CACC 414/2005
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 414 OF 2005
(ON APPEAL FROM HCCC NO. 113 of 2004)
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BETWEEN
HKSAR
Respondent
and
NANCY ANN KISSEL
Appellant
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Before: Hon Stuart-Moore VP, Stock JA and Wright J
Dates of Hearing: 14 – 18, 21, 29 - 30 April, 2 and 6-7 May 2008
Date of Judgment: 6 October 2008
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J U D G M E N T
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The Judgment of the Court (to which each member has contributed):
TABLE OF CONTENTS
Background
Para. 1 - 5
Overview
7 - 22
BACKGROUND
1. On 19 May 2005, the appellant, Nancy Ann Kissel, was arraigned before Lunn J on a count which alleged that on 2 November 2003 she murdered her husband, Robert Peter Kissel (the deceased). She pleaded not guilty and on 7 June 2005, following several days of legal argument, mainly concerned with admissibility, a jury was duly sworn.
2. The trial involved lengthy and sometimes complex evidence. We were informed that the prosecution called fifty witnesses to give oral testimony. The statements of a further eighteen witnesses were read pursuant to the provisions of s. 65B of the Criminal Procedure Ordinance, Cap. 221 and the depositions taken on commission in the United States of America of four witnesses were read to the jury. Between them, the prosecution witnesses produced a total of over four hundred exhibits. Evidence called by the defence consisted of the appellant’s oral testimony and twelve other witnesses who produced a total of fifty-seven exhibits.
3. After the evidence had concluded on 24 August 2005, counsel on both sides each made a lengthy address to the jury and the summing up, which spanned three days, concluded at 12.30 pm on 1 September 2005. The jury returned with a verdict of guilty at 8.27 pm, following which the judge imposed a sentence of life imprisonment.
4. The appellant sought leave to appeal against conviction by a notice dated 28 September 2005. Subsequently, as the result no doubt of a number of changes in her legal representation, the grounds of appeal were amended at various stages. Even during the appeal hearing itself, completely new issues were still being raised on the appellant’s behalf by Mr Gerard McCoy SC. This, in turn, necessitated an adjournment of some days in order to enable Mr Kevin Zervos SC for the respondent to have sufficient time in which to respond.
5. In the light of the arguments we have heard, there are four grounds on which we consider that leave should be given, namely, grounds 5 and 6 (cross-examination), ground 8 (hearsay) and ground 10 (provocation). Accordingly, we shall grant leave and treat the hearing as the appeal.
PRINCIPAL ISSUES AT TRIAL
6. It was the case for the prosecution that the appellant killed the deceased in what amounted to a premeditated murder albeit she had apparently given little thought to the disposal of the body until after the deed had been done. Prior to trial, the prosecution had powerful circumstantial evidence that the appellant had killed the deceased but there was no direct evidence of this. When eventually it emerged at trial that there was no dispute that she had killed the deceased, the two principal issues which remained to be decided by the jury related to self-defence and provocation. The former was the appellant’s defence. The latter was properly left by the judge as an issue to be decided by the jury (against the wishes of Mr Alexander King SC who at that time was representing the appellant) after the judge had concluded that there was sufficient evidence on the testimony given by the appellant for provocation to be considered.
CASE FOR THE PROSECUTION
Overview
7. The prosecution alleged that the Kissels suffered a rapid breakdown in their relationship, after thirteen years of marriage, following a Christmas 2002 skiing holiday at Whistler in Canada. Within weeks, the deceased had installed ‘eBlaster’ spyware in her computer at home and in one of his computers to enable him to read e-mails and other data in the appellant’s computer. At the same time as this was happening, he exchanged e-mails with his sister in the USA concerning marriage counsellors. Later, following discussions with a work colleague, Mr David Noh, the deceased was supplied by him with a list of counsellors. Whilst the marriage was plainly facing difficulties, it seems that the deceased still hoped that it could be saved.
8. In March 2003, Hong Kong was afflicted by an outbreak of SARS and the appellant took her three young children to the family home at Vermont in the USA for about four months. During that time, the deceased stayed with them for most of the month of May.
9. An electrical technician, Mr Michael del Priore, had been employed to do work at the house in Vermont while the appellant was there and in due course he formed a sexual relationship with her. Just after the deceased returned to Hong Kong from Vermont, he instructed an American private detective agency run by Mr Frank Shea to carry out surveillance on the appellant who by then he suspected of having an affair with Mr del Priore. A surveillance report in June 2003 confirmed his suspicions. The deceased went to the USA for a further eight days at the end of June but a surveillance report and various e-mails thereafter showed that the appellant had continued the affair. A day before the deceased’s family returned from Vermont on 30 July 2003, the deceased took advice from solicitors specialising in divorce.
10. In July and August 2003, the deceased experienced a recurrence of a long-term spinal problem. Eventually, after ten days as an in-patient at the Adventist Hospital, the deceased went to the USA for surgery. The deceased was there from 3 to 23 August 2003, after which he was prescribed a sleeping pill marketed in the USA as ‘Ambien’.
11. The appellant spent some time in the USA while the deceased was in hospital but she returned to Hong Kong eight days earlier than he did. On 10 August 2003, the appellant made reference to her “crippled husband” in an entry in Outlook Express. After her return to Hong Kong and before the deceased’s return, the appellant conducted an internet search for the topics “sleeping pills overdose on sleeping pills, medications causing heart attacks, drug overdose”. She also made a computer diary entry which revealed her awareness that she had been followed by an “investigating firm”, adding: “I realize what the affair has done to him trust-wise”. Then, on 22 August 2003, the appellant acquired a second mobile telephone which she tried to keep secret by arranging for the billing address to be the school where she did voluntary work.
12. The entry in the appellant’s computer concerning sleeping pills and drug overdoses which featured in an eBlaster report, obviously was seen by the deceased because a print-out, which was highlighted in colour, was found in the deceased’s desk at work during the course of the police investigation in the second week of November 2003. Indeed, the deceased telephoned Mr Shea at the American detective agency to inform him that he thought he was being poisoned because he had drunk whisky from his decanter and had become “very woozy and disoriented”. Nevertheless, in spite of his concerns, the deceased made two visits in September 2003 with the appellant to see a marriage guidance counsellor.
13. Matters took a more sinister turn in October 2003. The appellant went to see Dr Annabelle Dytham on 23 October 2003 and obtained ten ‘Rohypnol’ tablets after she told the doctor that she was having sleeping problems. The difficulty was caused, she said, because of assaults on her by the deceased which had started a year earlier. Rohypnol was prescribed because the appellant said that she had tried her husband’s Ambien tablets and they were not strong enough. Five days later, the appellant returned to see Dr Dytham saying that she was sleeping better. She complained, however, of migraine and for this she was given medicine.
14. On 30 October 2003, the deceased was sent a list of divorce lawyers which went to the home e-mail address used by the appellant. This, the prosecution alleged, would have reinforced the fact that divorce was being contemplated by the deceased. He had, prior to his death, told Mr Noh, Ms Bryna O’Shea, a family friend, and Mr Robin Egerton, his solicitor, that he intended to discuss divorce proceedings with the appellant on Sunday 2 November 2003.
