described in Pettman as ‘part of a continual background of history’. In a
case where one spouse is charged with the murder of the other, it will often be
relevant for the jury to know about the matrimonial relationship in order to
make a properly informed assessment of the entire evidence. In our view, this
would have been a sufficient basis, on its own, to admit the evidence in the
present case. If the jury had not been furnished with background material about
the marriage, they would have been perplexed.”
It is
essential that the apparently wide words in the passage cited as to the
potential relevance of the matrimonial relationship in cases “where one spouse
is charged with the murder of the other” be placed in their proper
context. Phillips was a case involving a
husband charged with the murder of his wife where a challenge was made to the
admission of evidence regarding remarks the deceased had made about her husband
and their marriage, in particular about death threats he had made against the
deceased. His Lordship was referring to
the relevance of such evidence “in the present case” and emphasised that:
“The essential question in every
case is whether the evidence passes the test of relevance. If it is relevant, then it is admissible
unless, in the exercise of its discretion, the court decides that fairness
requires it to be excluded.”
The
court upheld the admissibility of the contested evidence as follows:
“The evidence that his marriage
had broken up was in our view admissible both to rebut his claim that it was a
happy marriage, and to show that he had a motive (albeit an irrational motive)
for killing her. The reason why he claimed at interview that the marriage was
happy was to show that he had no motive for killing her, and that he therefore
did not kill her. The link between motive and his claim was clear.”
In R v
Frawley, the New South Wales Court of
Appeal stressed the essential importance of establishing the relevance of the
evidence sought to be called and discouraged use of the label “relationship
evidence”. Gleeson CJ noted that in Wilson v R, Menzies J had recognized that in some cases,
it may be highly relevant to show that the alleged offence had occurred “in the
setting of a tense and bitter relationship between a man and a woman who were
husband and wife” but pointed out that Barwick CJ had observed in the same
case that the fundamental rule regarding
the admissibility of evidence is that it be relevant. As to so-called “relationship evidence”, his
Honour stated:
“One of the difficulties affecting
consideration of relationship evidence is that the concept of relationship is
vague. In a particular case, such as the present, it may be necessary to
identify with more precision what is in question. Frequent and serious quarrelling between a
couple, of a kind that goes beyond what Menzies J referred to in Wilson as
ordinary difficulties and disagreements, may be relevant to whether one
intended to kill the other, or to some other issue in a criminal trial. That is
one kind of relationship evidence. What, however, of evidence of the state of
mind of one party to a relationship? If
one party to a relationship is accused of murdering the other, admissible
evidence of the accused's state of mind may well be relevant. It is less likely
that evidence of the victim's state of mind will be relevant, although, as the
authorities cited above show, it may be relevant, depending on the issues in
the case. Again, evidence that one party
says things derogatory of the other party, in the other party's absence, is a
form of relationship evidence. Whether or not it is admissible may depend upon
the circumstances, and it is not particularly helpful to begin with an
assumption that, in a case of homicide involving a man and a woman, evidence of
their relationship is admissible. In
this case I find it preferable to avoid the label ‘relationship evidence’ and
to seek to describe more accurately and more particularly the subject matter.”
It would
of course be absurd to suggest that whenever one is concerned with an alleged
murder of one spouse by another, all manner of hearsay and other items of
inadmissible evidence become transformed into admissible evidence simply on the
basis that the jury should be told about the matrimonial relationship in
general. The basic principles requiring
the evidence to be of a fact in issue or relevant to establishing a fact in
issue and to be subject to the exclusionary discretion continue to govern.
The same
comments may be made in respect of R v Pettman. There, the prosecution’s case was that the
appellant was part of a group concerned in the planning and execution of a
series of armed robberies. His case was
a complete denial of any involvement and reliance on an alibi. The court allowed in evidence that the
appellant and a co-accused had used a car on an earlier occasion during which
an offence not charged may have been committed because his use of the car
provided a vital link in circumstantial evidence connecting the accused with
the charged offences. Purchas LJ giving
the Judgment of the Court, upheld the admissibility of the evidence stating:
“... where it is necessary to
place before the jury evidence of part of a continual background of history
relevant to the offence charged in the indictment and without the totality of
which the account placed before the jury would be incomplete or
incomprehensible, then the fact that the whole account involves including
evidence establishing the commission of an offence with which the accused is
not charged is not of itself a ground for excluding the evidence. ... That this
evidence had a high probative value cannot be disputed, because it connected
the appellant with the car EGP 854J and the stolen chequebook, both of which
were used on other occasions in furtherance of the alleged conspiracies to
which we have already referred.”
The
evidence was therefore directly relevant to a fact in issue, namely, whether
the accused was at the scene, and prevented the other items of evidence from
being “incomplete or incomprehensible” on the specific facts of the case. The decision is not authority for any
separate or special principle of admissibility. Neither Phillips nor Pettman provide any
legal basis for admitting the contested evidence in the present case.
Evidence
of the state of the marriage and the discretion to exclude
We
return then to the question being discussed.
Having rejected the relevance of the contested evidence to the issues of
self-defence and provocation, the question is whether the evidence of Ms O’Shea
and Mr Shea as to the deceased’s belief that the appellant had poisoned his
whisky and was trying to kill him relevant “as part of a continual background
of history”? Taking “relevance” in a
broad sense, the answer must be “Yes”.
If a husband thinks his wife is trying to poison and kill him then in a
literal sense, that belief is relevant evidence that he must regard the
marriage as having deteriorated to a most lamentable state.
But to
characterise the relevance of the contested evidence as simply evidence of
Robert Kissel’s state of mind regarding the condition of his marriage is
greatly to understate its impact. The
testimony of two witnesses that the murder victim had told them that he
suspected his wife, the alleged murderer, of poisoning his whisky and trying to
kill him obviously carried an extremely prejudicial effect. The Judge had ruled admissible copious
evidence, referred to above, which was logically probative of the deceased’s
perception of the state of the marriage and which would amply enable the jury
to assess the contrasting ways in which each side was depicting the couple’s
relationship in the months preceding his death.
There was no need for them to receive the highly prejudicial evidence of
suspected poisoning for that purpose. It
added nothing of significance to the large corpus of evidence available on that
score.
In his
ruling, the Judge did not focus specifically on the discretionary balance in
relation to the evidence of suspected poisoning. He dealt with the probative value and
prejudicial effect of the evidence then being challenged in omnibus terms,
stating at the beginning of his ruling that where evidence was ruled
admissible, he had considered and decided against exercising his discretion to
exclude the same. His Lordship was no
doubt proceeding on the basis that the presently impugned evidence was relevant
and probative in relation to the defences of self-defence and provocation, a
view which we have held to be erroneous.
The
Judge’s decision not to exclude the relevant evidence as being
disproportionately prejudicial involved the exercise of a judicial discretion
which, as is well-established, will only be interfered with on appeal in
limited circumstances. The principles
are clearly stated in the joint judgment of Dixon, Evatt and McTiernan JJ in
House v The King as follows:
“The manner in which an appeal
against an exercise of discretion should be determined is governed by
established principles. It is not enough
that the judges composing the appellate court consider that, if they had been
in the position of the primary judge, they would have taken a different
course. It must appear that some error
has been made in exercising the discretion.
If the judge acts upon a wrong principle, if he allows extraneous or irrelevant
matters to guide or affect him, if he mistakes the facts, if he does not take
into account some material consideration, then his determination should be
reviewed and the appellate court may exercise its own discretion in
substitution for his if it has the materials for doing so. It may not appear how the primary judge has
reached the result embodied in his order, but, if upon the facts it is
unreasonable or plainly unjust, the appellate court may infer that in some way
there has been a failure properly to exercise the discretion which the law
reposes in the court of first instance.
In such a case, although the nature of the error may not be
discoverable, the exercise of the discretion is reviewed on the ground that a
substantial wrong has in fact occurred.”
Applying
those principles, interference with the Judge’s exercise of discretion in
favour of admitting the evidence is justified in the present case. The balance he struck was founded on an
erroneous view as to the probative significance of the impugned evidence,
treating it as relevant to the issues of self-defence and provocation. In exercising our discretion in substitution,
we hold that the prejudicial effect of the challenged evidence far outweighs its
marginal relevance towards establishing the deceased’s state of mind regarding
the condition of the marriage – such being the only other head of relevance
postulated by the Judge (and, as indicated below, put to the jury). The appellant has therefore succeeded in
showing that a material error was made in the admission of such evidence at her
trial.
Treatment
of the evidence at the trial
It is
sometimes possible for such an error to be corrected by appropriate directions
to the jury. It is therefore necessary
to consider how the evidence, once admitted, was dealt with at the trial.
The
Judge’s approach to its relevance in his summing-up did not fully reflect the
views he had expressed in his ruling. In
particular, he did not suggest to the jury that Robert Kissel’s reported
statements might be relevant to the issues of self-defence or provocation even
though that had been the principal reason for his pre-trial ruling in favour of
admissibility. In view of our decision
that the evidence lacked such relevance, the course taken by the Judge is
perhaps not surprising.
The
Judge repeatedly reminded the jury that evidence of what Robert Kissel had told
various witnesses, including Ms O’Shea and Mr Shea, was not evidence of the
truth of the deceased’s assertions.
However, his directions as to the use that the jury could properly make
of the evidence were very brief. Indeed,
his directions in relation to Ms O’Shea’s evidence were confined to her
testimony that the deceased had reported discovering visits by the appellant to
internet sites “about drugs, or death, or something dark”. He gave them no instructions regarding her
evidence that the deceased had asked whether she thought the appellant was
trying to kill him or, that after laughing off that suggestion, Robert Kissel
had added: “Seriously, Bryna, if anything happens to me, make sure my kids are
taken care of. Make sure the right thing
is done with my children.”
In
relation to Mr Shea’s evidence, the Judge directed the jury in the following
terms:
“...Robert Kissel's assertions to
Frank Shea after his return to Hong Kong in late August 2003, assertions made
in emails that we have seen in mid-September, that his wife was poisoning his
whisky decanter is not evidence of the truth of what was asserted. There is no evidence whatsoever of that. It
is admissible in evidence only in respect of his belief of the state of the
marriage; that is to say, what steps he took in relation to the marriage,
believing that this be the case - or at least asserting that he believed this
to be the case. Whilst the defendant
admitted in testimony that in Hong Kong, as well as in Vermont, she had crushed
a pill and put the contents into a whisky bottle, she said that in Hong Kong in
contrast to Vermont, she discovered that the crushed pill was visible in the
bottle, she removed it, threw the contents away and put a new bottle back. So there is no evidence of poisoning of
whiskey in Hong Kong.”
Returning
to Mr Shea’s evidence, his Lordship stated:
“Shortly after Robert Kissel’s
return to Hong Kong on 23 August 2003, Frank Shea said that he received a
telephone call in which Robert Kissel expressed concern that his wife was
trying to kill him, that is, poison him.
In particular, he asserted that the contents of a decanter of scotch
that he kept at his home did not have the normal effects upon him. The effects were remarkable, making him woozy
and disorientated. Mr Shea advised
Robert Kissel to go to the police, his lawyers, and to have tests done of his
blood, urine, and the contents of the decanter.
.... I
have given you directions earlier about the fact that none of these assertions
are evidence of the truth of the facts asserted. They are merely evidence that goes to a
consideration of Robert Kissel’s belief of the state of his marriage.”
The
Judge’s direction to the jury as to the relevance of the impugned evidence was
therefore confined to telling them that they could regard it as relevant to the
deceased’s belief as to the state of the marriage and the steps he took in
relation to the marriage in that belief.
In other words, his direction attributed a probative value which we have
described as being of marginal significance in the context of ample
non-prejudicial evidence available concerning the state of the marriage. The Judge does not, however, appear to have
considered the effect of so confining the relevance of the evidence on the
exercise his discretion to admit the same.
More
damagingly, the material error was compounded at the trial by the prosecution’s
closing speech. Counsel for the
prosecution (not Mr Zervos) stated:
“Now, you’ll also recall that
about this time an exchange occurred between Bryna O'Shea and Robert Kissel and
I think she dated it late August/early September. She couldn’t be sure. And in that conversation, Bryna, when she’d
heard certain observations by Robert Kissel about his concerns said,
half-jokingly to him, ‘If she’s trying to kill you, put me in your will.’ You’ll remember that evidence, which was read
to you. And half-jokingly, she said, but
how prophetic it turned out to be.
The
evidence of Bryna O'Shea, these e-mails of Frank Shea, and Frank Shea’s
evidence itself, demonstrates that by September, Nancy Kissel had begun to
employ drugs, it appears, against her husband and Robert Kissel was nervous and
apprehensive, although, because of this 180 degree turn that we’ve just seen
referred to, he would later enter a phase of denial and inaction over his
concerns and that feeling of guilt over his suspicions of his wife, Nancy
Kissel, would ultimately mean he took no steps as recommended by Frank Shea. And those failures, that inaction, it
appears, would contribute to or ultimately cost him his life.” (Italics
supplied)
In our
view, those passages constituted a wholly impermissible invitation to the jury
to treat the hearsay statements of the deceased as evidence of the truth of the
facts asserted by him. In inviting them
to consider “how prophetic” his stated suspicion that the appellant was trying
to kill him was, the prosecution was suggesting that his suspicion was
well-founded. More importantly, the
prosecution expressly invited the jury to treat the evidence of Ms O’Shea and
Mr Shea – which was plainly hearsay evidence of what the deceased had told
them – as demonstrating that by
September, the appellant had in fact been poisoning her husband. Counsel went so far as to suggest to the jury
that there was a causal link between such earlier poisoning and Robert Kissel
ultimately losing his life because of his inaction based on feelings of guilt
about having harboured suspicions concerning his wife’s intentions.
That
submission was grossly prejudicial and quite improper. It went far beyond the prosecution’s avowed
basis for adducing the evidence and overstepped the Judge’s ruling as to the
limited purposes for which it would be allowed in. It contradicted the express directions
repeatedly given by the Judge to the jury.
Unfortunately, the Judge did not intervene to counteract that
submission. He did not instruct the jury
to reject the prosecution’s invitation to make such grossly impermissible use
of the evidence. He confined himself to
repeating his general injunction against treating the hearsay evidence of those
two witnesses as evidence of the truth of the deceased’s assertions. In the context, such a direction was
insufficient. Mr Zervos fairly accepted
that the prosecution’s remarks set out above were inappropriate although he
endeavoured to argue that the warnings against treating hearsay as evidence of
the facts asserted were sufficient. We
do not agree.
The
Court of Appeal’s rescue attempt
The
Court of Appeal criticised the appellant’s argument on the hearsay ground on
the basis that it was developed spasmodically in the course of the hearing and
difficult to follow, requiring that Court to make substantial researches of its
own. No doubt in part because leave was
given to argue the hearsay ground only in relation to the evidence of suspected
poisoning, the argument before this Court was evidently better focused and
defined.
Having
reviewed a number of authorities, the Court of Appeal summarised the applicable
principles, correctly emphasising the fundamental importance of relevance as
the basis of admissibility and rejecting “relationship evidence” as a separate
basis.
Leaving
the question of the deceased’s belief that he was being poisoned to be dealt
with later in their judgment, their Lordships analysed the relevance of the
general body of evidence concerning statements made by the deceased as
contended for by the prosecution. They
held that the Judge was fully entitled to regard such evidence as
relevant. It tended to indicate:
“...the confusion into which the
deceased was apparently thrown in the summer of 2003 by the fluctuating
attitude of the appellant, as he, the deceased, perceived it; the deceased’s
frustration and disappointment at finding, because of his discovery of the
second mobile telephone, that his hopes of reconciliation were finally dashed;
his stated intention not to seek custody of the children and to divide the
assets of the marriage equally...”
Such
evidence, their Lordships held, showed:
“ ... a non-vindictive attitude
that sat contrary to the appellant’s description of the respective attitudes of
the parties to this marriage; and [demonstrated] the relevance of these matters
to the defences of self-defence and provocation that were presaged by Dr Wong’s
detailed recounting of the appellant’s case and by cross-examination on her
behalf.”