15. On the same day as the list of lawyers went to the appellant’s computer, the appellant saw Dr Desmund Fung whom she had once previously consulted. Dr Fung worked at a different medical practice to Dr Dytham. She was supplied on this occasion with three prescription drugs to help her sleep. These were ‘Stilnox’, ‘Amitriptyline’ and ‘Lorivan’.
16. Neither Dr Dytham nor Dr Fung was told by the appellant that she had consulted another doctor or that she had been prescribed drugs elsewhere.
17. The killing took place on 2 November 2003 during the early evening. This occurred at the apartment in Parkview, 88 Tai Tam Reservoir Road, where the appellant lived with the deceased, their three children and two domestic helpers, ‘Min’ and ‘Connie’. At the time of the killing, the appellant was alone in the flat with the deceased.
18. Earlier, following a normal Sunday family visit to the Jewish Recreation Club in Robinson Road, the appellant had made milkshakes in the kitchen for the deceased and also a neighbour who was visiting the apartment. These were brought from the kitchen by June, the appellant’s younger daughter. The milkshakes contained a combination of at least four drugs, which matched those the appellant had obtained from the two private doctors she had consulted only a few days beforehand.
19. The allegation, in short, was that while the deceased was suffering from the effects of the cocktail of drugs the appellant had made for him, the appellant used a lead ornament weighing almost 3.7 kilogrammes to strike at least five powerful blows directed at the deceased’s head. Each of these blows could have proved fatal as the fractured skull bone was driven into the deceased’s brain.
20. Having killed the deceased, the appellant 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 the deceased’s absence from home and work.
21. It was not until 6 November 2003 that the deceased was reported “missing”. By then, the appellant’s father had flown over from the USA and he accompanied her to the police station to make a report. Later that same day, Mr Noh also made a report. Police then made general enquiries at the Parkview complex before obtaining search warrants. These were duly executed in the late evening and, by the early hours of 7 November 2003, the deceased’s body had been discovered in a storeroom rented by the Kissels.
22. The appellant was arrested soon afterwards. As she exercised her right to silence then and at all times afterwards and, at trial, ran a defence of self-defence, it was never possible for the prosecution to define with any precision the appellant’s motive for killing her husband. Plainly, she was deeply involved with her lover, Mr del Priore, perhaps even to the point of obsession, but the prosecution suggested that there may also have been a financial motive which, had she succeeded in avoiding being charged with and convicted of homicide, would have left her a very wealthy widow. In the light of the lengthy and wide-ranging submissions on appeal which occupied about eleven days, our review of the evidence will inevitably be detailed as there were few aspects of the case which, one way or another, were left untouched by the grounds of appeal.
Circumstances prior to the killing
23. Turning now to some of the salient details of the case, we will deal first with the evidence called by the prosecution relating to events prior to the killing.
24. The appellant’s marriage to the deceased was in 1989. They lived in the USA until 1998 when the deceased accepted a position with Goldman Sachs in Hong Kong. In 2000, he joined Merrill Lynch with an annual income of US$175,000 added to which, in the three years he was with them, he was able to earn commissions and bonuses totalling US$5.25 million. The deceased was described by Mr Noh as having been the head of a team of about seven to ten individuals of which Mr Noh was the second-in-command. Their long hours of work often involved travel overseas. Mr Noh described the deceased as “extremely professional” and as someone who got along with everyone.
25. Mr Noh was sufficiently in the deceased’s confidence to find out from him that there were problems with his marriage. He learnt, amongst other things, about the deceased having hired a private investigator to watch the appellant during the time she was staying with the children at their home in Vermont between 29 March 2003 and 30 July 2003. Mr Noh was also told by the deceased that he had installed ‘spyware’ to monitor the appellant’s computer. There was an abundance of evidence on both of these topics to which we shall turn later.
26. Mr Noh recalled how, in 2003, the deceased had hurt his back playing golf which caused the deceased to go to the USA for surgery. As to this, the evidence called by the prosecution revealed that the deceased’s spinal problems went back at least as far as 1995 when he was treated by Dr Patrick O’Leary in New York. The deceased used to enjoy a number of sports and had in his earlier days in Hong Kong played tennis and squash with Mr Noh.
27. Immigration records revealed that the deceased returned from the USA to Hong Kong on 23 August 2003. Later, Mr Noh learnt that the deceased had attended marriage counselling sessions. The deceased had been sufficiently encouraged at one stage by the appellant’s apparent change in attitude to think that the marriage might yet be saved but his hopes were then dashed when he discovered a telephone bill from which he realized that the appellant had a second mobile telephone and that this had been used to make numerous long distance calls to Vermont. Mr Noh was shown the bill and he described the deceased as “devastated” when he realized that his efforts to save the marriage were not going to work. The deceased then started to talk about how he could “preserve the right to see his kids as much as possible” and told Mr Noh that he was going to discuss divorce with the appellant on Sunday, 2 November 2003, which he described as having been “blocked out”, in part at least, for this discussion. In describing the deceased’s attitude to a divorce, Mr Noh said:
“Well, I think he had resigned to the fact that it was going to happen and he had told me that he was happy to give up any amount of money to have access to his kids and he was talking about getting a flat somewhere on the southside, maybe close to Parkview. He was going through those kind of dilemmas in his head as to where he could be situated where he can be close to his kids.”
28. The children were at that time still very young: Elaine, 9, June, 6, and Reis, 4.
29. Another person who was well aware of the difficulties within the marriage was the deceased’s younger sister, Mrs Jane Clayton, who had e-mailed information to the deceased in January 2003 about suitable people to contact in order to arrange for marriage counselling services. However, she later found out from the deceased that this approach did not seem to be working.
30. Mrs Clayton had been in Whistler at Christmas in 2002 when the deceased went to Canada with his whole family for a skiing holiday there. She described how the appellant returned to Hong Kong with her son, Reis, on 29 December 2002 leaving the deceased to take his two daughters home on 1 January 2003.
31. On a different subject altogether, Mrs Clayton said that the deceased’s estate was valued at about US$18 million and that the appellant was the intended principal beneficiary under his will.
32. A more intimate observation about the state of the marriage was to be found in the evidence of Ms Maximina Macaraeg (known as ‘Min’) who had worked as a domestic helper in the Kissel household at Parkview since 2000. Her sister-in-law, Ms Conchita Macaraeg (known as ‘Connie’) also worked there. Min described how the relationship between the appellant and the deceased deteriorated from being happy to one which, towards the end of 2003, had “no sweetness anymore”. She had never seen any violent episodes between the Kissels and had never observed any signs of injury on the appellant’s body before the deceased’s disappearance on 3 November 2003. What she had noticed was that the couple never talked together “front to front” and when the deceased left to go on overseas visits, the appellant would not go to say goodbye to him. She first began to notice this after the appellant returned with the children from the USA in 2003 following the outbreak of SARS in Hong Kong. She also noticed that although the appellant went to the USA in August at the time the deceased needed back surgery, she returned to Hong Kong ahead of him.
33. A similar picture of the deterioration in the marriage was painted by Connie. She said that she was treated “like a sister” by the appellant and, like Min, she spoke well of the deceased whom she found to be a thoughtful person who was never hot-tempered. He drank beer moderately on social occasions. She noticed that for a time, after the deceased had returned from the USA following his operation, there was a pleasant change in the relationship between the appellant and the deceased but this lasted only about a month before the return of what she called a “dual relationship”. She meant by this that the appellant paid no attention to the deceased.
34. The deposition of Dr O’Leary, an orthopaedic surgeon specialising in spinal surgery, was read to the jury to explain how the deceased had suffered from serious spinal problems before his death. The deceased was diagnosed in 1995 as having a disc herniation. After surgery had been performed by Dr O’Leary, the deceased progressed well but there was a recurrence of the same problem in the year 2000 and, once again, surgery was needed. Dr O’Leary next saw the deceased on 4 August 2003 and this time an operation was performed to correct the lumbar disc between the 3rd and 4th vertebrae on the right side. The deceased recovered satisfactorily from the operation and he was prescribed twenty-five Ambien tablets, at a strength of 10 milligrammes each, with one tablet to be taken at night to help him to sleep.
35. Prior to the deceased’s treatment in August 2003, he had been admitted to the Adventist Hospital for ten days under the care of Dr Wu where treatment for severe lower back pain was largely confined to bed-rest, physiotherapy and various forms of anti-inflammatory medicine.
36. In late January 2003, the deceased ordered the computer spyware known as ‘eBlaster’ which was installed on the appellant’s Sony laptop and a Dell desktop computer in his office. One important function of eBlaster software was that it permitted the person installing it to find out what activity was taking place on the designated account of another computer user. In this case, the account used by the deceased was a Hotmail account named ‘nrejrd’, which was an acronym of the first letter of each family member’s first name plus Daisy, the dog. A computer expert, Police Constable Cheung Chun-kit, established that eBlaster software was installed on or about 31 January 2003.
37. When the appellant and her children went to the USA to stay at the family home in Vermont, she took her Sony laptop with her. In May 2003, the deceased went there to stay and on his return he telephoned Mr Shea in New York. Mr Shea’s instructions from the deceased were to conduct surveillance on the appellant and to take particular note of a man named Michael del Priore as it was believed she was having an affair with him. Mr Shea was told that the ostensible reason which Mr del Priore had for visiting the appellant was that his work involved “high-end” television and audio equipment installation which was being carried out in their house.
38. In due course, Mr Rocco Gatta was briefed to carry out the physical task of surveillance on the appellant while she stayed at her Vermont address. This began with a surveillance exercise between 7 and 12 June 2003 and was followed by a second period of surveillance between 21 and 24 July 2003.
39. On 7 June 2003, the vehicle registered to Mr del Priore was seen in the driveway of the Kissels’ house in Vermont between about 3.30 pm and 10.30 pm at a time when the appellant’s car was also parked there. On 12 June 2003, the pattern changed slightly in that, during the late afternoon, Mr del Priore’s vehicle was observed in a ditch out of view of the road and the house. Again, the appellant’s car could be seen in the driveway. Between 10.40 pm and 11 pm, footsteps could be heard on the gravel driveway and Mr del Priore’s vehicle was driven away without lights. Mr Gatta followed the vehicle for a sufficient time to confirm that it was being driven in the direction of Mr del Priore’s home situated in a park for mobile-homes nearby.
40. The deceased returned to Vermont and stayed there from about 21 to 29 June 2003. By this time, his relationship with the appellant was plainly very tense. He wrote an e-mail to her on 21 June 2003 saying:
“Nan,
I hear you on everything you said, and I agree. It’s been tough on everyone. I can’t imagine though how any of this can be fixed without communication. Communication makes the tough times easier. Neither you nor I are very good at it. We both have to try extra hard because it doesn’t come easy to us. I know you said we need a third party to be involved, and I agree completely, but that doesn’t mean that we don’t try ourselves directly as well.
Last time in Vermont was extremely difficult for both of us as you said. I wanted to be with you and the kids, and had to juggle work. Certainly not the best situation, but life throws curveballs sometimes. I didn’t care if you were temporarily mad at me, or if it was something else temporary. But that was not the case. It was completely different. You were not available to me. You shut yourself off to me completely. It was very close to me not even existing. You shut yourself off to participating with the kids when I was involved.
I feel like sometimes I have been almost forced into being an outsider in the family. You may not be doing this consciously, and I don’t know if you realize any of this. But, it is extremely painful to me. I know that you are going through a lot, but please try, as I am trying with you, to not inflict this emotional pain on me.
Distance makes our issues harder. I think that you should come home earlier than planned and we should get to work on ourselves.
Please don’t stress out about this week. I will try my best to make it as stress free for you as possible.
I love you,
Rob”
41. During the July surveillance operation, Mr del Priore was again observed at the Kissels’ residence in Vermont. Mr Gatta was able to see the appellant’s car parked in the driveway on 21 and 24 July 2003 and on both days, shortly after 9 pm, he saw that all the lights in the house were out except one by the garage entrance. Following this, on each occasion, Mr del Priore’s vehicle arrived in the driveway with no lights and was driven only part of the way along the driveway before the engine was also turned off. Mr del Priore was at the house from 9.20 pm on 21 July 2003 until 12.50 am on 22 July 2003. On 24 July 2003, he visited at 10.40 pm and stayed until 12.25 am on 25 July 2003. When he drove his vehicle away, he was followed for a time and found to be taking the direction towards his home.
42. Mr Gatta’s observations were backed by some video footage and reports of his sightings were provided to the deceased by courier mail.
43. In mid-July, the appellant e-mailed Mr del Priore in a text captured by an eBlaster report containing the words “Love you, N”. Following the last of Mr Gatta’s observations, the appellant typed in MS Word the text, captured on an eBlaster report dated 25 July 2003, which included a reference to Michael (del Priore): “I will always love you M”.
44. On 29 July 2003, the deceased visited the offices of Hampton Winter and Glynn where he saw Ms Sharon Ser, a partner in that firm of solicitors, for the purpose of taking advice about the options available to him if divorce proceedings were commenced. This meeting was followed by two others, held between the deceased and Mr Robin Egerton who was at that time also a partner in that firm. On these occasions, the deceased discussed the fact that he believed that his wife had formed a relationship with a man in Vermont. His priority was that he should be able to maintain contact with his children, particularly at weekends. In due course, Mr Egerton prepared a preliminary draft of a separation agreement and, on 31 October 2003, the deceased told him that he would be discussing with his wife on 2 November 2003 how they would go forward with their matrimonial arrangements.
45. Immediately after her return to Hong Kong on 31 July 2003, the appellant typed a letter in MS Word to Mr del Priore on 1 August 2003, captured by an eBlaster report, in which she stated: “It’s so very difficult to reach you by phone but please know that I am always thinking of you and I’m driving myself crazy not speaking with you. … My beloved, I love you …”. Clearly the deceased was aware of this, as a copy of this eBlaster report was found by the police in his desk at work.
46. A few weeks later, on 20 August 2003, the appellant made the internet search on her computer to which we referred earlier, again captured by an eBlaster report a copy of which was also found in the deceased’s office, which revealed the search for: “Sleeping pills overdose on sleeping pills medications causing heart attacks drug overdose”. It seems that by this stage the appellant had come to realize that she was the object of the deceased’s suspicions as she typed out her thoughts on 21 August 2003 in MS Word in one of what were described as her ‘diary entries’ in her computer. She acknowledged that he would never trust her again.
47. On 22 August 2003, a day before the deceased returned from surgery in the USA, the appellant obtained a second mobile telephone which she used to make frequent calls to Mr del Priore. This was done discreetly and, to keep her possession and use of this mobile telephone a secret from the deceased, she caused the telephone bills to be sent to the Hong Kong International School where she did some voluntary work.