The
prosecution was contending that this was a case of murder by “a premeditated
act, with no history of provocation, by a woman obsessed with another man,
irritated by the unwelcome smothering attentions of her husband and who, unlike
her husband, had no true interest in saving the marriage”. The appellant’s case, by contrast, was that
it was a killing in self-defence by a:
“... scared, repressed woman
driven to thoughts of suicide by the conduct of a man of drunken, drugged,
sexually abusive and otherwise violent disposition given to taking pills, and
who ultimately, on 2 November, beat her yet again, but this time with a threat
to kill her, after presenting her with the fait accompli of having instituted
divorce proceedings, including a threat to take her children from her.”
Thus,
their Lordships held that the general body of evidence as to the deceased’s
state of mind in relation to the marriage was plainly relevant:
“It appears to us obvious that
evidence showing a state of mind at odds with what the appellant testified had
been happening at the time of particular utterances or writings, was clearly
evidence relevant to rebut the appellant’s defence.”
This
conclusion was buttressed by five examples showing the relevance of such
evidence to issues arising at the trial.
As
previously indicated, we are in essential agreement with the Court of Appeal as
to the relevance and admissibility of the general evidence concerning Robert
Kissel’s perception of the state of his marriage as necessary background
against which the jury had to assess the competing cases being advanced. But, as we state above, the evidence
concerning the deceased’s statements that he suspected the appellant of
poisoning and trying to kill him stands on a different footing. It adds nothing of any significance to the
available evidence of the couple’s marital relationship and is highly
prejudicial.
Dealing
specifically with that evidence, the Court of Appeal propounded a theory of
relevance which (although advanced by the prosecution in its skeleton argument
for the pre-trial hearing) was not mentioned at any point by the Judge. The Court of Appeal noted that “a feature of
this case that might be said to stand against the prosecution’s case of
premeditated murder” involved the way in which the appellant had allegedly
drugged the deceased as part of her plan of murder. This posed a “conundrum” for any fact-finder
since it might be thought unlikely that the appellant would have adopted the
apparently clumsy and risky expedient of delivering a drugged milkshake to
their neighbour Mr Tanzer at the same time.
The
Court of Appeal decided that the impugned evidence was relevant and admissible
as the means of resolving that conundrum:
“The full context provides the
only reasonably understandable explanation for the method chosen to deliver the
drugs. This was that, on more than one
occasion, the appellant administered drugs to the deceased’s drink, and that
the second occasion occurred in late August 2003 when she added a drug to his
whisky but then threw it out because its presence was discernible to the
eye. That is common ground. From the communications between the deceased
and Mr Shea, we know that the deceased suspected, not only from website
searches by the appellant of which he was aware, but also because of the taste
and effect of whisky that he had consumed, that his wife was trying to poison
him. His concern was so deeply nurtured
that he planned to submit samples of his hair for testing. By that stage, he had known for some time of
his wife’s affair in respect of which the appellant had said in her diary entry
dated 21 August 2007 that ‘he [the deceased] will never trust me again.’
In these
circumstances, there is one irresistible inference which may safely be drawn,
which is that by September 2003 and thereafter the deceased must have taken the
greatest care to avoid drinks offered to him by the appellant.”
The
stage reached at this point in the Court of Appeal’s reasoning was that the
impugned evidence supported an irresistible inference that the deceased would
have been wary of accepting any drink prepared by the appellant for fear of her
trying to poison him. That is disputed
by the defence who point out that there was evidence from one of the couple’s
domestic helpers that the appellant had continued to make her husband’s coffee
in September 2003. However, leaving that
dispute aside, a further step in the Court of Appeal’s reasoning was in any
event required if admission of the challenged evidence was to be
justified. It was not enough to show
that the deceased was likely to be wary of drinks proffered by the appellant. There had additionally to be a proper basis
for thinking that the appellant knew of such wariness on his part so as to
explain her using the milkshakes as camouflage to overcome his anticipated
resistance.
Pointing
to the fact that the appellant had accepted in evidence that there was an
extreme level of mistrust between herself and the deceased, the Court of Appeal
sought to bridge the gap in its reasoning by asserting that it could be filled as a matter of
obvious inference:
“It is but a short and logical
step from there to infer that the appellant was well aware of the deceased’s
wariness in relation to taking drink from her.
Whilst it has been conceded by Mr McCoy that evidence of her knowledge
of his suspicions could render relevant and admissible these statements by him
to third parties, he has submitted that there is no evidence of that
knowledge. We disagree. It is a matter of obvious inference. Since, as she was forced to concede, the
level of mistrust between them by and after September 2003 was extreme and if,
as must have been the case, he was avoiding drinks proffered by her, she,
knowing herself that she had more than once administered drugs to his drink,
must have realized what he was avoiding and why he was avoiding it.”
Their
Lordships also held that evidence having
such relevance possessed a probative value which was not outweighed by its
prejudicial effect.
We are,
with respect, unable to agree with the approach adopted by the Court of
Appeal. The Judge never left to the jury
the possible relevance of the impugned evidence in connection with drugs being
administered by use of the milkshakes.
He had only told them that they could use it as evidence of the
deceased’s belief in the state of the marriage and the steps he had taken in
that belief. Whether the deceased was in
the habit of refusing drinks prepared by the appellant was in dispute and a
matter for the jury. So was the question
whether the appellant was aware that the deceased knew about her drugging his
whisky. There was no evidence that she
did. The Court of Appeal was not
entitled to take over the jury’s role by declaring that her knowledge could
obviously be inferred. That was not a
sound basis for completing the chain of reasoning in its theory of relevance.
It
should be emphasised that we do not seek to suggest in this judgment that the
Court of Appeal’s theory of relevance could never be cogently advanced or that
the probative value of the impugned evidence, given such relevance, must
necessarily be outweighed by its undoubted prejudicial effect. Those may be legitimate matters for
consideration on a retrial in the light of the evidence as a whole and subject
to appropriate directions on relevance being given to the jury. We stress that where a trial judge comes to
the conclusion that it is proper to admit evidence which has the capacity to be
prejudicial, he should clearly direct the jury as to the use to which it can
put the evidence. Our rejection of the
Court of Appeal’s attempt to rescue the position by propounding its own theory
of relevance rests on the fact that such attempt trespasses on functions which
are the province of the jury.
For the
aforesaid reasons, the second ground of appeal is made out.
Ground
3: Self-defence
It is
convenient to begin an examination of this ground of appeal by setting out the
appellant’s account of the violent argument in which the deceased met his death
on 2 November 2003. For the purposes of
considering this ground, it is sufficient, as the Court of Appeal did, to set out
the trial judge’s summary in his summing-up to the jury, of the appellant’s
evidence of the incident:
“She said, ‘Okay, I’m here, what
do you want to talk to me about?’ Robert
Kissel said, ‘Are you listening?’ She
confirmed that she was listening, and he asked again, ‘Are you sure you’re listening?’ Again she confirmed she was, and then he
said, ‘I’ve filed for divorce and I am taking the kids’. Her response was to say, ‘What do you mean
you’re filing for divorce and you are taking the kids?’ She said Robert Kissel said, ‘No, it’s not
what I said’. She said, ‘Yes, it is what
you said. I’ve just heard you, you just
said that’. Robert Kissel said,
according to her, ‘No, it’s not what I said.
If you’d listen, you’d have heard what I said’. She said, ‘Okay, I’m listening’. Once again, she confirmed his inquiry that
she was sure that she was listening, at which point Robert Kissel said,
according to her, ‘What I said was, if you were listening properly, was I have
filed for divorce and I am taking the kids’.
She said, ‘Filed? What do you mean filed?’ Robert Kissel said that it was a done
deal. He’d talked to lawyers. He said, ‘It’s already been done’. He went on to say, according to her, that she
was not fit to take care of the children, she was sick; he’d told his lawyers
about her condition and everything was done.
The
defendant testified that she noticed that Robert Kissel was leaning on a
baseball bat. He raised it with one hand
and brought it down into the palm of his hand.
She asked, ‘What the fuck is that?’ and Robert Kissel said, ‘Oh,
this? This is protection’. ‘Protection from what?’ she inquired. The defendant said that Robert Kissel had
said, ‘Well, I thought you might get mad at what I was telling you and I need
to protect myself in case you got mad’.”
At the
beginning of his summing-up the trial judge informed the jury in relation to
the defence of self-defence, that the appellant claimed that she had been
“attacked first by Robert Kissel”, that she was acting in defence “to a
physical attack on her following taunting and provocative statements made by
Robert Kissel that he had filed for divorce and that he was to take custody of
the children”.
The
judge directed the jury that it was for the prosecution to satisfy them that
the appellant was not acting in self-defence.
He then said:
“What does acting in self-defence
mean? The law is that a person only acts
in lawful self-defence if, in all the circumstances, she believes it necessary
for her to defend herself and the amount of force which she uses in so doing is
reasonable. So, there are two questions
that arise:
(1) Did the defendant believe, or may she
honestly have believed, that it was necessary to use force to defend herself?
A person
who is in reality the aggressor, or who injures another as an act of revenge or
retaliation, acts unlawfully, for it is not necessary for her to use force at
all. In this case, the defendant has
testified that she was attacked by Robert Kissel, who forced her to have sex
and was attempting to force anal sexual intercourse on her, during which
struggle he attacked her with a baseball bat, accompanied by the oral threat,
repeated, that he was going to kill her.
If you are sure that the defendant did not honestly believe that it was
necessary to use force to defend herself, she cannot have been acting in lawful
self-defence and you need not consider this matter further. But if you decide that she was or may have
been acting in that belief, then you must go on to answer the second question.
(2)
Taking the circumstances as the defendant believed them to be, was the amount
of force which she used reasonable?
The law
is that force used in self-defence is unreasonable and unlawful if it is out of
proportion to the nature of the attack or if it is in excess of what is really
required of the defendant to defend herself.
Obviously, as Mr King has reminded you, a person who is under attack may
react on the spur of the moment and she cannot be expected to work out exactly
how much force she needs to use to defend herself. On the other hand, if she uses force out of
all proportion to the attack on her, or more force than is really necessary to
defend herself, the force used would not be reasonable. So you must take into account both the nature
of the attack on the defendant, if indeed there was any attack on her, and what
she then did. (Emphasis added)”
Mr McCoy
SC argues that the sentence emphasized immediately after the question numbered
(1) above is a material misdirection because there are circumstances in which a
person who is the initial aggressor or who harbours an intention to seek
revenge or retaliate can avail himself of self-defence. That such circumstances can exist is well
accepted. Thus, in Burns v HM Advocate, the trial judge told the jury that a
requirement of self-defence was that “the accused must not have started the
trouble”. This was in a case in which
the evidence was that “the accused started the trouble” by assaulting
people. When the fight ended, the
deceased and another followed the appellant whose case was that, as he thought
that they were chasing him, he reacted violently, killing the deceased. His defence was that he did so in response by
way of self-defence after he had walked away.
The
appeal was allowed on the ground that what the judge told the jury was a
misdirection; the fight the appellant started had finished and, if the
appellant’s account were or might be true, he was entitled to defend himself
against the new attack which threatened him.
Their Lordships said:
“It is not accurate to say that a
person who kills someone in a quarrel which he himself started, by provoking it
or entering into it willingly, cannot plead self-defence if his victim then
retaliates. The question whether the
plea of self-defence is available depends, in a case of that kind, on whether
the retaliation is such that the accused is entitled then to defend
himself. That depends upon whether the
violence offered by the victim was so out of proportion to the accused’s own
[actions] as to give rise to the reasonable apprehension that he was in an
immediate danger from which he had no other means of escape, and whether the
violence which he then used was no more than was necessary to preserve his own
life or protect himself from serious injury.
…
But the
only events which were relevant to the issue of self-defence raised by the
charge of murder were those which immediately preceded the fatal blow. The direction was likely to be misleading in
these circumstances, because the jury might well have taken the view that the
appellant was precluded from the plea of self-defence because of his aggressive
and violent behaviour earlier that evening.”
What was
said in Burns about the impugned direction was applied by the English Court of
Appeal in R v Balogun and R v
Rashford. In the latter case, the Court
of Appeal said:
“We would agree that the mere fact
that a Defendant goes somewhere in order to exact revenge from the victim does
not of itself rule out the possibility that in any violence that ensues
self-defence is necessarily not available as a defence. It must depend on the circumstances. It is common ground that a person only acts
in self-defence if in all the circumstances he honestly believes that it is
necessary for him to defend himself and if the amount of force that he uses is
reasonable. This is reflected in the
specimen direction in volume 1 of the Judicial Studies Board Bench Book at para
48. The direction adds in parenthesis:
‘Add as appropriate; a person who
[is the aggressor] [acts in revenge] [knows he does not need to resort to
violence] does not act in lawful self-defence.’
No doubt
for this reason it is common to find in a summing-up a direction such as in the
present case that a person who acts in revenge does not act in
self-defence. But in our judgment it is
important to bear in mind the salutary opening words of this part of the
direction, namely ‘Add as appropriate’.”
Subsequently
the Court said:
“There may be a temptation
whenever it is open to a jury to conclude that the Defendant went to an
incident out of revenge or was the aggressor to direct the jury that if they
reach that conclusion then self-defence cannot avail the Defendant. But if the judge wishes to give a direction
along these lines the facts will usually require something rather more
sophisticated where the possibility exists that the initial aggression may have
resulted in a response by the victim which is so out of proportion to that
aggression as to give rise to an honest belief in the aggressor that it was
necessary for him to defend himself and the amount of force that he used was
reasonable.”
Later,
in rejecting counsel’s submission that the direction was accurate, the Court
pointed out that the judge did not
direct the jury that, if they concluded that the appellant was the aggressor
“throughout”, it could not follow that he honestly believed it was necessary to
defend himself. The court regarded the
omission of that word from the summing-up as crucial.
In
similar vein R v Howard, the New Zealand
Court of Appeal held that there was a misdirection when the trial judge had
directed the jury that:
“The law does not protect a person
from the consequences of acting out of revenge, or retribution, or spite, or
anger.”
Of this
direction, the court said:
“[Self-defence] cannot solely take
the form of retaliation for past grievances.
But it may well be the case that someone who is angry or spiteful may
also fear a future assault.”
It
follows from the statements quoted in the cases to which we have referred that
trial judges should take great care before resorting to a direction that
excludes from the scope of self-defence an aggressor, a person who acts out of
revenge or retaliation or in spite or anger.
A direction in such terms may be too absolute. As Rashford and Howard respectively indicate,
if a judge considers a direction of this kind to be appropriate, it may well be
advisable to frame it in terms which give emphasis to “aggressor throughout” or
“acting solely out of”. What is an
appropriate direction naturally depends on the circumstances to which it is
tailored.
We agree
also with the comment made in Rashford that, if a judge is minded to give a
direction along the lines that self-defence cannot avail a person who acts out
of revenge [or retaliation] or was the aggressor, the facts will usually, if
not almost always, require a more sophisticated direction which is tailored to
the facts.
In this
respect, we repeat what has been said before from time to time. The trial judge’s function in instructing
juries in his summing-up is:
(1) to identify the issues for the jury’s
determination;
(2) to explain to the jury how the law applies
to the facts of the particular case; and
(3) to put the contentions of the respective
parties clearly and fairly to the jury – which will involve relating the
contentions to the evidence in the case.
It is
not the trial judge’s function to engage in a discourse about the law. The only law the jury needs to know is so
much as is necessary to guide it to a decision on the issues for determination.
Against
this background, we turn to the argument presented on behalf of the
appellant. In our view, it was not
appropriate in this case to give the particular direction about “a person who
is in reality the aggressor, or who injures another as an act of revenge or
retaliation”. In view of the central
issue thrown up by the starkly conflicting cases presented by the prosecution
and the defence, it was a matter of deciding between the prosecution case of
premeditated murder and the defence case of self-defence from a violent assault
accompanied by a threat to kill. The
trial judge would have been better advised to have omitted the sentence
complained of. As it was, the sentence
appears to be no more than an abstract proposition of law, unrelated to the
facts.