48. The prosecution called evidence to show that, on 29 August 2003, the appellant obtained ten tablets of ‘Stilnox’ (marketed in the USA as Ambien), from the clinic of Dr Fung in Icehouse Street, Central. In a second visit to that clinic on 30 October 2003 she obtained three medicines, ten tablets of Stilnox, twenty tablets of Amitriptyline and fifteen tablets of Lorivan. In the meantime, on 23 October 2003, the appellant had also visited the clinic of Dr Dytham in Wanchai where she obtained ten tablets of Rohypnol. After she had done so, on that same day at 4 pm, the appellant conducted a computer search through Google for Rohypnol. The website she visited stated that Rohypnol had similar effects to those of alcohol as it could “reduce inhibitions, impair judgment and cause the victim to become unconscious. … Additionally, Rohypnol can produce amnesia”.
49. Later in the trial, the defence called both Dr Fung and Dr Dytham and we shall need to say more about this aspect of the evidence at a later stage. For present purposes, it suffices to say that the prosecution called other evidence to establish the prescription drugs dispensed from these doctors’ surgeries. In addition, the prosecution called a pharmacologist, Professor Yeung, who described all of the drugs prescribed by those doctors as having sedative or sleep-inducing properties. Traces of all of the drugs obtained from Dr Fung and Dr Dytham’s surgeries were later discovered on analysis of the deceased’s stomach contents after a post mortem . Again, we shall return to these aspects of the evidence at a later stage.
50. The evidence of both Dr Fung and Dr Dytham showed that the appellant had disclosed to neither doctor her visits to the other or that she had obtained medication from the other for the same professed complaint of sleeplessness.
51. Following the appellant’s first visit to Dr Fung’s clinic on 29 August 2003, some six days after the deceased had returned to Hong Kong from spinal surgery in New York, the deceased telephoned Mr Shea to express his concern that his wife might be trying to kill him by poisoning him. This suspicion had arisen because he had drunk some scotch whisky from the decanter at home and found that it made him feel “woozy and very disoriented”. Mr Shea advised the deceased to submit samples for testing but it seems that this was not followed through by the deceased.
52. In the two days immediately before the appellant killed the deceased, the Kissels hosted a Halloween Party for 60 or 70 guests at their apartment. This was on 31 October 2003 and on the following day, 1 November 2003, the appellant fulfilled an agreement she had made with a good friend, Mrs Samantha Kriegler, to hold a photographic session with Mrs Kriegler’s two children in the gardens surrounding Parkview apartments.
53. Although Mr Andrew Tanzer and his family lived close to the Kissels at Parkview, the two families did not meet until Sunday, 2 November 2003. Mr Tanzer was waiting with his daughter, Leah, at about 9.20 am to take a taxi from the Parkview apartments to the Jewish Recreation Club in Robinson Road when he was offered a lift by the appellant who was, as it happened, going to the same destination. When they arrived there, Mr Tanzer met the deceased and his two daughters. During the morning, Leah became friendly with June Kissel and telephone numbers were exchanged so that they would be able to play together in the future.
54. The two families made their separate ways home that afternoon but Mr Tanzer said that Leah later received a telephone call from June asking her to go over to play at the Kissels’ apartment. It was about 2.45 pm when Mr Tanzer took his daughter there. He was invited into the apartment by the deceased and they talked together in the living room for about forty-five minutes while the children played elsewhere. At some point during their conversation, Mr Tanzer noticed the appellant in the hallway. She waved or gave some similar quick greeting but never came into the living room.
55. Then, as Mr Tanzer was about to leave, June asked him to stay for something to drink and, at about 3.40 pm to 3.45 pm, June returned with a tray on which there were two tall glasses each filled with a milkshake. Mr Tanzer described the milkshakes as having a reddish colour and as tasting quite sweet. They were thickened and he detected a banana flavour. After he and the deceased had finished their milkshakes, Mr Tanzer thought that the overall taste was strange and not one which he was able to recognize. He thought that this was perhaps due to the combination of ingredients and when, as he was leaving at about 3.50 pm, Mr Tanzer saw the appellant put her head round the kitchen door, he said to her: “What was in that milkshake?”. She replied to the effect that it was a “secret recipe”.
56. After Mr Tanzer had left, he went straight home leaving Leah to play with June. He had not had any alcohol to drink that day but he then found that for most of the rest of the day he either blacked out or was semi-conscious or asleep. Even the next morning he felt “quite disoriented”, unable to recall much of what had happened after 4 pm the previous day. He described the feeling as “a little bit like amnesia” which was not something he had ever previously encountered. By way of example, he found that he had written a note to remind himself to meet his former boss for a dinner engagement but the telephone conversation which had caused him to write this was one that he could only vaguely recall.
57. When Mr Tanzer’s wife, Kazuko Ouchi (Mrs Tanzer), saw her husband return home, she knew immediately that something was wrong as his face was red and he was complaining of feeling very sleepy. She thought at first that he was drunk as he seemed disoriented and was not talking. He then lay on the couch. Mrs Tanzer thought that he might have become ill as a result of something he had eaten but he said he had not had anything except a milkshake made by June Kissel’s mother. As Mrs Tanzer was concerned that her husband was having a stroke, she began hitting his cheek to keep him awake and considered calling an ambulance. Mr Tanzer, however, assured her that there was no need to do so. At one stage, his son woke him to take a call on his mobile telephone and when Mr Tanzer seemed to be able to speak sensibly on the telephone, his wife decided that he was merely very tired. Although he had dinner with the family, he later began to eat large quantities of ice-cream in a baby-like way, making a mess over his face. He also spent time talking to himself. Next day, Mr Tanzer had no recollection of these events.
58. As 2 November 2003 was a Sunday, one of the domestic helpers in the Kissel household, Connie, had the day off while the other, Min, was on duty albeit she had been given time off to attend a Harbour Fest concert between about 12.30 pm and 4 pm. When Min returned to the flat, she tidied the kitchen and washed up some glasses which, as she put it, had been used for “ice-cream shake or something like pinky colour”.
59. During some of the time that Min was tidying the flat, the deceased was with his son, Reis, in the Parkview communal playroom below. The deceased was seen there by Mr David Friedland who knew him through various points of contact, not least as the parent of a child who went to the same pre-school as Reis. They had briefly spoken to each other at about 4.40 pm and at one stage the deceased asked Mr Friedland to look after his son while he made a telephone call. When he had not returned after ten or fifteen minutes and as Mr Friedland needed to return home, he went to find the deceased. He found the deceased with his feet up on a chair and Mr Friedland signalled to him that he wished to leave.
60. A telephone record established that the timing of the deceased’s call was 4.51 pm. It was made to his work colleague, Mr Noh, and lasted for ten minutes. Mr Noh testified that he had tried a little earlier to reach the deceased without success as they had important matters to discuss. When they spoke at 4.51 pm it seemed that the deceased was talking on a different tangent and he kept saying how tired he was feeling. The answers which the deceased gave to Mr Noh seemed so bizarre that Mr Noh began to make fun about what he was saying. He described the deceased as sounding “very mellow” and he noticed that his speech was slurred. The deceased mentioned that he would later be discussing the issue of divorce with the appellant.
61. An important conference call between Merrill Lynch personnel, which should have included the deceased, had been arranged for later that evening. Mr Noh duly participated but the deceased did not. Frequent attempts to locate the deceased were made by Mr Noh and by the deceased’s secretary, Ms Lisa Low, all of which were without success.
62. There came a time when Min took June and Leah to the playground downstairs to join the deceased and Reis. The deceased’s elder daughter, Elaine, had gone on a junk trip with friends which accounted for her absence throughout most of the day. Min described how she had been asked by the appellant to take the two girls to the playground and to ask the deceased to return home. She met the deceased in the car park as he was heading towards their apartment. CCTV film recorded the time the deceased got into the lift to return to his apartment as 5.15 pm. By then, he was alone as Reis had been allowed to stay with Min and the girls at the playground. Before taking the children there, Min asked the deceased if she could borrow his watch. In response, he simply held out his arm and allowed Min to remove it.
63. It was not until about 6.15 pm that Min and the three children returned to the apartment. When they came in, the appellant told Min to tell the children not to make a loud noise as “their Daddy was sleeping”. It is now apparent, in the light of the appellant’s first public admission to having killed the deceased which she made when she was being cross-examined at her trial, that the time she may have done this was during the hour between about 5.15 pm and 6.15 pm when Min was looking after the children in the playground. Elaine and Connie, the second helper, did not return to the apartment until much later. The evidence of the pharmacologist, Professor Yeung, suggested that by the stage when the appellant was alone with the deceased, the effects of the drugs, assuming them to have been consumed by the deceased in his milkshake at about 3.45 pm, would have been at about their peak concentration.
Events following the killing
64. After Min returned to the apartment, she made dinner for the children and, by the time she went to her own room, she had noticed nothing unusual.
65. On Monday, 3 November 2003, a CCTV recording showed the appellant going into the car park from the lift at 2 am and returning to the lift at 2.11 am. On both occasions, she was carrying only a handbag on a shoulder-strap and, in contrast to later in the day, there was no sign of a dressing on the back of her right hand.
66. Min prepared the children’s breakfast at about 7 am and packed a lunch for Elaine and June to take to school. She spoke to the appellant in the kitchen and was told by her that there was no need to clean the master bedroom. The appellant said that the deceased had left the apartment after they had argued and he had gone to stay at a hotel.
67. The other helper, Connie, noticed that the appellant had a plaster on her right hand at that time. She was told by the appellant that she had burnt herself on the oven. After that, the appellant left the apartment to take her daughters down to the school bus, returning at 7.32 am according to the timing on the CCTV security camera.
68. The deceased’s body was not discovered until the early hours of 7 November 2003. It had been securely wrapped and taped before being placed inside a rug and taken by unsuspecting members of the Parkview staff to a storeroom rented by the Kissels. The police investigation which followed this discovery brought to light a number of details about the appellant’s movements and behaviour which the prosecution alleged provided a picture of a woman who was intent on covering up what she had done. She had not only hidden the body but she had gone about her life quite normally and had provided false explanations for the absence of the deceased to all who enquired after his whereabouts.
69. On Monday, 3 November 2003, the appellant was engaged in a flurry of activity after the children were off her hands. The appellant began by sending an e-mail to a family friend, Scott Ligertwood, postponing a meeting she clearly remembered she had arranged with him for the next day, saying:
“… my husband is not well … I need to take care of some things with him tomorrow … sorry …”
70. A short while later, the appellant made an internet search for Horizon Plaza and for stores selling luggage items. She left her Parkview apartment at 9.32 am with a shopping list that included luggage, bedding, towels and bleach. A telephone call was made at about 10 am to Links Relocations (‘Links’) on the appellant’s mobile telephone which was received by Ms Bobby Sajnani. She was requested to arrange for the delivery of cardboard boxes to the appellant’s address. Then, at 10.35 am, the appellant telephoned the deceased’s mobile number before returning to Parkview at 11.51 am. The appellant was carrying a number of shopping items and CCTV pictures revealed that by that stage she had some kind of bandage on the back of her right hand.
71. At about noon, the appellant telephoned Mr Yuen Tse-on, a member of the staff at Parkview, to enquire about the availability of a storeroom in addition to the one already rented by the Kissels. She was informed that none was available. At 12.37 pm, the appellant left Parkview and in just over an hour, at 1.42 pm, she returned, pulling a large black suitcase behind her.
72. At 3.40 pm, the appellant accessed the Hong Kong Police Force website, including the pages for missing persons.
73. At 4.55 pm, the appellant left Parkview again and went on a shopping expedition in Horizon Plaza in Ap Lei Chau where, having parked her car, she bought a chaise longue, a small carpet, and two scatter cushions. In addition, she ordered a bedcover to be made for which a delivery date was arranged on 14 November 2003. The appellant took the carpet away by hand and the remaining items were to be delivered to her Parkview apartment on 5 November 2003. According to the shop assistant who served her, the appellant behaved like a normal customer although she was wearing sunglasses indoors and was rather “loud” in her manner.
74. The appellant then went to a second shop in the same complex where she purchased a bedspread at 6.13 pm before returning to Parkview at 6.41 pm. CCTV pictures showed her carrying several items including a rolled carpet which was over her left shoulder.
75. Obviously, the deceased’s absence from work on Monday 3 November 2003 had not gone unnoticed. Mr Noh had been unsuccessful in making contact with him all day and he telephoned the appellant that evening only to be told by her that they were having some “family issues”. The appellant said that the deceased would call him back. No such call was ever made.
76. The appellant made three telephone calls that evening. Two were to members of her family, her father and her half-brother, to whose testimony we will turn when dealing with the case for the defence. The third call was to a close friend of both the appellant and the deceased, Ms O’Shea, who lived in San Francisco. In fact, Ms O’Shea had left several messages on the deceased’s mobile telephone and she had e-mailed the deceased from San Francisco saying: “Called to say hello. Now I’m getting worried”. Eventually, the reply she received came by way of a voicemail message from the appellant which stated that the appellant had been in a fight with her husband as a result of which she had “two broken ribs”. The appellant went on to say that “she was getting it documented”, that her father was flying in and that she was calling her (Ms O’Shea) first.
77. There were several other telephone calls between the appellant and Ms O’Shea at that time. On the following day, 4 November 2003, Ms O’Shea succeeded in speaking to the appellant who told her that the deceased had chased her round the bed wanting to have sex with her and had beaten her up and left. The appellant ended the call by saying that she needed to take the children somewhere. However, Ms O’Shea noticed during this conversation that the appellant seemed to be forcing herself to sound upset, which led her to question what had happened. The appellant then gave an excuse to cut the call short.
78. In subsequent calls made by Ms O’Shea before the deceased’s body was discovered, the appellant spoke about how the deceased had not been in touch with her. Ms O’Shea recalled that the appellant at one stage complained that she was unable to write cheques for their children’s tuition saying: “Fucking Rob had it all tied up with Merrill Lynch” and saying something to the effect that she did not know how to proceed. In another communication, this time by e-mail, Ms O’Shea suggested a cancellation of the appellant’s intended medical appointment for breast uplift surgery, scheduled for mid-November in the USA which had been the subject of earlier e-mails, but, to her surprise, the appellant replied by telephone: “No, don’t cancel it. I’ll be there”.
79. Ms O’Shea’s e-mails became increasingly desperate in her quest to speak to the deceased. Eventually, she spoke to Connie and to Mr Noh. This caused Mr Noh to decide that he should make a missing person report to the police on 6 November 2003.