Otherwise
the critical directions on self-defence in the form of the two specific
questions framed by the judge, related to the facts, as they were, were
impeccable. There is no reason to think
that the jury would have been diverted from confining their consideration of
self-defence to the specific questions so identified and explained to them.
And all
the more so when the jury had with them in the jury room the written directions
which were handed to the jury by the judge.
In the written directions the impugned sentence was omitted.
Moreover,
the judge had, at the beginning of his summing-up, after saying that he was
about to give a direction of law in relation to murder (which included
self-defence and provocation) told the jury:
“… But let me tell you this, that I
intend that you should have this either in transcript form or at least in
writing before you retire to consider your verdict, so do not feel it necessary
to take detailed notes.”
At the
close of the summing-up, the judge told the jury he was going to honour his
promise to give them in writing “the parts of law of the oral directions … in
respect of murder, self-defence and provocation”. The content of the written directions and the
circumstances in which the jury’s attention was drawn to them reinforce the
view that the jury’s attention was not diverted from a proper consideration of
the only two questions for their consideration, identified in relation to
self-defence.
The same
applies to another comment made later in the summing-up in the context of the
judge’s summary of the defence case. In
stating that the appellant’s account of the violent quarrel on 2 November 2003
included her saying that she had picked up the ornament and gone back to Robert
Kissel, the judge interpolated:
“Members of the jury, you have to
ask yourself what was her purpose in doing that. You may think that the small but very heavy
ornament is not a weapon suitable for defence but that it is suitable for use
in attack or offence, but that is a matter for you to consider.”
Mr McCoy
SC relied on this passage in combination with the earlier direction on
aggression, revenge and retaliation to suggest that the jury might have asked
themselves whether, when she picked up the ornament after she saw the deceased
with the baseball bat, she did so with the intent of attacking the deceased,
thereby becoming an aggressor so as to become ineligible to avail herself of
self-defence, regardless of what subsequently happened on her version of
events.
In our
view this is an imaginative but unreal hypothesis. Here the central issue on the evidence involved
a clash of two starkly opposed versions of what happened in the Parkview
apartment around 5:15 pm to 6:15 pm on 2 November 2003. Was it a case of planned, premeditated murder
of a drugged and defenceless victim or was it a case of self-defence from an
attack by a violent, abusive husband who threatened to kill the defendant? The evidence, the addresses of counsel and
the thrust of the summing-up were all directed to that central issue. No one ever suggested to the jury the
possibility that the imaginative hypothesis conjured up by Mr McCoy SC might
have arisen.
Mr McCoy
SC seeks to reinforce his argument by pointing out that the case involved a
defence of provocation as well as self-defence and by submitting that, in such
a case, the direction on aggression, revenge and retaliation is necessarily
inappropriate because provocation bespeaks anger, which in turn invites
speculation about aggression, revenge and retaliation. Again this submission must be rejected; it
has no basis at all in the way the case was conducted and presented to the
jury.
It
follows that the third ground of appeal is not made out.
As the
appellant has succeeded on the first and second grounds argued on her behalf,
it is necessary to consider the proviso.
Proviso
The
respondent submits that in any event the proviso should be applied in the
present case to uphold the conviction.
The test for the application of the proviso is well established: Whether
a hypothetical reasonable jury, properly instructed, would on the evidence
without doubt convict or would inevitably come to the same conclusion. The hurdle laid down by the test is a high
one. In our view, although the
prosecution’s case is a strong one, the test is not satisfied here. It cannot be concluded that a hypothetical
reasonably jury, properly instructed, would on the evidence without doubt
convict the appellant of murder or would inevitably come to the same
conclusion.
Disposal
Accordingly,
the appellant’s conviction should be quashed.
It is plainly in the interests of justice that there should be a
retrial. We so order and that the
appellant be remanded in custody pending retrial. Any application by the appellant for bail
should be made to the Court of First Instance.
As to
costs we give the following directions.
The appellant should file any submissions within 28 days; the respondent
may file submissions in response within 28 days thereafter; and the appellant
may file submissions in reply within 14 days thereafter.
Mr
Justice Bokhary PJ:
Trial by
jury of the most serious cases has long been a cherished tradition of our
criminal justice system. It now enjoys
constitutional entrenchment by virtue of art.86 of the Basic Law. Entrusting issues of fact to a jury has a
multitude of advantages. But it is at
the same time attended by a number of risks.
Our courts are always intensely concerned to see that those advantages
are fully realised while those risks are avoided or at least reduced to a
manageable level. Clear and accurate
directions by the judge to the jury are very much a part of such risk avoidance
or management. So are the exclusionary
rules of evidence. It is sometimes said
that those rules are predicated on very limited faith in the ability of jurors
not to misuse evidence that is probative for one purpose but would be dangerous
if used for another purpose. But there
is another – and perhaps far more acceptable – rationale for those rules. It is due recognition of the fact that, since
jurors do not give reasons for their verdicts, it is not possible to ascertain
whether they have confined such evidence to its proper use. So it is perhaps far more a matter of process
than of personnel.
Writing
with the weight of unsurpassed experience at the bar and on the bench in the
administration of criminal justice, Sir Travers Humphreys gave (in A Book of
Trials (1953) at p.17) three examples of the things that account for wrongful
convictions at jury trials. Of these
examples, the first is “a confusing, and therefore unfair, presentation of the
case for the prosecution”. The law
rightly sets a high standard as to the purity of the evidence that the
prosecution is allowed to place before a jury and as to the clarity with which
the prosecution’s case must be put to the jury.
Now let us, with all of that kept carefully in mind, turn to the
circumstances of the present case.
The
appellant Mrs Nancy Kissel stands convicted of having murdered her husband Mr
Robert Kissel. He was lucratively
employed in the financial sphere. She
was a housewife active in voluntary work.
They, together with their three young children and two domestic helpers,
used to live in a flat in the Parkview complex.
In the late afternoon or early evening of Sunday 2 November 2003, while
they were alone in the flat, she killed him.
He died from one or more of at least five heavy blows to his head with a
lead ornament weighing close to 3.7 kilograms.
The prosecution’s case is based essentially on circumstantial
evidence. It is that Mrs Kissel desired
her husband’s death, planned to kill him, drugged him into an unconscious or
befuddled state by introducing noxious substances into a milkshake which she
had made for him, and then battered him to death. The killing was, the prosecution says, murder. As for the defence case, it is based
essentially on Mrs Kissel’s testimony.
It is that she was an abused wife, that the fatal incident involved yet
another attack upon her by a depraved and violent husband, and that she acted
in self-defence. So, the defence says,
she is not guilty of any crime.
On any
view, the case is a tragic one. There
are three young children whose father is dead at the hands of their
mother. The nature of the prosecution’s
case has made it necessary for them to stress Mrs Kissel’s marital
infidelity. And the nature of the
defence’s case has, in turn, obliged them to make some highly unpleasant
allegations against the late Mr Kissel.
Circumstances do not permit total silence on the ugly things which have
been said about Mr and Mrs Kissel. But
reference to such things should be kept to a minimum. This appeal cannot be decided by making a
saint of one spouse while demonising the other, whichever way round that is
urged.
At the
conclusion of her trial which lasted 66 days before Mr Justice Lunn and a jury
in the High Court, Mrs Kissel was on 1 September 2005 convicted of murder by a
unanimous verdict reached after eight hours’ deliberation. She received the sentence of life imprisonment
that our law prescribes for the crime of murder. The matter then went to the Court of
Appeal. Her conviction was affirmed by
that court (Mr Justice Stuart-Moore VP, Mr Justice Stock JA and Mr Justice
Wright) on 6 October 2008.
Appeal
on three grounds
Criminal
appeals to this Court may be brought under either or both limbs of s.32(2) of
the Court’s statute, commonly called the “point of law” limb and the
“substantial and grave injustice” limb respectively. The former is for the resolution of any real
controversy over points of law of great and general importance. As for intervention under the latter, the
test was laid down by us in So Yiu Fung v HKSAR (1992) 2 HKCFAR 539 at
p.543E-H, and has been applied ever since.
It is as follows :
“Reviewing convictions to see if
they are safe and satisfactory is entrusted to the intermediate appellate
court. If the matter proceeds further to
this Court, our task does not involve repeating that exercise. We perform a different one. In order for an appeal brought under the
‘substantial and grave injustice’ limb … to succeed, it must be shown that
there has been to the appellant’s disadvantage a departure from accepted norms
which departure is so serious as to constitute a substantial and grave
injustice.”
With
leave granted by the Appeal Committee, Mrs Kissel now appeals to this Court on
three grounds. The first rests on two
bases, namely (i) a point of law of great and general importance and (ii) a
complaint of substantial and grave injustice.
It arises thus. Before the trial,
Mrs Kissel applied for (and obtained) bail.
At the trial, prosecuting counsel (not Mr Kevin Zervos SC) cross
examined Mrs Kissel on the submissions, the affidavit evidence and the
psychiatric assessments and reports put forward on her behalf at the bail
hearing. That evidence was from her
solicitor and her sureties. The trial
judge overruled the defence’s objection to such cross-examination. He was of the view, which the Court of Appeal
shared, that cross examination on bail materials is permissible for the purpose
of impugning an accused person’s credibility.
The point of law of great and general importance under this ground is
the defence’s point that such cross examination is not permissible even for
that limited purpose. And the complaint
of substantial and grave injustice under this ground is that the cross
examination of Mrs Kissel on bail materials was objectionable in that it (i)
strayed beyond impugning credibility to include establishing incriminating
facts and (ii) proceeded on a false premise so as to be unfair.
In
answer to the complaint made under the first ground, the prosecution submits as
follows. The matters on which Mrs Kissel
was liable to be cross-examined for the purpose of impugning her credibility
include her state of mind, any previous inconsistent statements made by her and
opinions expressed by others as to her state of mind. She was liable to be cross examined on such
matters even though they were contained in bail materials. Prosecuting counsel’s cross examination of
her on bail materials was confined to impugning her credibility, and was
soundly based.
The
second ground rests on one basis only, namely a complaint of substantial and
grave injustice. This ground arises in
this way. With the permission of the
trial judge who overruled the defence’s objection to such a course, the
prosecution called witnesses to testify that Mr Kissel had told them that he
suspected Mrs Kissel of trying to poison him.
It is submitted on Mrs Kissel’s behalf that such testimony was hearsay
and therefore inadmissible.
Alternatively, it is submitted on her behalf that even if such testimony
was probative evidence, it should nevertheless have been excluded as more
prejudicial than probative.
In
answer to the complaint made under the second ground, the prosecution submits
as follows. The testimony in question
went to Mr Kissel’s state of mind, knowledge and intention in relation to the
state of the marriage and his relationship and dealings with Mrs Kissel. Those were facts in issue. The state of the marriage and the level of
mistrust between Mr and Mrs Kissel were central issues. So much so that the testimony concerned was
so probative that its probative value was not exceeded by any prejudicial
effect.
Like the
second ground, the third ground rests solely on the basis of a complaint of
substantial and grave injustice. It
arises in this way. A person who acts in
self-defence does not act unlawfully. When
directing the jury on self-defence, the trial judge saw fit to tell them that a
person who is “in reality the aggressor” acts unlawfully. It is submitted as follows on Mrs Kissel’s
behalf. The jury having been told that a
person who is in reality the aggressor acts unlawfully, they should also have
been told that even an initial aggressor might later be acting in
self-defence. Since the trial judge did
not add that, the directions on self-defence were incomplete.
In
answer to the complaint made under the third ground, the prosecution submits as
follows. There was no evidential basis
for a direction that even an initial aggressor might later be acting in
self-defence. The defence had been
properly summed-up by the trial judge for the jury.
Cross-examination
on bail materials
Cross-examination
was described by Dean J H Wigmore as “the greatest legal engine ever invented
for the discovery of truth”. My
acquaintance with this description – which is widely known throughout the
common law world – was renewed when I happened to come across it recently in 5
Wigmore on Evidence (Chadbourne revision 1974) §1367 at p.32. (Although that revision is not the latest
one, it is nevertheless sufficient for present purposes.) Something else on that page caught my
attention, namely the warning that “[i]t may be that in more than one sense [cross-examination]
takes the place in our system which torture occupied in the medieval system of
the civilians”. Although realistically
to be regarded as more apt merely to expose falsehood than actually to discover
truth, cross examination is undeniably central to the trial process.
As explained
by the Court for Crown Cases Reserved in The Queen v Payne (1872) LR 2 CCR 349,
it had been the common law from the earliest times that since no one is bound
to incriminate himself or herself, a person on trial could neither be examined
nor cross-examined. The choice of
whether or not to testify was conferred on accused persons by statute in
relatively recent times. Keeping
cross-examination within the bounds of fairness is especially important when
the person being cross-examined is the one on trial. Persons on trial are especially unlikely to
do themselves justice while under the torment of unfair cross-examination. Such unfairness puts both the manner and the
matter of their testimony in highly objectionable jeopardy. It turns their opportunity to enter the
witness-box from a right into a decoy.
At this
trial, as is common, the critical stage was the cross examination of the
accused person. For what purpose was Mrs
Kissel cross-examined on bail materials?
According to the Court of Appeal, such cross examination
“was designed to illustrate a
material contrast between [Mrs Kissel’s] mental condition and history put
forward on her behalf at the bail proceedings in November 2004 and the picture
she sought to convey to [Dr CK Wong] as well as to the court in her examination
in chief; all this to give the lie to the factual assertions that underpinned
the defence of diminished responsibility and to the allegations of attempted
suicide”.
It
should be explained that Dr C K Wong is a psychiatrist who interviewed Mrs
Kissel on 13, 20 and 28 January and 1 and 8 February 2005. On 13 May 2005 a report by Dr Wong on Mrs
Kissel was served on the prosecution by the defence. That report, the Court of Appeal observed,
“covers 73 pages of [Mrs Kissel’s] account of her marriage and the
circumstances of the killing of her husband as well as Dr Wong’s
conclusions”. Dr Wong was not called as
a witness. As summarised by the Court of
Appeal, Dr Wong’s conclusions as stated in his report were that
“1) before and at the time of the killing, [Mrs Kissel] was suffering
from Major Depressive Disorder;
2) at the time of the killing, and for some
time thereafter, she probably suffered disassociative amnesia;
3) after the killing she likely suffered from
disassociative fugue, lasting for a few days; and
4) at the date of his report, she required
treatment for Major Depressive Disorder.”
(By
“disassociative” the Court of Appeal presumably meant “dissociative”.)
The
question of amnesia arose in this way.
As to what Mrs Kissel did after the killing, the prosecution’s case, as
summarised by the Court of Appeal, is that she
“set about trying to conceal what
she had done. She eventually wrapped the
body in a sleeping bag, a carpet and in plastic using towels to cover the head
wounds. The whole parcel was tied
together with a combination of rope and adhesive tape and a number of cushions
were attached to the outside before the Parkview staff were asked to remove the
package to a storeroom. She also made up
stories to explain [Mr Kissel’s] absence from home and work.”
On 6
November 2003 Mrs Kissel made a report to the police, saying that Mr Kissel had
disappeared after assaulting her on 2 November 2003. The police conducted inquiries. On 7 November 2003 they discovered Mr
Kissel’s body in a storeroom in the Parkview complex. Mrs Kissel testified that she had no
recollection of wrapping up the body and having it taken to the storeroom. The prosecution contended that Mrs Kissel was
pretending not to have any recollection of that, so pretending in order to
avoid having to explain it.