80. Before dealing with the police investigation, we must first return to other events before the police became involved, starting with the morning of 4 November 2003 when the appellant again told Min not to clean the master bedroom. It was then that Min noticed the injury to the appellant’s hand and she was told, as Connie had been told a day earlier, that she had burnt herself on the oven. When the appellant spoke to Connie, she asked her to purchase six boxes of peppermint oil and she provided the name of the shop where this was to be done.
81. At 8.32 am, the appellant left her apartment and went to see Dr Dytham. Dr Dytham’s testimony was important and we shall return to it.
82. In the appellant’s absence, twenty-nine cardboard boxes were delivered to her apartment by the removal company, Links, the receipt of which was acknowledged by the appellant on the telephone later in the day. At 11.30 am, the appellant returned to Parkview and, at about 1 pm, she asked Links to send some ‘hanging wardrobes’.
83. The appellant did not leave her apartment again until 5.25 pm when she drove once more to Horizon Plaza and purchased two more small carpets which she arranged to have delivered next morning. Her behaviour in the shop was described as normal. She returned home at 6.35 pm.
84. At about 9 pm, the appellant had a conversation with Connie. She showed Connie the injury on the back of her right hand which she had earlier said was a burn. There was also a cut to one of her fingers on the same hand which the appellant said was caused by a fork but she did not know how she had done it. In addition, the appellant had bruises on her left knee and she was complaining of very painful thighs. The appellant explained to Connie that she had been in a fight with the deceased who had assaulted her and kicked her in the ribs when he was very drunk and under the influence of cocaine. Connie enquired as to the deceased’s whereabouts and was told that he had perhaps checked into a hotel. When she asked why the deceased had done this, the appellant said: “He’s under too much stress. It is because of power and money”.
85. On 5 November 2003, the two helpers, Min and Connie, went into the living room at about 8.30 am where they found that the carpet which was usually on the floor had now been rolled up and placed behind a couch. Connie wondered how, with sore ribs, the appellant had been able to do this. The appellant said that she had “asked for help”.
86. Min was told by the appellant: “We are going to keep ourselves busy today”. The appellant asked Connie to buy a range of goods including towels and a bedcover, explaining that the old ones reminded her of the deceased and made her feel lonely. She stated also that it was hurting her so much that he had left home. Connie then went on her way to make the purchases, which also included adhesive tape of the type used for packing. Min’s task, meanwhile, was to empty the storeroom rented by the Kissels and to place its contents in the corridor outside. She was able to move all but one item.
87. Later, Min was asked to go to the Adventist Hospital to buy a Velcro belt for the appellant’s ribs and to go to Stanley to buy some rope. In the meantime, at 10.30 am, the chaise longue, two scatter cushions and two carpets, bought by the appellant on the previous day, duly arrived. Mr Khan, who delivered the items, described the appellant as looking normal and she treated him in a friendly manner. He followed her instructions to put the chaise longue in the master bedroom in place of a wood and leather chair which she asked him to dispose of. He had also been given instructions in advance, for which the appellant had paid a service charge at the shop, to place one of the carpets under the bed in the master bedroom. However, this instruction was altered by the appellant who merely asked him to unroll it in the sitting room.
88. At 11.24 am, Links delivered the additional cartons which the appellant had ordered on the previous day.
89. When Min returned from Stanley with two reels of rope and saw two new carpets, with the old carpet rolled up behind the couch, she asked the appellant what the rolled-up carpet contained. The reply she was given, that it contained pillows, blankets and bed-sheets made her uneasy and afterwards she telephoned Connie. Later, while playing with the appellant’s son, Reis, Min could hear noises of adhesive tape being dispensed in the living room. Min was told later on that some people were coming to pick up the carpet to put it in the storeroom.
90. At 2 pm, four members of the Parkview staff came to collect the carpet. In addition, they took some other items of furniture which were removed from the master bedroom as well as a set of golf clubs and some empty cartons belonging to Links. Chow Yiu-kwong was in charge of the work-party. He testified that he noticed a smell like “salted fish” coming from the carpet. He mentioned this to the appellant when she paid him but she gave no reaction and simply closed the door. In due course, the deceased’s body was found wrapped inside this parcel.
91. The appellant briefly left her apartment at 8.18 pm and returned at 8.32 pm with her father, Mr Ira Keeshin, who was called as a witness for the defence at trial. During that same evening, Mr Noh spoke to the appellant who again told him that there were “some family issues”. On this occasion, she also mentioned there was a “health problem”. The appellant’s father left the apartment at 10.04 pm.
92. On Thursday, 6 November 2003, the appellant telephoned her friend, Mrs Kriegel at 8 am sounding very upset and saying that she could not complete in time the arrangements she had undertaken to make for a gala dinner on behalf of the United Jewish Congregation at Robinson Road because she was dealing with “issues about Rob’s health”. Mrs Kriegel, who knew all about the gala dinner, told her not to worry and that she would take care of everything. She then arranged to collect from the appellant the invitations which needed to be sent out. When Mrs Kriegel arrived at the apartment, the appellant appeared to be very upset. She saw that the appellant was in her father’s company. Mrs Kriegel went inside briefly and noticed some cartons with the name ‘Links’ on them. When she enquired if the appellant was moving back to the USA, the appellant cried.
The police investigation
93. The appellant and her father left the apartment at 11.02 am on 6 November 2003 and went to Aberdeen Police Station where Station Sergeant Mok received a report from the appellant which he categorized as one of assault occasioning actual bodily harm. The appellant described to him an incident which was said to have taken place at 9 pm on 2 November 2003 at the appellant’s home. She stated that following an argument over the marriage, she was pushed against a wall and beaten by her husband after which he left home and had disappeared.
94. The appellant seemed very upset and emotional at the time of making the report to the police and she provided no details about the deceased beyond his name. However, she stated that she had been to see a doctor (Dr Dytham) at the Shui On Centre in Wanchai and had obtained a medical report. The appellant’s father then passed over the report which was dated 4 November 2003 and described a consultation with the doctor at 9 am in which the appellant had alleged an assault on her by her husband at 9 pm on Sunday (2 November 2003). The doctor had noted various injuries to the appellant.
95. Station Sergeant Mok then noted the injuries which he was able to observe on the appellant. These were red marks on the left side of the jaw line, red marks and bruising to the back of the right hand, red marks and bruising to the right elbow and red marks to the left hand, left forearm, left elbow and left upper arm. The appellant also mentioned that she was experiencing pain at the joint of her right shoulder and upper arm. The appellant was asked if she would see a government doctor. Initially, she declined having already, as she said, seen a private doctor but she later indicated she was prepared to do so and was taken by ambulance to Queen Mary Hospital in the company of a woman police officer. However, faced with the prospect of a long wait before she could be seen, the appellant decided to leave the hospital and return with her father to Parkview.
96. Mr Noh also made a report on 6 November 2003 to the police about the deceased’s disappearance. This was at Western Police Station at 4 pm.
97. At 5.14 pm, the appellant left Parkview and, about half an hour later, the police went to Parkview to make some enquiries. They established, amongst other things, that there was a rented storeroom outside the confines of the Kissels’ apartment.