In what
way was Mrs Kissel’s psychiatric condition regarded as relevant to the question
of bail? On 1 November 2004 Mr Justice
Burrell heard her application for bail pending trial. At the time she was in custody at the Siu Lam
Psychiatric Centre. Mr Justice Burrell
began by asking why she was at a psychiatric centre. And everything which Mrs Kissel’s then
leading counsel Mr John Griffiths SC put forward about her psychiatric
condition was directed to showing that she was not suffering from any mental
abnormality that rendered her a danger to herself or others so as to militate
against her being released on bail. One
of Mrs Kissel’s answers under cross examination on bail materials is this : “It
may be [the psychiatrist Dr C H Yuen’s] opinion that my memory loss is not
suggesting that I have a psychiatric condition enough to be released or not to
be released from prison”. Although she
did not make it as clearly as she might have done under less stressful
circumstances, her point is a valid one.
Memory loss is not a ground for keeping people locked up.
Contrary
to the Court of Appeal’s view, there was no material contrast between Mrs Kissel’s
mental condition as put forward at the bail proceedings and as conveyed to Dr
Wong and to the trial court. Yet Mrs
Kissel was strenuously cross examined at length and accused of lying on the
footing that such contrast existed.
Where two things are not really at variance but a skilful and persistent
advocate is given free rein to cross-examine as if they were wholly at
variance, the witness is liable wrongly to be made to appear shifty or
worse. By its content and duration, this
cross examination was highly unfair in its effect. And there is a real danger that such
unfairness brought about the conviction or at least contributed materially to
it.
What
impression might this cross-examination have created? Some of the questions were so bad as to make
Mrs Kissel’s answers appear (in print at least) to be relatively good. But it cannot be assumed that she was not
harmed. Her intelligence may have
favourably impressed the jury, or they may have thought her too clever by
half. The cross-examiner indulged in
comment. Questions were repeated again
and again after they had been answered.
The unfair cross examination went on repetitively and not for hours but
for days. It was interrupted by defence
objections which should have been upheld but were overruled. Apart from one, every ruling went against the
defence. Some of the defence’s
objections and the trial judge’s rulings against those objections were made in
the presence of the jury. Even where the
rulings against the defence were made in the jury’s absence, it must have been
obvious to them, once the challenged questions were repeated upon their return,
that the trial judge considered the questions to be legitimate. By the time Mrs Kissel answered, therefore,
the atmosphere was unfavourable to her.
The one
ruling which did not go against the defence involved the trial judge inviting
prosecuting counsel to reconsider his position.
That invitation was made in the absence of the jury. When the jury came back, the question was not
repeated. But it was not expressly
withdrawn. Nor were the jury directed to
ignore it. Leaving the question
unanswered without telling the jury to ignore it was confusing and might have
been as harmful as, if not more harmful than, making Mrs Kissel answer.
This was,
in its effect even if not in its purpose, an oppressive cross-examination
against a woman – shown on the transcript to have been in a highly emotional
state – on trial for murder. It is not
acceptable.
Sometimes
any danger of unfairness to a person on trial can and is removed by
instructions to the jury. That did not
happen in the present case. Far from
removing the unfair effect of the cross-examination on bail materials, the
summing-up magnified it. When dealing
with Mrs Kissel’s testimony of memory loss, the trial judge said this to the
jury :
“The defendant accepted that she
had made an application for bail pending trial on 1 November 2004 and that she
was represented by Mr John Griffiths of Senior Counsel, whom she accepted had
said, on behalf of her three prospective sureties, that they said, in respect
of the defendant, ‘There is no question of any psychiatric problem’; they all
say, ‘She is perfectly normal and the woman that she was, save for some
emotional debility’”.
Quite
apart from anything else and even if Mr Griffiths’s advocacy amounted to
admissions by Mrs Kissel, it was wrong to say, as the judge put it, that Mr
Griffiths had spoken on behalf of the sureties.
Putting it like that might have given the jury the impression that Mr
Griffiths had received information from the sureties. There was no evidence that he had.
Was the
prosecution suggesting that Mrs Kissel’s testimony at trial of memory loss was
a recent fabrication? I do not consider
it necessary to arrive at a definite answer to this question since I think that
the complaint of substantial and grave injustice under the first ground is made
out whether or not the prosecution was suggesting recent fabrication. But I will, in order to sound a note of
caution for the future, say as follows.
The prosecution relied on – and sought to make much of – the fact that
no mention of memory loss on Mrs Kissel’s part was made when she applied for
bail. Indeed, the prosecution’s stance
was that Mr Griffiths’s assertion at the bail application that Mrs Kissel was
psychiatrically normal positively ran counter to the notion of memory loss on
her part. From the very nature of such
reliance and such stance, it might be thought that the prosecution’s point was
that what Mrs Kissel said at the trial about memory loss was something which
she fabricated after the bail application.
Moreover prosecuting counsel may be thought to have made that point
expressly in his closing speech to the jury when he said this : “Her claims of
selective memory loss now is simply more evidence of an attempt to avoid the
incriminating nature of the cover-up of the fact that she had killed her
husband”. Note the word “now”.
As
explained in Archbold Hong Kong (2010) at p.753, previous consistent statements
are admissible to rebut suggestions of recent fabrication. That is so even if, as in The Queen v Martin
(1996) 86 A Crim R 198 decided by the Court of Criminal Appeal of South
Australia, the suggestion is only implicit.
In the present case it might be thought that the suggestion was implicit
in cross examination and explicit in closing speech. If there had indeed been such a suggestion,
then a vital point for the defence in meeting the suggestion arose out of the
testimony of Mrs Geertruida (or Trudy) Samra about a conversation with Mrs
Kissel at the Siu Lam Psychiatric Centre.
Mrs Samra was a defence witness.
Her evidence-in-chief includes this :
“Q. Did there come a time during the course of that year of your visits
when the subject of what had happened was raised?
A. One time when – very early in the days of
Siu Lam when she was still very distressed and was assisted by the prison
wardens because she couldn’t walk and she was shaking a lot, she asked me one
time, which threw me off guard, she said to me, ‘Trudy, how is Rob?’ And I was shocked, because I didn’t know what
to say in a way, and I said, ‘Honey, Rob has gone. You know that, right?’ And she said, ‘I don’t know, I can’t remember
much.’ That was the only time she
referred to Rob during Siu Lam.
Q. Are you able to tell us how long, in your
recollection, she had been in Siu Lam when she made that remark to you?
A. Early, early, probably the first week, the
first 10 days or so, very early in the beginning, maybe the first two, three
days, but very early on.”
Prosecuting
counsel did not suggest to Mrs Samra that no such conversation took place. The following appears in the transcript of
his cross-examination of her :
“Q. … Now, you’ve suggested in your evidence that, at some stage, Nancy
Kissel spoke to you and said, ‘Where’s Rob?’
Is that right?
A. That’s right.
Q. And when was that?
A. That was the very early days when I visited
her in Siu Lam and she was still in a very distressed state.
Q. And that she went on to say either on that
visit or a subsequent visit, ‘Pieces are missing.’ ‘There are missing pieces.’ Something like that?
A. It wasn’t during the same visit because we
were only allowed to stay 15 minutes and we usually talked about the
children. I think it was one or two
visits afterwards.
Q. And did that give you cause for concern?
A. I was concerned for her at that time.
Q. As to her mental state?
A. As to her recollection.
Q. Well, she was asking where her dead husband
was.
A. Yes.”
So Mrs
Kissel had given an indication of memory loss prior to her bail
application. When referring to Mrs
Kissel’s question “Trudy, how is Rob?”, the trial judge did not emphasise, or
even acknowledge, the vital point for the defence to which that question would
give rise for the purpose of meeting a suggestion of recent fabrication. Instead, as we have seen, he ranged Mrs
Kissel’s sureties against her on the question of memory loss. That was particularly unfortunate on any view
and whether or not recent fabrication was suggested. Mrs Samra was one of Mrs Kissel’s
sureties. And prosecuting counsel, using
the transcript of the bail proceedings, had put the following question to, and
obtained the following answer from, Mrs Kissel :
“Q. There’s no suggestion in any of those passages that [Mr Clarke], or
your three good friends detected any problem with you, Mrs Kissel, do you
agree?
A. Yes.”
It is
true that no suggestion of memory loss appears in any of those passages. But Mrs Samra was one of the friends referred
to in that question. And by the time
when the trial judge summed-up, there was Mrs Samra’s testimony of Mrs Kissel’s
question “Trudy, how is Rob?”. In this
connection, it is appropriate to mention the second example given by Sir
Travers Humphreys (in his book referred to earlier) of the things that account
for wrongful convictions at jury trials.
It is “a failure by the presiding judge to emphasise sufficiently a
vital point for the defence”. (Pausing
here, it is only fair to mention (i) that Sir Travers Humphreys gave as his
third example “a refusal to allow an adjournment, though applied for on
reasonable grounds” and (ii) that nothing of the kind happened in the present
case.)
The
complaint against the cross-examination on bail materials is sufficiently made
out even on the foregoing basis alone.
And I do not propose to say anything about the other aspects of this
complaint beyond expressing my respectful agreement with the interpretation
placed on the bail provisions of the Criminal Procedure Ordinance, Cap.221, by
the other members of the Court and with their view that there is no general
prohibition against the use at trial of bail materials.
His
suspicion that she was trying to poison him
Matters
adverse to accused persons may be purely probative, merely prejudicial or
partly both. The complaint under the
second ground is against the calling of witnesses to testify that Mr Kissel had
told them that he suspected Mrs Kissel of trying to poison him. It is complained that this testimony was merely
prejudicial or, at best, overwhelmingly more prejudicial than probative. The witnesses concerned are Ms Bryna O’Shea
(a family friend) and Mr Frank Shea (an inquiry agent engaged by Mr Kissel to
inquire into Mrs Kissel’s liaison with another man). Ms O’Shea testified that Mr Kissel
half-jokingly told her that he suspected Mrs Kissel of trying to poison
him. Mr Shea testified that, upon Mr
Kissel expressing such a suspicion to him, he advised certain precautions,
which Mr Kissel declined to take.
Subject
to the rules of exclusion designed to avoid wrongful convictions, evidence is
admissible if of a probative nature.
Probative evidence is not inadmissible merely because it carries a risk
of prejudice. Jurors are commonly
directed that they may take evidence into account for one purpose but must not
take it into account for another purpose.
They are normally trusted to follow such a direction. But it is recognised that there are
circumstances in which that would be asking too much of them. In the case of Krulewitch v United States 336
US 440 (1949) decided by the United States Supreme Court, Mr Justice Jackson’s
concurring judgment includes the observation (at p.453) that “[t]he naive
assumption that prejudicial effects can be overcome by instructions to the jury
… all practicing lawyers know to be unmitigated fiction”. That, depending on how you read it, may be
going further than our courts go. But it
is at any rate certainly our law that the imperative of a fair trial subjects
even probative evidence to a judicial discretion to exclude the same on the
basis that it is more prejudicial than probative. As was pointed out by the Chief Justice in
Secretary for Justice v Lam Tat Ming (2000) 3 HKCFAR 168 at pp 178J-179A, a
court’s overriding duty to ensure a fair trial invests the court with a
judicial discretion to exclude even admissible evidence if doing so is
necessary in order to secure a fair trial.
The
courts have always sought to shield accused persons from prejudice. Originally, however, it was only through
their influence over prosecuting counsel that judges prevented (or endeavoured
to prevent) prejudicial evidence from being placed before jurors. The practice was described thus by Lord
Moulton in The King v Christie [1914] AC 545 at p.559:
“The law is so much on its guard
against the accused being prejudiced by evidence which, though admissible,
would probably have a prejudicial influence on the minds of the jury which
would be out of proportion to its true evidential value, that there has grown
up a practice of a very salutary nature, under which the judge intimates to the
counsel for the prosecution that he should not press for the admission of
evidence which would be open to this objection, and such an intimation from the
tribunal trying the case is usually sufficient to prevent the evidence being
pressed in all cases where the scruples of the tribunal in this respect are
reasonable. Under the influence of this
practice, which is based on an anxiety to secure for every one a fair trial,
there has grown up a custom of not admitting certain kinds of evidence which is
so constantly followed that it almost amounts to a rule of procedure.”
By a
process of development observable in the decisions of the Privy Council in Noor
Mohamed v The King [1949] AC 182 and Kuruma v The Queen [1955] AC 197, the
common law has advanced from that position.
In the former Lord du Parcq made it clear (at p.192) that there is a
discretion to exclude “gravely prejudicial” albeit “technically admissible”
evidence. And in the latter Lord Goddard
CJ said (at p.204) that “in a criminal case the judge always has a discretion
to disallow evidence if the strict rules of admissibility would operate
unfairly against an accused”.
The
breadth of the Lord Chief Justice’s statement in Kuruma’s case is in keeping
with our constitution. As we recently
stressed (in Kennedy v Cheng, FACV No.30 of 2008, 20 October 2009, at para.39),
the right to a fair trial is guaranteed by the Basic Law (directly through
art.87 and indirectly through art.39 entrenching art.10 of the Bill of
Rights). The essence of an accused
person’s right to a fair trial was explained in the High Court of Australia by
Chief Justice Mason and Mr Justice McHugh when they said in Dietrich v The
Queen (1992) 177 CLR 292 at p.299 that it provides “an immunity against
conviction otherwise than after a fair trial”.
We cited that in Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126 at p.133H
for the “direct correlation between the fairness of a trial and the viability
of a conviction”. Indeed, as Mr Justice
Ribeiro PJ for this Court explained in HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133
at p.150F-G, the courts would stay any prosecution in which fairness could not
be achieved. The only permissible form
of trial is a fair one, and convictions are viable only when independent of
unfairness.
Of
course even before one gets to the balancing exercise under which evidence may
be excluded as more prejudicial than probative, the question of whether it is
probative at all may arise. Such a
question must always be approached with care.
That is illustrated by the warning which Lord Sumner famously issued at
the end of this passage from his speech in Thompson v The King [1918] AC 221 at
p.232 :
“No one doubts that it does not
tend to prove a man guilty of a particular crime to show that he is the kind of
man who would commit a crime, or that he is generally disposed to crime and
even to a particular crime; but, sometimes for one reason sometimes for
another, evidence is admissible, notwithstanding that its general character is
to show that the accused had in him the makings of a criminal, for example, in
proving guilty knowledge, or intent, or system, or in rebutting an appearance
of innocence which, unexplained, the facts might wear. ……
Before an issue can be said to be raised, which would permit the
introduction of such evidence so obviously prejudicial to the accused, it must
have been raised in substance if not in so many words, and the issue so raised
must be one to which the prejudicial evidence is relevant. The mere theory that a plea of not guilty
puts everything material in issue is not enough for this purpose. The prosecution cannot credit the accused
with fancy defences in order to rebut them at the outset with some damning piece
of prejudice.”
In
Subramaniam v Public Prosecutor [1956] 1 WLR 965 the testimony as to what
somebody said was relied on by the accused person rather than by the
prosecution. Even so, the Privy Council
did not confine themselves to declaring that such testimony is admissible
evidence rather than hearsay when it is given to establish only the fact that
the statement was made and not its truth.
Their Lordships explained precisely why the fact of the statement having
been made was relevant and therefore probative in the particular circumstances
of that case. That illustrates how
careful one has to be (i) when deciding whether to permit such testimony to be
placed before a jury and (ii) in directing them on what use they can and cannot
make of any such testimony. Sometimes
what use the jury can make of any given item of evidence will be obvious. At other times that will have to be spelled
out for them, especially when there is a danger of the evidence being put to
impermissible use.
Why were
prosecution witnesses called to testify that Mr Kissel had told them that he
suspected Mrs Kissel of trying to poison him?
The trial judge told the jury that such testimony was evidence
“only in respect of [Mr Kissel’s]
belief of the state of the marriage; that is to say, what steps he took in
relation to the marriage, believing that this to be the case – or at least
asserting that he believed this to be the case”.
So the
trial judge thought – and the jury were directed by him – that the relevance of
that testimony lay in what Mr Kissel believed and therefore did. But that is not how the Court of Appeal saw
it, for they thought that the relevance of that testimony lay in what Mrs
Kissel believed and therefore did. As to
that, they said this :
“ Viewed
in isolation, there is a feature of this case that might be said to stand
against the prosecution’s case of premeditated murder. It is the manner in which the killing is said
to have taken place. If, as was
contended by the prosecution, it was [Mrs Kissel’s] plan to poison her husband,
there existed less risky ways in which to do so. For example, she might simply have drugged
one of his drinks and handed it to him, ensuing that he and he alone consumed
it. Instead, the picture that emerged
was of a milkshake laced with drugs and delivered to [Mr Kissel] not by [Mrs
Kissel] herself but by one of the children and, moreover, delivered not only to
[Mr Kissel] but also to a third person, [Mr Andrew Tanzer].
Those
facts, viewed in isolation, posed any fact-finder with a conundrum. There could be little doubt on the evidence
that the mixture of drugs found in [Mr Kissel’s] stomach contained the same
drugs as had been prescribed in the preceding days to the appellant for her own
use. Yet, against that powerful fact,
combined with a number of others that provided a strikingly cogent case against
[Mrs Kissel], stood this apparently odd feature, seemingly in her favour.”
They
then said that Mrs Kissel must have chosen to drug Mr Kissel by lacing the
milkshakes because she knew that he suspected her of trying to poison him. Even assuming that such knowledge could
properly be inferred, still it would be for the jury to decide whether or not
to draw such an inference. Mr Gerard
McCoy SC for Mrs Kissel is right in saying that in this connection the Court of
Appeal were usurping the function of the jury.
Another
problem with the Court of Appeal’s thinking on this part of the case emerges
from their statement that “there is one irresistible inference which may safely
be drawn, which is that by September 2003 and thereafter [Mr Kissel] must have
taken the greatest care to avoid drinks offered to him by [Mrs Kissel]”. The problem is that Ms Conchita Macaraeg, who
had been one of the Kissel family’s domestic helpers and was called as a prosecution
witness, said that in September 2003 Mrs Kissel made coffee for Mr Kissel every
morning. If for no other reason, that
hole in the Court of Appeal’s “drinks avoidance” theory should be mentioned out
of fairness to the trial judge who wisely refrained from floating any such
theory when directing the jury.
The
Court of Appeal concluded their judgment on this part of the case by saying
that “[g]iven the relevant purpose for which [the testimony was] admissible and
given also the fact that [Mrs Kissel] admitted lacing [Mr Kissel’s] drink in
late August 2003, [they did] not agree with [her counsel’s] contention that the
prejudicial effect of the testimony outweighed its probative value”. It is vital that Mrs Kissel’s so-called
admission of lacing Mr Kissel’s drink be seen in context. What she said about lacing his drink was that
she had done so in order to calm him down.
Far from being consistent with the prosecution’s case that she was a
scheming murderess, her testimony in this regard is consistent with the
defence’s case that she was an abused wife who ultimately killed her husband in
self-defence.
This
part of the prosecution’s case is now in confusing disarray. The jury were directed that the testimony of
the witnesses who said that they had heard Mr Kissel say that he suspected Mrs
Kissel of trying to poison him was relevant for one purpose while the Court of
Appeal thought that it was relevant for a different purpose, not being one left
by the trial judge to the jury for their consideration. In truth the testimony in question was
hearsay and therefore not probative at all.
Evidence as to the state of the relationship between the deceased and
the person accused of murder may be admissible.
But as the decision of the New South Wales Court of Criminal Appeal in
The Queen v Frawley (1993) 69 A Crim R 208 shows, that does not make it
permissible to place suspicion of this kind before a jury. Mr McCoy rightly relies heavily on Frawley’s
case. As for The Queen v Phillips [2003]
2 Crim App Rep 528, the relationship evidence held admissible by the English
Court of Appeal in that case did not include such suspicion. Another decision of the New South Wales Court
of Criminal Appeal which has been shown to us is The Queen v Clark (2001) 123 A
Crim R 506. Clark’s case is reported as
having distinguished Frawley’s case, but has not rendered that earlier case any
less persuasive. Mr Zervos seeks to
place heavy reliance on Clark’s case, but has not managed to extract from it
any statement of principle or illustration of principle that is of assistance
to us in deciding the present appeal.
And that was not for want of trying, or want of ability, on Mr Zervos’s
part.
So the
testimony that Mr Kissel was heard to say that he suspected Mrs Kissel of
trying to poison him was mere hearsay and therefore not probative at all. But even if that testimony was probative to
some extent, it would be so much more prejudicial than probative that it had to
be excluded because not excluding it would render a fair trial for Mrs Kissel
impossible. It is plain that the only
proper exercise of discretion would be one by which that testimony was
excluded.
Great as
the prejudice already was, it was greatly added to by prosecuting counsel’s
closing speech. As to Ms O’Shea’s testimony,
he said that although Mr Kissel’s statement that he suspected Mrs Kissel of
trying to poison him appeared to Ms O’Shea at the time to have been said half
jokingly, it turned out to be prophetic.
And as to Mr Shea’s testimony, he said that Mr Kissel’s failure to act
on Mr Shea’s advice might have cost Mr Kissel his life. In between saying those two things and
perhaps even more harmfully although less emotively, prosecuting counsel said
that Ms O’Shea and Mr Shea’s testimony demonstrated that by September Mrs
Kissel had begun to employ drugs against Mr Kissel. Each of those three points urged upon the
jury by prosecuting counsel necessarily proceeded on the footing that what Mr
Kissel was said to have said that he suspected was true. Rightly, the trial judge did not take up
those points. Nor, unfortunately, did he
tell the jury to ignore them. In the
result, the miasma of those impermissible points was left to hang over the
jury’s deliberations.
Self-defence
becoming available to an initial aggressor
Turning
to the third ground, the complaint thereunder is against the trial judge’s
failure to tell the jury that self-defence can be available to an initial
aggressor (or “original aggressor” which is how the High Court of Australia put
it in Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 at
p.663). As Lord Justice General Hope
(later Lord Hope of Craighead), delivering the judgment of the High Court of
Justiciary, said in Burns v Her Majesty’s Advocate [1995] SLT 1090 at p.1093H,
it “is not accurate to say that a person who kills someone in a quarrel which
he himself started, by provoking it or entering into it willingly, cannot plead
self defence if his victim then retaliates”.
The jury must consider whether the accused person was “the aggressor
throughout” (to borrow the expression used by Lord Justice Otton at the end of
the judgment given by him for the English Court of Appeal in The Queen v Balogun [1999] EWCA Crim 2120). Speaking for that court in The Queen v
Rashford [2005] EWCA Crim 3377, Lord Justice Dyson said this at para.21 : “The
important word ‘throughout’ is missing from the summing-up. We regard this as a crucial omission”. As the New Zealand Court of Appeal noted in
The Queen v Howard (2003) 20 CRNZ 319 at p.325, anger and spite do not
necessarily preclude self-defence.
The
circumstances relevant to this complaint are to be found in Mrs Kissel’s
account of how she came to pick up the fatal ornament consisting of a
base-plate and two figurines. Mr Kissel
was described in the summing-up as “a well built, athletic man of about 40
years of age, 180 centimetres and 69 kilograms”. Mrs Kissel was, the trial judge said, “a
relatively slightly built woman”. At the
trial two years after the killing, she gave her age as 41.
Mrs Kissel’s
account may be outlined as follows.
Holding a baseball bat, Mr Kissel announced that he was going to divorce
her and seek custody of their children.
She questioned him about the baseball bat. He told her that it was to protect him from
her in case she became angry and attacked him.
She then paced back and forth.
Thinking about the baseball bat which he had told her was for his
protection from her, she picked up the ornament and went towards him. (Mr McCoy spoke of her “storming down the
corridor”, which is not how she put it but could be how the jury saw it.)
Berating
him over the proposed course which he had announced, she wagged a finger in his
face. He grasped her arm. She spat in his face. He struck her across the mouth. She fell down, dropping the ornament. He dragged her into the bedroom. There he attempted to perform anal
intercourse on her (something which she said he had often forced on her in the
past). She resisted, and kicked him so
that they both ended up on the floor. As
she crawled away, he dragged her back by the ankles, saying that he had not
finished with her yet. In the ensuing
struggle, she reached for the ornament, and swung it back without looking. She felt that she had hit something. He let go of her. Turning around, she saw him sitting on the
floor. His head was bleeding. Refusing her offer of help, he pulled himself
up on to the bed and sat on it. Touching
his head and discovering that it was bleeding, he said that he was going to
kill her. Picking up the baseball bat,
he struck her on the knee with it.
Falling down, she picked up the ornament. She swung it at him, striking his leg. The struggle proceeded with her using the
ornament and him using the baseball bat, he saying repeatedly that he would
kill her. She was beaten to the
floor. He descended upon her as she held
the ornament in front of her face.
Having
got to that point of her testimony, Mrs Kissel was asked by her counsel at
trial Mr Alexander King SC to continue with her description of events. Whereupon she paused for a long time and
then, shaking her head, said “I don’t remember”. She accepts, however, that she killed Mr
Kissel. The medical evidence shows that
he received at least five heavy blows to his head and died from one or more of
those blows.
At about
9 o’clock in the morning after the evening of the fatal incident, Mrs Kissel
went to see Dr Annabelle Dytham. Called
by the defence, Dr Dytham gave evidence of the injuries which she saw on Mrs
Kissel when she examined her on that occasion.
The injuries which Dr Dytham said that she saw on Mrs Kissel were :
bruising and redness to the thumb and the first finger of each hand; puncture
wounds on the inner creases of the right hand; bruising in fingerprint patterns
on the inner aspect of the right wrist up to the elbow; a bruise on the inner
side on the right thigh; what might have been carpet burns on both knees, it
being possible that the injury to the right knee was a graze; a bruise over the
right shin; a bruise on the ankle; and a bruise on the lower left leg. As to the injuries to Mrs Kissel’s knees, Dr
Dytham gave evidence which was neutral in its overall effect. She said that the knee injuries could have been
caused while Mrs Kissel was pushing and pulling Mr Kissel’s body as she knelt
on the carpet but were also consistent with Mrs Kissel having been pulled
across the carpet during the fatal incident.
On 5
November 2003 Mrs Kissel was seen by her father upon his arrival in Hong Kong,
he having flown here from the United States in response to a telephone call
from her on the 3rd of that month. He
testified that she was wearing a strap around her waist and had a split lip.
The
trial judge directed the jury that a person who is “in reality the aggressor”
acts unlawfully. But he omitted either
to qualify the word “aggressor” with the word “throughout” or to add that even
an initial aggressor might later be acting in self-defence. That omission might not have mattered if he
had summed-up purely from the facts to the law by simply telling the jury that
they could not convict Mrs Kissel if they thought that her account of the fatal
incident was or might be true. But the
closest that he came to giving them such a direction was when he said this :
“If you accept her testimony that, although she killed [Mr Kissel], she did so
in lawful self-defence, or if you think that that evidence may be true, then of
course, you would acquit [Mrs Kissel].”
The inclusion there of the word “lawful” begs the question or at least
creates uncertainty. What would be
lawful? For that, the trial judge moved
on to sum up from the law to the facts.
Summing-up from the law to the facts is not of itself open to criticism. Indeed, it is common. But it does mean that the directions to the
jury on the law of self-defence had to be clear, accurate and complete.
As the
High Court of Australia pointed out in Alford v Magee (1952) 85 CLR 347 at
p.466, “the only law which it [is] necessary for [the jury] to know [is] so
much as must guide them to a decision on the real issue or issues in the
case”. Judges are well aware that they
should not burden a jury with pointless directions, for such directions are
likely to confuse them. And judges are equally
aware that jury directions should be tailored to the relevant circumstances of
each case. It is of course hardly to be
imagined that jurors expect to receive pointless and irrelevant
directions. Moreover the last thing
which the trial judge did before turning from the law to the evidence was to
tell the jury in terms that the directions of law which he had given them were
the ones which he was “required” to give them.
So why did the trial judge direct the jury that a person who is in
reality the aggressor acts unlawfully?
The jury would naturally have asked themselves that question. How might they have answered it for
themselves? The direction, being on the
law of self-defence, could not possibly have applied to the prosecution’s case
of the planned murder of a drugged and unconscious or semi-conscious husband by
an unfaithful wife with an avaricious eye to the matrimonial fortune. It could only have applied to the defence’s
case of self-defence in the course of a struggle. Which part of it?
It must
have been to the part where Mrs Kissel accepted that she armed herself with the
fatal ornament and then went towards Mr Kissel after and despite his having
made it clear to her that, far from intending to attack her, he so feared an
attack by her that he had taken up a baseball bat for his own protection. The trial judge told the jury that they had
to ask themselves for what purpose Mrs Kissel had picked up that ornament and
gone towards Mr Kissel. And then the
trial judge made an observation which strongly suggested that her having done
that made her the aggressor, saying this to the jury :
“You may think that the small but
very heavy ornament is not a weapon suitable for defence but that it is
suitable for use in attack or offence, but that is a matter for you to
consider.”
That is
to make a case against Mrs Kissel even on the basis of her own account.
On the
law of self-defence applicable to circumstances like these, what the trial
judge told the jury in his living voice and to their faces was misleading. And one cannot assume that they ignored it
just because it was not repeated in the lifeless paper directions handed to
them. Although I consider the complaint
under the third ground made out while the other members of the Court do not,
that is due only to different views as to the sufficiency of the directions in
the context of the facts. It is not due
to any disagreement as to the law. Nor
does it affect the result of the appeal.
Overview
Mr
Zervos asks the Court to have regard to the totality of everything in the case
when deciding if this was a fair trial.
It is of course perfectly legitimate to ask the Court to do that. But when that is done, what emerge are
numerous elements of grave concern in addition to the ones on which the
defence’s specific complaints are directly based. The jury were told by the trial judge to
“have regard to the points made by counsel in their closing speeches”. One such point was the one put forward by
prosecuting counsel when, without any evidential foundation, he invited the
jury to take the view that the man with whom Mrs Kissel was having a liaison
had given her “tacit encouragement” to “remove” Mr Kissel. That, to say the very least, opened up an
extremely dangerous line of prejudicial speculation.
A
notable advocate (Mr Cyril Harvey QC in his thought-provoking book The
Advocate’s Devil (1958) at pp 30-31) has referred to what he calls “the
devilment inherent in us all which the presence of a jury is apt to
evoke”. Sometimes counsel, without
meaning to be unfair, allow themselves to become so carried away as to be
grossly unfair. When such unfairness
occurs against an accused person in front of a jury, the presiding judge must
step in decisively to undo or at least mitigate the harm. The sooner the judge steps in the better, for
:
“A little fire is quickly trodden
out;
Which,
being suffer’d, rivers cannot quench.”
So wrote
William Shakespeare (in King Henry VI, Part III, Act IV, scene viii). In the present case there were many instances
– none of which the Court of Appeal appear to have noticed – of harm being done
by prosecuting counsel and not being undone or even mitigated by the trial
judge.
It was
said by no less a judge than Sir Mathew Hale (in The Trial of the Witches at
Bury St Edmund’s (1665) 6 State Trials 647 at p.702) that “to condemn the
innocent, and to let the guilty go free, were both abominations”. Indeed they are, but the former is even more
to be guarded against than the latter.
And everyone’s legitimate concern is to see that “the prisoner is not
deprived of life or liberty, except under the whole of the safeguards
prescribed by law”. That is how it was
so memorably expressed in the Full Court by Mr Justice Gompertz in The King v
Kwok Leung (1909) 4 HKLR 161 at p.175.
It is of course “a disgrace to the law”, as was said in the Court of
King’s Bench by Lord Tenterden CJ in The King v Somerton (1827) 7 B&C 463
at pp 466 467, “that criminals should be allowed to escape by nice and captious
objections of form”. But the safeguards
of which Mr Justice Gompertz spoke – and with which we are concerned in this
appeal – are not mere matters of form.