98. By the time the appellant returned to Parkview with her father at 7.24 pm, the police were making arrangements for the issue of search warrants. Duly armed with these, the police arrived at the appellant’s apartment at 10.50 pm. When the appellant answered the door, she was told that the police were investigating a missing person report and the assault on herself. The appellant invited the officers inside, including Chief Inspector Yuen, Senior Inspector See and Woman Detective Police Constable Ng. She informed them that she had had “a big fight” at 9 pm on 2 November 2003 in the flat after the deceased had been drinking. He was said to have then wanted sex but she had refused and during the fight which followed she was injured. The appellant was asked where her husband was at that time but she denied any knowledge of his whereabouts saying merely that she did not know. She added that she did not remember whether he had been injured but she had called him after he had left home and left messages for him.
99. The appellant’s father, after she had telephoned him to join her, arrived in the apartment at 11.02 pm. The police officers then enquired if the appellant was packing, having noticed the cardboard cartons in the apartment. She said that she was, adding that she had to protect herself. The Chief Inspector asked to be allowed to see the master bedroom so that he could be given a demonstration of the way in which the appellant had been attacked. This was done quite quickly in a room that seemed to be in disarray. In the bathroom, many travel-bags had been placed in the bathtub. Senior Inspector See then asked the appellant if she rented a storeroom at Parkview. When she replied: “No” she was told that the police had been informed that she did and that it was storeroom 15112 in Tower 15. The appellant was asked if she had a key but again she said: “No”.
100. After this, the appellant asked to be allowed to speak to her father in private. The police officers moved out of earshot so that she could do so. After some minutes, the appellant’s father came into the dining room saying four or five times: “Oh my God, I don’t believe it” and he was clasping either side of his head as he did so. It was noticed at this time that the appellant’s appearance had changed. She was now crying and trembling unlike earlier when she had been calm. She was again asked for a key to the storeroom but she responded by asking if the police had search warrants and stating that she wanted to have a lawyer. The appellant was shown the search warrants and when her father pointed out that the police could break the door and asked her to give them the key, she then produced it. She and her father declined the invitation to accompany police officers to the storeroom.
101. The senior officers present at the scene then went to the storeroom leaving other officers at the apartment with the appellant and her father. When the storeroom door was opened, the smell inside was immediately recognisable as that of a dead body. Inside, at about 11.40 pm, police found a wooden cabinet, a set of golf clubs and a rolled up carpet encased in plastic sheeting and kept together with brown adhesive tape. On top of the package, four scatter cushions had been taped along its length. The storeroom was then sealed off to enable forensic scientists and a pathologist to examine the scene. Later, when the rug was fully unwrapped, the deceased’s body was found to have been placed inside a zipped-up sleeping-bag. Rope and towels had also been utilized to package the corpse which was dressed only in black boxer shorts and a T-shirt which was heavily bloodstained on the front but much less so on the back.
102. The appellant, meanwhile, was taken at her own request to see a doctor at 1.25 am on 7 November 2003. She was examined at the Ruttonjee Hospital by which time it had been discovered that the carpet in the storeroom contained a corpse. Shortly after 2.40 am, while still at the hospital, she was arrested for murder. She gave no response.
Medical and expert evidence
103. The appellant was examined at the hospital a second time. This was carried out at 8.45 am by Dr Iris Li who described the appellant as trembling over the whole of her body and unable to speak. The doctor noted, amongst other things, that the appellant’s upper lip had a crusted abrasion although there was no corresponding injury inside the mouth. Dr Li noticed an area of abrasions measuring 3 to 4 centimetres in diameter in the centre of the appellant’s chest. No fractures were observed from the whole-body X-rays she had ordered. Dr Li noticed on the palm of each hand what she described as “pin-prick” injuries with redness and swelling around the puncture marks. In addition, Dr Li noted bruises which she thought were two to three days old on both the left and the right hand and on the arms and elbows. She saw also that there were several abrasions to the appellant’s knees covering almost their whole surface. There were also crusted abrasions surrounded by areas of bruising on top of both feet.
104. The appellant was later transferred to the custodial ward of Queen Elizabeth Hospital where she did not respond to questioning.
105. During that afternoon, Senior Scientific Officer Tam carried out an examination of the master bedroom. This was done after Dr Lau Ming-fai had earlier in the day conducted a post mortem which had established that the upper right side of the deceased’s head had five lacerations suggestive of five blows from a blunt, hard object, each of the blows being potentially fatal. At the site of these separately identifiable injuries, varying between 2.5 and 9 centimetres in length, on the right forehead, some brain tissue had spilt out. This site on the deceased’s skull had originally been covered by a towel and plastic sheeting when the corpse was discovered.
106. Dr Lau described the five potentially fatal lacerations as being similar and they revealed some “curvature”. They were found with “depressed cumulative fractures of the underlying skull bone and also massive spillage of the brain substance”. All of these wounds were “focused on one area over the upper right head of the deceased”. The skull had been shattered causing comminuted fractures (multiple bone fragments) and each of the five lacerations was “superimposing on the area of the comminuted fracture and all of them [had] contribution to the comminuted fracture”.
107. In Dr Lau’s opinion, a great amount of force was required to cause the fractures to the skull and he considered that death had occurred about four days prior to the discovery of the corpse in the early hours of 7 November 2003.
108. In due course, Dr Lau examined a base-plate and two figurines found concealed in the apartment. These were originally a single-piece ornament which was made of lead. Dr Lau found that the base-plate was compatible with the object which had caused the five head lacerations. At the stage he saw it, the base-plate had become detached from the figurines and had three pins (perhaps better described as nails) sticking out of it which had once been used to secure the figurines. The base-plate had also been distorted so that, instead of being completely flat, it had a curve to it.
109. The prosecution’s case was that the appellant had held the ornament, using the figurines as handles, to smash the deceased’s skull until the base-plate became detached from the two figurines. Whether or not the appellant continued to use the base-plate in the attack after that, the injuries to the palms of her hands which Dr Li had observed were alleged by the prosecution to have been caused by the nails protruding from the base-plate.
110. Dr Lau found five other lacerations, four of which he described as being in the region of the forehead and one was to the upper left back of the deceased’s head. They would have bled but these were not fatal blows. They were also, in Dr Lau’s opinion, consistent with having been inflicted by a blunt, hard object and would have needed a moderate amount of force to inflict them.
111. Dr Lau took a sample of the fluid in the deceased’s stomach which, on later analysis by a government chemist, revealed the presence of Stilnox, Amitriptyline and Lorivan (drugs dispensed at Dr Fung’s surgery on 30 October 2003) and Rohypnol (a drug dispensed at Dr Dytham’s surgery on 23 October 2003). In addition, Butalbital and Salicylic acid were found. Amitriptyline and Butalbital were also found in a liver sample. However, while Dr Lau was able to say that having ingested these drugs, the level of consciousness of the deceased would probably have been impaired, he was not able to determine the degree of impairment or to draw any definite conclusion as to the contribution of these drugs to the fatal outcome, in the absence of knowing the levels of these drugs in the blood. In view of the degree of decomposition, it had been impossible to take blood or other body samples from the deceased’s body which might have shown this.