They go to ensure a fair trial of the issue of whether the person
accused of being a criminal really is a criminal.
Proviso
Despite
the ability of the learned judges below, there are matters justifiably
complained of on Mrs Kissel’s behalf.
Each on its own, let alone the combined effect of all of them, amounts
to a departure from accepted norms so serious as to constitute a substantial
and grave injustice for which her conviction should be quashed unless it is
appropriate to apply the proviso to s.83(1) of the Criminal Procedure
Ordinance, Cap.221. Section 83(1) reads
:
“Except as provided by this
Ordinance, the Court of Appeal shall allow an appeal against conviction if it
thinks –
(a) that the conviction should be set aside on
the ground that under all the circumstances of the case it is unsafe or
unsatisfactory; or
(b) that the judgment of the court of trial
should be set aside on the ground of a wrong decision on any question of law;
or
(c) that there was a material irregularity in
the course of the trial, and in any other case shall dismiss the appeal :
Provided
that the Court of Appeal may, notwithstanding that it is of opinion that the
point raised in the appeal might be decided in favour of the appellant, dismiss
the appeal if it considers that no miscarriage of justice has actually
occurred.”
For the
purposes of disposing of an appeal, this Court is empowered by s.17(2) of its
statute to “exercise any powers of the court from which the appeal lies”. The court from which this appeal lies, namely
Court of Appeal, expressed itself of the view that if the question arose,
“[t]his would be pre-eminently a case for the application of the proviso”. That view must now be examined.
There
can be no dispute as to the test to be applied when the proviso is
invoked. The test was dealt with by the
House of Lords in Stirland v Director of Public Prosecutions [1944] AC 315 at
p.321 and Customs and Excise Commissioners v Harz [1967] 1 AC 760 at pp
823-824. Citing those cases, Sir Anthony
Mason NPJ, with whom the other members of this Court agreed, said in Launder v
HKSAR (2001) 4 HKCFAR 457 at p.471D-H that the test is “whether a reasonable
jury, properly instructed, would, on the evidence, without doubt convict or
would inevitably come to the same conclusion”.
By “the evidence” is of course meant the whole of the evidence properly
to be placed before the jury, with nothing wrongly excluded or wrongly
admitted.
Plainly
the test to be satisfied before the proviso can be applied is “an exacting one”
(which is how it was described by the Privy Council in Pringle v The Queen,
Privy Council Appeal No.17 of 2002, 27 January 2003 at para.37). Is that test satisfied in this case? The prosecution strenuously submits that it
is. Just as strenuously, the defence
submits that it is not.
If the
Court of Appeal had simply said that this is a case for the proviso, I would
simply say that it is not. But going so
far as to say that “[t]his was as cogent a case of murder as might be
imagined”, the Court of Appeal listed what they considered to be “a number of
central and clear features, about which there can be no reasonable
argument”. These were, they said :-
“1) [Mrs Kissel] killed [Mr Kissel];
2) shortly before his death, [Mr Kissel]
consumed a milkshake which had been prepared by [Mrs Kissel];
3) that milkshake contained drugs; so much is
self-evident not only from the testimony of [the neighbour Mr Andrew Tanzer who
took ill after consuming one of the milkshakes, the colleague Mr David Noh to
whom Mr Kissel spoke on the telephone after consuming the milkshake and the
Kissels’ domestic helper Ms Maximina Macaraeg], but also from the fact that
4) in [Mr Kissel’s] stomach were found five
drugs of which four had been prescribed for [Mrs Kissel] in the ten days before
the killing;
5) those drugs had been obtained by her from
two doctors in separate practices and she divulged to neither doctor that she
had consulted the other;
6) [Mrs Kissel] had previously put drugs into
[Mr Kissel’s] whisky;
7) [she] had searched websites for the effects
of Rohypnol and for the side-effects of drugs, including heart attack;
8) the forensic evidence that [Mr Kissel] was
lying prone on his bed when the fatal blows were struck to his head;
9) the forensic evidence that [his] body bore
no defensive wounds;
10) the killing of [Mr Kissel] occurred when [Mrs
Kissel] not only was well provided for in the event of the death of the
deceased, but when she was engaged in a liaison with a man in the USA; and
11) as to the defence(s) offered by [Mrs Kissel],
every material aspect was contradicted not only by the key factors to which we
have referred but also by the following:
i) it was central to [her] defence that she
had been attacked by [Mr Kissel] with a baseball bat. Yet that stood in
dramatic contrast to the account given by [her] to the police when she made a
report; to the police after her arrest; to each of the domestic helpers; and to
[Dr Dytham], who was told that the deceased had attacked her with his feet and
fists whilst she held a fork;
ii) an attack with a baseball bat was not
mentioned to her family members; to her domestic helpers; to Ms O'Shea, Mr Noh
or the police;
iii) [Mrs Kissel] proffered a variety of lies to
all who enquired, to explain [Mr Kissel’s] absence after the killing;
iv) it was central, too, to [her] defence that
[he] had abused her and was given to drink and drugs. Yet those who might be
expected to know of at least some of those traits or to have been told about
them by [her] - work colleagues, relatives on either side, friends of [hers] or
[his], domestic helpers - knew nothing of this suggested behaviour either from
their own observations or from [her]. The only exception is Dr Dytham who, when
[Mrs Kissel] sought to justify her need for a stronger sleeping tablet than
Ambien, was told of a physical assault - but even then there were no injuries
to [Mrs Kissel] and [Mrs Kissel] denied that the assaults involved rape and
made no mention of anal sex;
v) in none of [Mrs Kissel’s] own diary entries
was there a single record of violence or sexual abuse by [Mr Kissel];
vi) when the appellant saw Dr Dytham on 4
November, two days after she had killed [Mr Kissel], to report a suggested assault
by him, the doctor thought her to be exaggerating her symptoms; and her slow
body movements and hunched appearance was contradicted by the CCTV recordings
after the killing;
vii) the assertion of memory loss directed at
events immediately before and after the killing, but not the killing itself,
sat ill with the testimony of numerous witnesses with whom [Mrs Kissel] had
held entirely sensible conversations, including one in which she was insistent
on pursuing an arrangement for cosmetic surgery in the USA; and
viii) the allegation of attempts at suicide, to
which she said she was driven by [Mr Kissel’s] conduct, was unsupported in any
respect by her well-documented medical history and had been mentioned to none
of the doctors, her family or friends.”
The
prosecution can of course rely on the combined strength of all the material
elements of a circumstantial case. For
the purposes of making that point, it is common to liken each piece of circumstantial evidence to one
strand of a rope. Unlike a chain only as
strong as its weakest link, a rope takes its strength from all of its strands
woven together. Chief Baron Pollock, as
one sees in The Queen v Exall (1866) 4 F & F 922 at p.929, drew the
contrast between a rope and a chain when directing the jury in that case. That is by far the most famous, but by no
means the only, form of imagery available to make the point that the strength
of a circumstantial case comes from all of its components taken together. In The Belhaven and Stenton Peerage Case
(1875) 1 App Cas 278 at p.279, Lord Cairns LC made the same point by likening
each piece of circumstantial evidence to a ray of light. Even though no single ray can clear away the
darkness to be expelled, the Lord Chancellor said, a number of converging rays
may produce the necessary body of illumination.
Of course none of that is to suggest that any circumstance is immune
from such scrutiny as may be necessary for the purpose of seeing what (if
anything) it really contributes to the total strength of the circumstantial
case sought to be established.
Moreover
there is of course a world of difference between, on the one hand,
circumstances capable of supporting a conviction and, on the other hand,
circumstances that render a conviction inevitable. This is a point stressed in Fahy v
Connecticut 375 US 85 (1963), a decision on the “harmless error” rule. Chief Justice Warren, giving the opinion of
the United States Supreme Court, said this at pp 86-87 :
“We are not concerned here with
whether there was sufficient evidence on which the petitioner could have been
convicted without the evidence complained of.
The question is whether there is a reasonable possibility that the
evidence complained of might have contributed to the conviction.”
Giving
their Honours’ opinion in Chapman v California 386 US 18 (1966), Mr Justice
Black said (at p.24) that there was little, if any, difference between that
statement in Fahy’s case and requiring the prosecution “to prove beyond
reasonable doubt that the error complained of did not contribute to the verdict
obtained”. The prosecution bears the
“burden of demonstrating” the harmlessness of the error. That was stressed by Mr Justice White (at
p.296) when speaking for their Honours in Arizona v Fulminante 499 US 279
(1991). It is worth noting that
Professor Rosemary Pattenden (as one sees in The Handbook of The Criminal
Justice Process (eds M McConville and G Wilson) (2002) at p.500) uses the
expression “to cater for harmless errors” when describing the proviso’s
purpose. To say that an error is
harmless is not to deny or downplay the seriousness of the error in
itself. It is just another way of saying
that no miscarriage of justice has actually occurred in consequence of the
error because the result was inevitable and would therefore have been the same
even if the trial had proceeded properly in all material respects.
The
proviso is never lightly to be applied.
And an appellate court’s awareness of that will naturally be heightened
whenever the error is fundamental. But
whatever the nature or seriousness of the error and whatever is at stake, the
test is still one of inevitability. It
always comes down to whether the appellate court is made to feel sure that the
conviction is inevitable. Our proviso is
based on s.4(1) of the Criminal Appeal Act 1907. Delivering the judgment of the Court of
Criminal Appeal in The King v Cohen and Bateman (1909) 2 Crim App Rep 197, an
early decision on s.4(1) of the 1907 Act, Mr Justice Channell said (at p.207)
that “the Crown have to shew that, on a right direction, the jury must have
come to the same conclusion”.
Now let
us look at each of the “features” listed by the Court of Appeal in the present
case, the first being that Mrs Kissel killed Mr Kissel. She did.
But it has been clear at least since the decision of the House of Lords
in Woolmington v Director of Public Prosecutions [1935] AC 462 that the fact of
a killing by the accused person raises no presumption against him or her and
does not relieve the prosecution of its burden of proving beyond reasonable
doubt that the killing amounted to murder.
Mrs Kissel accepted that she killed Mr Kissel, but said that it was in
self-defence. There is no burden on an
accused person to prove self-defence.
Where self-defence is in issue, the prosecution has to disprove it
beyond reasonable doubt. That is why, as
the Court of Appeal recognised in The Queen v Ho Wing-sum [1987] HKLR 952, a
plea of self defence should not be called a “defence”. As appears from pp 482-483 in Woolmington’s
case, the House of Lords said that there was “ample jurisdiction” to apply the
proviso even in a capital case, but declined to do so in that case, feeling
unable to say that a conviction was inevitable.
As to
the second to fifth features, there certainly was evidence on which a
reasonable jury could feel sure that Mrs Kissel had drugged Mr Kissel by
introducing drugs into the milkshakes which she had prepared for him and the
neighbour Mr Andrew Tanzer who was visiting them at the time. But can one go so far as to say that a
reasonable jury would inevitably feel sure of that? Mrs Kissel denies it. No appellate court can know what view a
reasonable jury in a fair trial might form of her demeanour in the
witness-box. As to the inherent
probabilities, the defence is entitled to say this. If Mrs Kissel had indeed planned to drug Mr
Kissel into a defenceless state with a view to battering him to death, she
would surely have realised that drugging Mr Tanzer, too, would greatly increase
the risk of detection. The inherent
probabilities come in as we explained in Tang Kwok Wah v HKSAR (2002) 5 HKCFAR
209 at pp 222 H-J and 229 F-H. We
explained there that a jury will make their findings on the credibility and
reliability of witnesses having regard to the possibilities, probabilities and
certainties emerging from the whole body of evidence before them, convicting
only if they are ultimately sure of the accused person’s guilt. Might the truth lie in between the
prosecution’s allegation and Mrs Kissel’s account? In other words, could it be that she did lace
the milkshakes but only with a view to calming Mr Kissel down – as she said
that she had done in the past – and thinking that the effect on Mr Tanzer would
not be very noticeable? If a reasonable
and properly directed jury, proceeding only on admissible evidence at a fair
trial, considers that a reasonable possibility (to employ the expression used
by Chief Justice Warren in Fahy’s case at pp 86 87), they would not convict Mrs
Kissel of murder.
The
sixth feature is that Mrs Kissel had previously put drugs in Mr Kissel’s
whisky. It has already been pointed out
that her testimony was of having done so in order to calm him down.
As to
the seventh feature – namely that Mrs Kissel had searched websites for the
effects of Rohypnol and the side-effects of drugs, including heart attack – it
is necessary to point to two things which she said in the course of her
testimony. First, Dr Dytham had
prescribed Rohypnol for her, and she wanted to find out what it was. Secondly, she was contemplating suicide, and
if she killed herself she would not want her children to know that their mother
had taken her own life. Before leaving
the question of drugs found in Mr Kissel’s stomach, there is one more fact to
be mentioned. It is that the forensic
pathologist Dr Lau Ming-fai who performed the autopsy on Mr Kissel said that
although those drugs had probably impaired his “conscious level” at the time of
the fatal incident, the degree of such impairment could not be determined.
The
eighth and ninth features may be considered together. Scientific evidence that Mr Kissel was lying
prone on the bed when the fatal blows were struck would lend powerful support
to the prosecution’s case. But despite
how it was put by the Court of Appeal, it appears from the summing-up that what
the prosecution’s expert actually said was no more than that it was likely that
Mr Kissel had been sitting or lying down near to the end of the bed when the
fatal blows were struck. Moreover, as
was said in the High Court of Australia by Mr Justice Dixon (later Chief
Justice Dixon) in Hocking v Bell (1945) 71 CLR 430 at p.496, scientific evidence
“is no less matter of fact within the province of the jury than is other
evidence, and it is the jury’s function to estimate the reliance to be placed
on scientific witnesses, however eminent”.
That was said in a dissenting judgment which was eventually vindicated
by the Privy Council in a decision reported at (1947) 75 CLR 125. What confidence they place in the accuracy
and effect of expert evidence is always a matter for the jury as the sole
judges of fact. And as for the absence
of defensive wounds on Mr Kissel’s body, it is not irreconcilable with Mrs
Kissel’s account.
As to
the tenth feature, the fact that a wife would be well provided for in the event
of her husband’s death and was engaged in a liaison with another man enables
the prosecution to point to a possible motive for her to murder her
husband. Upon a fair consideration of a
case like the present, care must be taken to see that the evidential value of
such a motive is neither, on the one hand, downplayed nor, on the other hand,
exaggerated.
There
are, in fairness to the defence, several points to be made on the eleventh and
final feature. They are these. True it is that the defence cannot deny the
significance of Mrs Kissel’s omission to tell her family members, her domestic
helpers, Ms O’Shea or the police that Mr Kissel had attacked her with a
baseball bat. But a balanced evaluation
of this omission can only be made in the context of Mrs Kissel’s testimony of
memory loss. And it is difficult to understand
the Court of Appeal’s view that her assertion of memory loss sat ill with her
having held sensible conversations.
Memory and the ability to hold sensible conversations are different
things. The generality of the Court of
Appeal’s pronouncement that she “proferred a variety of lies to all who
enquired, to explain [Mr Kissel’s] absence after the killing” renders its
weight difficult to assess. It is true
that Mrs Kissel did not tell anybody about Mr Kissel’s abusive behaviour and
did not record such behaviour in her diary.
But some people are forever complaining while others tend to suffer in
silence. And some people unburden
themselves in their diaries while others do not. Subject to one qualification, there is some
significance in Dr Dytham’s view that Mrs Kissel was exaggerating her symptoms
and that her slow body movements and hunched appearance were contradicted by
the CCTV recordings after the killing.
The Court of Appeal considered it significant that Mrs Kissel had not
revealed to anyone that she had attempted suicide. But where is the evidence that she would want
anybody to know anything of the kind?
Her testimony, it will be remembered, was that if she killed herself she
would not want her children to know that their mother had taken her own life. Cynical evasion or a cry from the depth of
despair?
Coming
now to the qualification which has to be placed on the significance of Dr
Dytham’s view that Mrs Kissel was exaggerating her symptoms, it is this. It appears uncontroversial that damaged
skeletal muscle releases the enzyme called creatine kinase (“CK”) into the
bloodstream. When Mr King re-examined Dr
Dytham, he drew her attention to the CK levels found when Mrs Kissel’s blood
was tested in hospital on the morning of 7 November 2003, namely 4,500 at 4
o’clock and 3,058 at 9 o’clock. Dr
Dytham accepted that the normal range was 24 to 180. And she said that those elevated CK levels
were indicative of skeletal muscle injury and were relevant to a consideration
of whether or not Mrs Kissel had exaggerated her pain. This is a further illustration of the caution
called for when considering features such as those listed by the Court of
Appeal. Also in this connection, it
should be noted that Dr Dytham conceded that she might have missed some of Mrs
Kissel’s injuries because she ie Dr Dytham was frustrated at how long the
examination was taking and had other patients to see. As mentioned earlier, Mrs Kissel’s father
testified that when he saw her on 5 November 2003 she was wearing a strap
around her waist and had a split lip.
Compared
to how much they said on other matters, relatively little was said by the Court
of Appeal on what might be called the question of the baseball bat and the
fatal ornament. There are legitimate
points on both sides of this question.
These are perhaps weightier on the prosecution’s side than on the
defence’s. But it is by no means all one
way.
The
prosecution says that the baseball bat appeared in mysterious circumstances
well into the trial. Called by the
defence, Mrs Kissel’s half brother Dr Brooks Keeshin gave evidence of finding the
baseball bat lying on the floor behind a chest of drawers in the master bedroom
when he visited the flat with Mrs Kissel’s solicitor Mr Simon Clarke on 9
November 2003. That was one week after
the killing. It followed the release by
the police of the premises which they had at one stage kept sealed as a crime
scene. Dr Keeshin said that he and Mr
Clarke examined the baseball bat but noticed nothing on it. Then, Dr Keeshin said, Mr Clarke placed the
baseball bat inside a pillowcase. Dr
Keeshin’s understanding was, he said, that Mr Clarke would take the baseball
bat to his office.
It is
convenient to continue by setting out a passage from the summing-up quoted in
the prosecution’s printed case. This
passage reads :
“Of course, members of the jury,
we have received no evidence of the whereabouts of the baseball bat thereafter
until the time it was handed over to the police on 21 July 2005 in this
courtroom by a representative of the solicitors representing the defendant. Evidence in respect of the baseball bat and
the issue of contact with the base of the ornament was adduced by the
prosecution in rebuttal after the closure of the defence case. Mr Clarke has been in court throughout this
trial, yet he was not called to testify to the discovery of the baseball bat,
why it is that he took it upon himself to take possession of it, and if it be
the case, why he removed it from the premises, whom it was that he told about
its discovery and removal, and what became of the baseball bat in the period
between 9 November 2003 and 21 July 2005.
Of that we know nothing at all.”
As to Mr
Clarke not having been called to testify, it should in fairness to the defence
be noted that the prosecution did not challenge Dr Keeshin’s testimony about
the finding of the baseball bat.
The
baseball bat and the base-plate of the fatal ornament were examined by the
government chemist Dr Wong Koon-hung.
His evidence, helpfully to the prosecution, was that he found neither
any transfer of metal traces from the base-plate to the baseball bat nor any
transfer of wood or paint from the baseball bat to the base-plate. Although he could not explain how the
base-plate was distorted into a curve, his conclusion, helpfully to the
prosecution, was that the baseball bat had not come into any significantly
forceful contact with the base-plate and had not caused its distortion.
How
then, the defence is entitled to ask, did the base-plate come to be
distorted? There was evidence that it
used to be flat, and there was no evidence of it having been distorted prior to
the fatal incident. That the base plate
had been deformed by contact with something prior to contact with Mr Kissel’s
head was attested by the curved shape of the lacerations to his skull. The forensic pathologist Dr Lau proceeded on
the basis that the base plate was already in a curved shape when the blows to
Mr Kissel’s head were struck. He did not
think that the human skull is hard enough to distort lead like this. As to shape at least, the government chemist
Dr Wong said that a curvature of the shape found on the base-plate could have
been caused by it being struck with an elongated cylindrical object.
It would
appear that the defence disputes the objectivity of some of Dr Wong’s
evidence. As the trial judge reminded
the jury, Mr King had suggested in cross-examination to Dr Wong, who denied it,
that he was anxious to provide the police with some basis to argue that the
baseball bat never came into contact with the base-plate. And even where an expert is wholly objective
as he ought to be, there remains the question of whether he has really arrived
at the truth or merely fancies that he has.
It is to be remembered in regard to the proviso that the standard jury
directions on expert evidence include directions to the following effect. If after careful consideration, the jury do
not accept an expert’s evidence, they do not have to act on it. Indeed, even unchallenged expert evidence
need not be accepted by them.
None of
that is to deny that scientific evidence for the prosecution has a very
important role to play in convicting the guilty. But it cannot be denied that forensic science
has been known to cause or contribute to the conviction of innocent persons –
sometimes partially redeeming itself by evolving so as eventually albeit
belatedly to exonerate its innocent victims.
On the
wider question of whether Mrs Kissel had been an abused wife for a number of
years, there was evidence that she was once seen in 2001 wearing a brace around
her ribs and that in 2002 she was seen on one occasion with her foot and ankle
in a cast and on another with a black eye.
On those three occasions, she had attributed the brace, the cast and the
black eye respectively to accidents. At
the trial, however, the defence relied on them as support for her testimony of
abuse at her husband’s hands. Had she,
out of embarrassment, been covering up abuse initially? So the defence says. Or was she making up abuse subsequently? So the prosecution says. The truth of such a matter is naturally a
jury question to be answered at the end of a fair trial.
Just as
the material circumstances relied upon by the prosecution are to be taken as a
whole, so must the prosecution’s case as a whole be considered alongside the
defence’s case rather than in isolation.
In the witness box, Mrs Kissel put forward a case of self-defence. And she is entitled to ask rhetorically why,
if she had indeed planned a murder, she was left with a dead and battered body
which was highly likely, sooner or later, to be discovered and traced back to
her? More or less the only response that
the prosecution can offer is that people behave oddly sometimes. Judging by their verdicts, it would seem that
juries are often, but not always, satisfied with such a response. The prosecution is reduced to offering much
the same sort of response to the question of why Mrs Kissel would resort to the
extreme course of murder rather than the infinitely more natural and less risky
course of suing for divorce, child custody and financial provision.
Of course
the prosecution, too, is entitled to ask a rhetorical question. If Mrs Kissel was defending herself when she
killed Mr Kissel, why did she not report the matter to the police and tell them
that it was self-defence? In answer to
that question, it could be said that Mrs Kissel might indeed have been
suffering from memory loss. Or it could
be said that she might have panicked. It
is quite conceivable that a person who had taken a human life would panic even
if the killing was in self-defence. And
this would be especially so if the person who did the killing had been, or
might be thought to have been, the initial aggressor.
There is
of course no reason in principle why the proviso cannot be applied to affirm a
conviction for murder. Indeed, as we
have seen, the House of Lords said in Woolmington’s case that there was ample
jurisdiction to apply the proviso even in a capital case. This Court has twice applied the proviso to
affirm a conviction for murder : first in Lam Chi Kwong v HKSAR (2008) 11
HKCFAR 623 and then in Cheung Chi Keung v HKSAR, FACC No. 9 of 2008, 12 March
2009. But each of those two cases is
materially and obviously different from the present case.
In Lam’s
case the appellant stabbed his former girlfriend to death. Let us look at the circumstances in which –
and the reasons why – the proviso was applied to affirm his conviction for
murder despite misdirection by the judge of the jury. Those circumstances and reasons were stated
thus in (paras 31-33 of) a judgment given by one member of the Court and
concurred in by all the other members of the Court :
“ On
the evidence in the present case, would a reasonable and properly directed jury
inevitably have concluded that the prosecution had (i) proved intent to kill or
at least cause really serious injury and (ii) negatived provocation?
As to intent, the evidence was that the
appellant, using a knife, killed the victim by stabbing her in the torso three
times with substantial force, twice from the back and once from the front. Each time the blade entered the chest
cavity. The wound from the front was 3
cm deep. One of the wounds from the back
was 7 cm deep, and the other was 9 cm deep.
On that evidence, a reasonable and properly directed jury would, in my
view, inevitably have concluded that the prosecution had proved at least intent
to cause really serious injury.
That
leaves provocation. On the appellant’s
own testimony, what ultimately caused him to lose his self-control was the
victim’s statement to the effect that he was useless, worthless and inferior in
all respects to her new boyfriend. The
last question and answer in the appellant’s examination-in-chief were :
‘Q: Would you have stabbed her if she didn’t say those words to you?
A: Absolutely
not.’
Also on
the appellant’s own testimony, the victim had said those words in response to
his having asked her repeatedly what was so good about her new boyfriend. There is nothing unnatural about a woman
blurting out something of that sort when pressed like that. Quite simply, I do not see how a reasonable
jury could possibly feel otherwise than sure that no man possessed of ordinary
self-control, whether of the appellant’s age or indeed any age, would have
reacted to such a response by doing as the appellant did. After all, the realism and common sense with
which jurors are expected to approach their task must be attributed to the
proviso’s reasonable hypothetical jury.
On the evidence, a reasonable and properly directed jury would, in my
view, inevitably have concluded that the prosecution had negatived
provocation.”
Cheung’s
case was a case in which the appellant and another man (named Wu) had kidnapped
a boy of 13. What were the circumstances
in which – and the reasons why – the proviso was applied to affirm his
conviction for murder despite misdirection by the judge of the jury? Those circumstances and reasons were stated
thus in (paras 23-26 of) the Court’s judgment :
“ What
are the material facts as they emerge from the appellant’s own evidence? He handed Wu a stone after Wu had told him
that the hammer had broken and asked him for a bar or wooden pole. And that was after he himself had punched the
victim, hit his head with a hammer and changed places with Wu after Wu had
asked him to hit the victim’s head again.
After he handed Wu the stone, he continued to drive the van in which the
victim was being abducted. He continued
to drive the van even when he heard the victim’s shouts, banging noises and the
victim saying to Wu, ‘I recognise you, uncle’.
The
proviso’s reasonable hypothetical jurors are taken to possess the realism and
common sense with which jurors are expected to approach their task. Wu’s use of the hammer on the victim followed
the appellant’s use of it to hit the victim on the head. No reasonable juror approaching his or her
task with realism and common sense could, in the circumstances, have attached
any credence whatsoever to the notion that the appellant believed that the
hammer had broken while being used by Wu merely to scare the victim rather than
while it was being used by Wu to hit the victim. Nor, in the circumstances, could any
reasonable juror so approaching his or her task have attached any credence
whatsoever to the notion that the appellant did not know when he handed the
stone to Wu that it was meant as weapon with which to resume the assault on the
victim. Let it not be forgotten that he
handed the stone to Wu after the hammer had broken and Wu had asked him for a
bar or wooden pole.
Such
were the material facts which emerged from the appellant’s own evidence that it
is difficult to imagine that the attack on the victim, who had recognised Wu,
could possibly have been carried out otherwise than with intent to kill the
victim so as to silence him forever. But
even leaving that aside, it is fanciful to imagine that an attack such as this
one could possibly have been carried out with anything less than at least
intent to cause the victim really serious injury.
In any
case, the appellant and Wu were acting pursuant to a joint enterprise to kidnap
the victim and obviously to use considerable, repeated and escalating violence
to stop him, a frightened and desperate boy of 13, from struggling and shouting
while he was being abducted by them, a pair of grown men. At the very least, the appellant must have
foreseen, as a possible incident of that joint enterprise, a lethal attack by
Wu on the victim after he, having himself attacked the victim, changed places
with Wu and handed Wu a stone when Wu announced that the hammer had broken and
asked him for a bar or wooden pole. Such
foresight would suffice to make him guilty of murder under the doctrine of
joint enterprise.
A
reasonable and properly directed jury would inevitably have convicted the
appellant of murder.”
Mr Lam
and Mr Cheung had each by his own testimony admitted serious and dangerous
criminal conduct on the relevant occasion : at least manslaughter in the case
of Mr Lam and kidnapping furthered by horrific violence in the case of Mr
Cheung. Each sought to avoid a
conviction for murder by certain denials and assertions which fell within a
small compass. By marked contrast,
applying the proviso in the present case would involve the wholesale dismissal
out of hand of Mrs Kissel’s testimony in regard not only to the circumstances
of the killing but also the events immediately leading up to it and, indeed,
the history of her marriage.
One of
the cases in which this Court declined to apply the proviso is Chan Chuen Ho v
HKSAR (1999) 2 HKCFAR 198. Mr Chan was
found by the police in possession of a large quantity of heroin. The jury would have been perfectly entitled
to infer that he was trafficking in them.
But the matter was not left to them on that basis. Instead they were directed in a way which
might have led them wrongly to believe that possession of those dangerous drugs
raised a presumption of trafficking in them.
They convicted Mr Chan of trafficking.
The Court of Appeal, thinking that such a conviction was inevitable,
affirmed it. When the case reached us,
we declined to apply the proviso.
Instead we substituted a conviction for the lesser offence of simple
possession of dangerous drugs. This was
because, strong as the evidence of trafficking was, there still remained a
possibility that a properly directed jury would have convicted only of that
lesser offence. In the false accounting
case of Chan Kar Leung v HKSAR (2006) 9 HKCFAR 827 we declined to apply the proviso
because there was a live issue as to dishonesty and we felt unable to say that
a properly directed jury would inevitably have resolved that issue against the
appellants so as to convict them. And in
the drug trafficking case of Tam King Hon v HKSAR (2006) 9 HKCFAR 206 we
declined to apply the proviso even though the appellant had to accept that the
prosecution’s case was strong.
Some of
the cases illustrate the sort of circumstances in which the proviso is properly
to be applied under the test of inevitability.
Others illustrate the sort of circumstances in which the proviso cannot
properly be applied under that test. The
test is always the same though the circumstances vary.
While
the prosecution accepts that the test is one of inevitability, their printed
case contains the statement that “[t]he view of the jury which had tried the
case must be a factor, albeit not conclusive, to be taken into account in
considering what the view of the hypothetical reasonable jury would be”. Can the fact of a guilty verdict at an unfair
trial provide any support for an argument that a guilty verdict would be
inevitable at a fair trial? It
cannot. Quite simply, the argument that
it can moves in a circle. What Mr
Justice Chan PJ said in Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113 at p.132H-J
is this :
“Although the test anticipates the
view of a hypothetical reasonable jury, the view of the jury which had tried
the case must be a factor – albeit not conclusive – to be taken into account in
considering what the view of the hypothetical reasonable jury would be. The fact that a particular jury only reached
their verdict by a bare majority of 5 to 2 would indicate that two jurors had
entertained some doubts about the guilt of the accused.”
So the
guilty verdict was not taken into account in favour of the prosecution on the
question of the proviso. Rather was the
verdict’s lack of unanimity taken into account in favour of the defence on that
question. In the present case, the guilty
verdict is neutral for proviso purposes.
As explained above, the fact of the verdict being one of guilty cannot
help the prosecution. And being
unanimous, the verdict contains nothing of help to the defence either. The proviso exercise in this case proceeds on
a clean slate.
Drawing
all the threads together, the position may be summarised thus. Mrs Kissel killed Mr Kissel. That much is not in dispute. But was the killing certainly murder or might
it have been in self-defence? There is
acute controversy over what really went on between Mr and Mrs Kissel over the
years and right up to the time of the fatal incident. As to what happened after Mr Kissel had been
killed, it is clear that Mrs Kissel concealed the body. But is it certain that she did that to hide a
murder? Or might it be that she panicked
and tried to hide the fact of the killing even though it had been in self
defence? There is the question of memory
loss on Mrs Kissel’s part. Is it
certainly a pretence or might it be genuine?
As to dissociative amnesia, it could be said with some force that even a
killing in self-defence and the concealment of the body thereafter – especially
in circumstances like these – would be highly traumatic. The prosecution’s case, being circumstantial,
can to some extent be judged on the papers.
But Mrs Kissel’s case is based on her testimony. And judging her credibility on paper is
highly difficult to say the least.
Mr
Zervos for the prosecution has, most ably as always, stressed all the
circumstances capable of being woven into a circumstantial case of murder. Equally Mr McCoy for Mrs Kissel has, also
most ably as always, stressed all the circumstances capable of providing
support for her testimony that it was self defence. The question is not whether a reasonable
hypothetical jury that had sat through a fair trial free from any material
irregularity and had been properly directed could, or even probably would,
convict. It is whether such a jury would
inevitably feel sure that Mrs Kissel was lying from start to finish and that
she had planned and carried out a coldly calculated murder.
In
Barrow v The State [1998] AC 846 the Privy Council refused to apply the
proviso, saying this : “It is true that the case was a strong one. But everything turned on credibility”. Barrow’s case was cited by us in Yuen’s case
(at p.133D) for that point. In Yuen’s
case the majority in the Court of Appeal were prepared to apply the proviso,
but we declined to do so. The
involvement of credibility does not preclude applying the proviso to affirm a
jury’s verdict, but may render such a course especially difficult. Jurors do not give reasons. Where everything turns on credibility and the
jury have been deprived of the opportunity to assess the accused person’s
credibility under fair conditions, concluding that such deprivation was
irrelevant to the result is naturally problematical. Mrs Kissel’s case wholly depended on her
credibility. Her marital infidelity was
relevant to a possible motive for murdering her husband. But if her account of the history of the
marriage is true, some people might say that she had to some extent been driven
to that infidelity. So there are two
sides to the question. Moreover these
are courts of law, not courts of morals.
In a
court of law, Mrs Kissel, having no previous conviction, is of good
character. One of the directions that
the reasonable hypothetical jury must be treated as having received is the
standard “good character” direction.
This is that Mrs Kissel’s good character (i) makes it more unlikely than
otherwise that she would commit murder and (ii) is to be taken into account in
her favour when deciding what weight to give her testimony. Another direction that the reasonable
hypothetical jury must be treated as having received is the “defence evidence”
direction dealt with by this Court in Sze Kwan Lung v HKSAR (2004) 7 HKCFAR 475
at pp 486J-487A. By one form of words or
another and in one way or another, the message must be conveyed to the jury
that even if they do not positively believe the evidence for the defence, they
cannot find an issue against the accused contrary to that evidence if it gives
rise to a reasonable doubt on that issue.
What
really happened : was it what the prosecution says, what the defence says or
something in between? How the
prosecution normally proves its case was neatly put by Lord Justice Lloyd
(later Lord Lloyd of Berwick) speaking for the English Court of Appeal in The
Queen v McIlkenny (1991) 93 Crim App Rep 287.
It is done, he said at p.312, “by calling witnesses to give oral testimony
in the presence of the jury”. As Lord
Wright said in Mechanical and General Inventions Co. Ltd v Austin [1935] AC 346
at p.373, the appellate court “is never the judge of fact in a case where the
constitutional judge of fact is the jury”.
That may be subject to the special circumstances where, as in Daniel v
Metropolitan Railway Co. (1868) LR 3 CP 591, nothing is left to the jury and
there is a reservation by consent that means, as the Court of Exchequer Chamber
said (at p.593), that the appellate court “is to find a verdict upon the evidence
as a jury should have done”. But no such
circumstances can arise in regard to the proviso.
Mrs
Kissel’s testimony was lengthy. The
following is a sample of it under cross examination :
“Q. He was unable to defend himself because you had rendered him
defenceless by drugging him, Mrs Kissel.
A. No.
No. That is not what
happened. That is not what
happened. We had a fight, we had a fight
and he used that bat, telling me he was going to kill me with that bat. He - - he kept repeating it, and I defended
myself from him.
[PROSECUTING
COUNSEL] : Is that a convenient moment, my Lord?
COURT :
Yes, if it’s convenient for you.
[PROSECUTING
COUNSEL] : Yes.
COURT :
Mrs Kissel, we’re going to adjourn now and resume your testimony tomorrow. As I’ve told you on previous occasions …
A. He was going to kill me, he was going to
kill me. Oh, God. He was going to kill me.”
Applying
the proviso would be to pronounce that Mrs Kissel must have been lying, so
pronouncing without having seen or heard her.
Dealing with whether pleaded averments would be sufficient if proved,
Lord Normand pointed out in Jamieson v Jamieson [1952] AC 525 at p.536 that
what appears on paper may present a very different aspect when it has been
developed in evidence though the evidence “does not exceed by a single word the
bounds set by” the pleadings. Similarly,
the impression that one gets from reading a transcript may not be the
impression which one would have got upon receiving the testimony at first-hand.
Whether
or not the proviso should be applied in any given case is to be decided with
reference to the whole of its relevant circumstances. In the present case, the relevant
circumstances call for adherence to the following conditions. First, a reasonable hypothetical jury will
receive only such evidence as it is proper to adduce before them. Secondly, they will see and hear Mrs Kissel
in the witness-box. Thirdly, she will be
cross examined searchingly but not unfairly.
Thirdly, they will be properly directed.
Finally, the trial will be free from any material irregularity. Under those conditions, can an appellate
court (not being the constitutional tribunal of fact and looking at the matter
only on the papers) say that a reasonable hypothetical jury (notionally
representing the constitutional tribunal of fact that receives the oral
evidence at first-hand) would inevitably convict Mrs Kissel of murder? In all the circumstances and having regard to
the relevant arguments and counter arguments, my answer to this question is
“No”. The proviso is an instrument of
justice. As there have been in the past,
there are likely to be in the future many cases in which it would be
appropriate to apply the proviso. But the
present case is not such a case.
Accordingly I would allow the appeal to quash the conviction.
Discharge
or retrial?
Should
Mrs Kissel be discharged or retried? The
prosecution asked for a retrial in the event of the appeal being allowed. And although Mr McCoy made it clear that the
defence did not consent to a retrial, he acknowledged the strength of the
arguments in favour of a retrial and realistically refrained from offering any
argument against one.
In Hong
Kong the power to order the retrial of an accused person was introduced by the
enactment of s.78A(3) of the Criminal Procedure Ordinance 1899. This power was first invoked (unsuccessfully
as it happens) in Cheng Hing U v The King (1935) 27 HKLR 53. Since then it has often been invoked, sometimes
with success and sometimes not. The
following three points emerge from what was said in the Privy Council by Lord
Diplock in Au Pui Kuen v Attorney General [1979] HKLR 16 at p.19 and in this
Court by Lord Woolf in James Henry Ting v HKSAR (2007) 10 HKCFAR 632 at pp 651G
653H. First, whether or not there should
be a retrial is a matter of discretion.
Secondly, it depends on what justice requires. And thirdly, it may involve balancing a
number of factors some of which may weigh in favour of a retrial and some of
which may weigh against it.
Despite
how long ago the fatal incident took place, the time which Mrs Kissel has
already spent in custody and the fact that she now appears to be in very poor
health, I regard it just and proper, all things considered, that she be retried
on a fresh indictment for murder. I
would so order. What happens on that
indictment is in hands other than those of this Court.
Custody
or bail?
If Mrs
Kissel seeks bail, whether she be admitted to bail, or remanded in custody,
pending retrial should be decided in an application to a judge of the retrial
court. I would order that, subject to
any order for bail made in such an application (which no doubt could be brought
on and dealt with expeditiously), Mrs Kissel be remanded in custody pending
retrial.
Costs
The
final question is that of costs. I would
direct that costs be dealt with on written submissions.
Conclusion
In the
result and with an expression of my indebtedness to Mr McCoy and Mr Zervos for
their assistance, I would : (i) allow the appeal to quash Mrs Kissel’s
conviction; (ii) order that she be retried on a fresh indictment for murder;
(iii) order that, subject to any order for bail that a judge of the retrial
court may make, she be remanded in custody pending retrial; and (iv) direct
that costs be dealt with on written submissions. As to the disposal of this appeal, therefore,
I am in complete agreement with the other members of the Court.
Chief
Justice Li:
The
Court unanimously allows the appeal, quashes the conviction and orders a
retrial. The Court further orders that
the appellant be remanded in custody pending retrial. Any application by the appellant for bail
should be made to the Court of First Instance.
The Court gives the directions on the filing of submissions as to costs
set out in the concluding paragraph of the joint Judgment.
(Andrew Li) (Kemal Bokhary) (Patrick
Chan)
Chief Justice Permanent Judge Permanent
Judge
(R A V Ribeiro) (Sir Anthony Mason)
Permanent Judge Non-Permanent Judge
Mr
Gerard McCoy SC, Mr Alexander King SC and Ms Emma Tsang (instructed by Messrs
Mallesons Stephen Jaques) for the appellant
Mr Kevin
P Zervos SC, Mr P S Chapman (appeared on 12-14 January 2010) and Ms Ada Chan
(of the Department of Justice) for the respondent
【明報專訊】7年前的美林證券集團高層簡崇諾疑被妻謀殺案,明年1月重審。美籍被告Nancy Kissel與控方昨以本港擅打謀殺案的資深大律師不多為由,同獲高等法院批准聘用英國御用大律師負責案件,據悉Nancy Kissel的御狀將主力代表她向法庭申請永久終止聆訊,若申請成功,她或可免受審。
高院署理首席法官鄧國楨昨批准46歲被告Nancy
Kissel聘用Edward Fitzgerald為其謀殺罪抗辯,律政司亦獲批聘用David Perry作檢控。兩人均為英國御用大律師,2008年雙雙獲泰晤士報選為英國100大最佳資深大律師(Times Law 100)。
雙方今次罕有地同時獲准請「外援」,兩方均指案情複雜困難、證人眾多,且涉及挑釁、減責殺人、傳聞證供等法律觀點爭辯,必須交由資深大律師處理;惟本港曾處理謀殺案的刑事資深大律師不多。
美婦涉殺夫 申永久終止聆訊
律政司副刑事檢控專員薜偉成指出,本地資深大律師中,只有約20人曾打謀殺官司,部分人經驗是「一單起、兩單止」,加上Nancy Kissel於05年首次受審及上訴時,已聘用過兩三名本地資深大律師,令律政司可選擇的檢控官買少見少。
控方案情指出,03年香港爆發SARS期間,Nancy Kissel赴美避疫,與電器維修員發展婚外情,其夫美林證券集團高層簡崇諾(Robert Kissel)獲悉後,同年11月3日向她提出離婚,當日被告涉於大潭陽明山莊家中讓夫喝下「迷魂奶昔」,再以金屬雕塑重擊頭顱殺死丈夫。兩日後被告安排工人將裹屍地氈運到儲物室,最後遭警方揭發。
【案件編號:HCMP1545、1550/10】
Retrial
香港文匯報訊(記者 杜法祖)美林證券集團前亞太區常務董事簡崇諾(Robert Kissel)2003年在陽明山莊被殺案,本在高院被裁定謀殺罪成的妻子Nancy Kissel早前上訴得直,獲終審法院撤回定罪,將案發還高院重審。案件在高院經重審47天後,陪審團日前退庭商議未有結果,至昨午才一致裁定被告謀殺罪名成立,依例判處終身監禁。被告親母及繼父在庭外認為審訊公平,但不明陪審團為何得出罪成結果,指可能是出於文化差異。
再一次被裁定殺夫罪成的41歲被告Nancy Ann
Kissel,昨聞判後表現平靜。由7女2男組成的陪審團經過2天1夜退庭商議,昨一致裁定被告謀殺罪成。法官麥機智為答謝陪審團連日的努力,下令給予雙倍的資助金。辯方希望法庭考慮醫療報告指被告於案發時受抑鬱症影響。但麥官指法庭別無選擇,只能依例判處被告終身監禁。
毒奶昔行兇 案件轟動一時
案件發生於2003年11月2日,被告在陽明山莊將預先向醫生取得的4種安眠藥,混入奶昔予丈夫簡崇諾(40歲)飲用,再以金屬擺設襲擊丈夫的頭部致死。事後將死者屍體以地氈包裹,安排寓所內的職員將之運往屋苑的儲物室內。事後死者的同事見死者未有上班而報警,警方上門調查後將被告拘捕。案件轟動一時,曾於美國被改篇成小說及電視劇。
Appeal
against retrial verdict
新報訊】美林證券高層簡崇諾2003年被人發現以地氈包裹,伏屍陽明山莊豪宅儲物室內,其妻Nancy Kissel(圓圖)其後被控,指其落藥於奶昔把丈夫迷暈後,再以金屬擺設扑頭擊殺,2005年簡妻被裁定謀殺罪成,判囚終身,後經終審法院發還案件重審,重審之後仍然謀殺罪成,Nancy Kissel早前再作上訴,上訴庭昨頒下判詞,裁定她敗訴,維持原判。 上訴庭3名法官認為上訴人無庸置疑殺害丈夫,儘管她指稱經常被丈夫虐打,但她卻從未向朋友或同事透露,也沒有記錄在日記中,再者她聲稱自己曾企圖自殺,卻沒有醫生證據支持,其親友也未曾聽聞過。
指控方的結案陳辭對她不公平。
上訴人雖指原審法官向陪審團作了兩小時半的引導,而且在總結辯方案情時說話速度更達每分鐘148個字,所以認為對上訴人不公平。但上訴庭卻認為原審法官已作出詳盡、清晰及專業的引導,逐點作出分析,其說話速度不算過快,其間雖然沒有小休,但他在早上作出引導,已確保陪審團的精神狀況良好。
上訴庭副庭長楊振權為這宗歷時已10載的謀殺案下判決,表示已充份考慮案情及上訴人代表大律師的陳詞論點,認為重審時的有罪裁決穩妥,陪審團亦得到法官恰當引導,不應推翻定罪裁決。女被告Nancy Kissel聞悉上訴失敗,表現平靜,未有特殊反應。
控方案情指,美林證券環球資本投資亞太區董事總經理簡崇諾(Robert Peter Kissel,40歲),曾懷疑妻子Nancy Kissel(47歲)有外遇,想與被告離婚。2003年11月2日事發當晚被告Nancy以混藥的奶昔給丈夫簡崇諾飲用,簡被迷暈,被告拿出屋內金屬擺設,多次重擊丈夫頭部,最終令簡頭骨爆裂慘死。2005年案件審結,Nancy被裁定謀殺罪成。她一直上訴,最終上訴至終審法院,當時終院下達判詞,指控方原審時不適當地要求Nancy(上訴人)解釋申請保釋的內容,而主控盤問方式咄咄逼人,可能對上訴人不公平,判被告上訴得直,案件發還重審。
案件重審後,Nancy再被裁定謀殺罪成。她日前再次上訴,案件編號:CACC 66/2012
主審:楊振權上訴庭副庭長、朱芬齡上訴庭法官、
彭偉昌法官
Costs(appeal)
2014年03月14日 (04:04 PM)
前美林集團全球資本投資部常務董事簡崇諾,被妻子Nancy Kissel於奶昔落藥迷暈後殺害一案,Nancy Kissel重審再被判終身監禁,她早前向上訴庭提出上訴被駁回,律政司指其上訴亳無理據,要求她支付律政司訟費。
她的律師反對,指她至今已被囚10年,無任何收入,亦因為謀殺丈夫而不獲丈夫的人壽保險賠償,已經用盡所有積蓄支付律師費,雖然她成功推翻第一次審訊的謀殺罪及取回訟費,但支付律師費後只剩數千元。
最後上訴庭指案情特殊及基於事主經濟狀況,不應承擔律政司訟費,拒絕律政司申請。
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