112. In regard to the possible effects of these drugs on the deceased, Dr Lau noted that there were no defensive injuries on the deceased’s upper limbs which are normally to be found when a person has tried to defend himself from attack. In his opinion, therefore, this suggested that at the time of the attack the deceased had little ability to defend himself. The likely scenario, Dr Lau suggested, was that the deceased was lying prone, face downwards, exposing the part of his head where the fatal blows were struck but he was unable to say in which order the lacerations to the head were caused or to say whether the fatal blows preceded or came after the non-fatal ones.
113. Pharmacological evidence, setting out the properties of the various drugs that the deceased was found to have ingested, was given by Professor John Yeung Hok-keung.
114. Professor Yeung described Amitriptyline, found in the deceased’s stomach contents as well as in the liver sample, as being used for cases of depression “when sedation is needed early in treatment”. He said that it was “very soluble in solvents” and easily absorbed when taken orally. Peak concentration occurs within four to eight hours but the “pharmacological effect usually comes in before the peak is reached”. Furthermore, when combined with the other drugs found in the deceased’s body, the effects would be “additive” as stated in evidence, which we understand to mean cumulative.
115. Professor Yeung said that Flunitrazepam was a potent benzodiazepine which is marketed as ‘Rohypnol’. In the USA, it achieved notoriety as a ‘date rape’ drug, inducing sleep and amnesia and reaches a peak of concentration between forty-five minutes and two hours after being ingested with an oral absorption rate of 99%. Its sedative effect is “additive” when combined with the other drugs found in the deceased’s body.
116. Lorazepam, also known by its trade names ‘Lorivan’ or ‘Ativan’, was described by Professor Yeung as being similar to Rohypnol and is a potent short-acting benzodiazepine. Its use is “basically associated with drowsiness and sleep”. Again, it is absorbed very quickly and could reach peak concentration within two hours after being ingested. Taken orally, the absorption rate on average is about 90% and, if combined with any of the other drugs found in the body of the deceased, its sedative effect would once more be “additive”.
117. Zolpidem is marketed as ‘Ambien’ in the USA and as ‘Stilnox’ in Hong Kong. This was described by Professor Yeung as a new class of hypnotic drug, unrelated to benzodiazepines. Its effect on the body is to induce sleep but without the side-effect of amnesia. Again, it is rapidly absorbed after being taken orally and peak concentration could occur between 0.8 to 2.6 hours. If mixed with the other drugs in the deceased’s body, the effect would be “additive”.
118. The fifth drug identified in the deceased’s stomach contents as well as in the liver sample was Butalbital. This is a barbiturate which was once used as a sedative hypnotic drug before the development of benzodiazepines. One of its uses is as a sleeping pill but it has largely been replaced by benzodiazepines for safety reasons. Professor Yeung did not think that this was marketed in Hong Kong but, again, if combined with the other drugs, its effect would be “additive”.
119. Lastly, Professor Yeung described Salicylic acid, found in the deceased’s stomach contents, as normally being a naturally-occurring substance in various forms of vegetation and, in the human body, this can be derived from aspirin.
120. Professor Yeung was asked whether the fact that the deceased had been a known user of Ambien for some time as a result of his history of painful back troubles might have given him a greater level of tolerance to the cocktail of drugs contained in the milkshake than someone like Mr Tanzer who, by contrast, was not used to taking sleeping pills on a regular basis. Professor Yeung was not able to give an authoritative answer to this.
121. Dr Lun Tze-shan was called by the prosecution as an expert in respect of the analysis of bloodstain patterns. By the time of the trial he had retired from active service. He attended the Parkview apartment at 9.15 am on 8 November 2003 with Dr Pang Chi-ming, an expert in DNA analysis. In Dr Lun’s examination of the master bedroom, he found bloodspots and splashes of blood on bedding items and on various items of furniture mostly at a low height from the floor. This enabled him to conclude that the killing had occurred in an area at the end of the bed or nearby where the blood staining was concentrated. Furthermore, given the level at which blood staining was found, Dr Lun’s opinion was that it was likely that the deceased had been sitting or lying down at the time he was injured.
122. Another matter which Dr Lun noted was that there were no signs of “cast-off” bloodstain patterns. Such patterns are associated with a bloodstained elongated weapon which has been used in an attack and has cast off blood when swung in an arc. Perhaps more significantly, Dr Lun was also unable to find any sign of “contact blood pattern” which may occur when there has been a struggle between an assailant and the victim and a “smearing” or “wiping” pattern of blood staining is left behind on walls or furniture.
123. The blood which was analysed from items found in the Kissels’ apartment all matched the deceased’s DNA profile save that on the heads of the two figurines there was a mixture of male and female blood of which the appellant and the deceased could have been the donors. A piece of skin-like tissue was found on the leg of one of the figurines.
124. Dr Wong Koon-hung, a government chemist, examined the two figurines (a woman and child) together with the base-plate which the police found at the apartment in the course of their search on 8 November 2003. They had been hidden in a wardrobe inside a black bag along with other bloodstained items in the daughters’ bedroom. The larger figurine weighed 1.3 kilogrammes, the smaller weighed 0.684 of a kilogramme and the base-plate itself weighed 1.7 kilogrammes. From the top of the oval-shaped base-plate, Dr Wong found that there were three nails protruding. These fitted corresponding holes in the figurines and were there to secure them to the base-plate. The legs of the figurines, both designed in a seated position, were no longer as they should have been in that they had been bent upwards. In Dr Wong’s opinion, this distortion had required “significant” force.
125. Dr Wong agreed in cross-examination that the curvature of the base-plate could have been caused by a blow with an object of “significant hardness”. A little earlier, Mr King for the defence had engaged in the following questioning of Dr Wong:
“Q. … And you wouldn’t disagree, would you, that that curvature could be caused by the base-plate being struck by an elongated cylindrical object?
A. I think I’m going to have to see the object to …
Q. Let me suggest to you a little more, not be quite so reticent, an object such as a baseball bat could cause that curvature in that way if it struck the base-plate on the underside.
A. I would put it another way, I would put it that it could have been struck by an object whose contour would follow the shape of this curvature.
Q. Yes. And the contour of that curvature is round, is it not? It has been indented on a curve.
A. There is a circular kind of curvature, yes.”
126. Although Dr Wong had said in this passage that he would need to see the baseball bat to comment on the suggestion made by Mr King, no baseball bat was produced in court at that time. This aspect was followed up by Ms Ada Chan, second junior counsel for the prosecution, when she re-examined Dr Wong to find out whether a baseball bat could have caused the curvature on the base-plate. She asked Dr Wong whether he would expect to find an “obvious mark” on the base-plate. Dr Wong replied:
“… We could also look [for] contact evidence to suggest whether it’s been in contact with that hard object but … with the base being how it looks now, because it might not be a single blow with the object … it [might] be multiple blows … we have to know more concerning how many times it’s been hit and how big the object is to get the result … So as I said previously, we don’t know the shape of the object being impacted upon there.”
Dr Wong was also unable to comment on whether a skull bone would be capable of marking the base-plate.
Min recalled and evidence in rebuttal discussed
127. The subject of the baseball bat was not raised again until shortly before the prosecution closed its case when Mr King applied for the recall of a number of witnesses. Each prosecution witness (‘PW’) had been allocated a number and, by this stage, PW1 to PW67 had given their evidence. Initially, the witnesses Mr King sought to have recalled were the helper, Min (PW21), Chief Inspector Yuen (PW39), Senior Inspector See (PW40) and Dr Wong Koon-hung (PW55). The application for their recall was forecast in a letter from the appellant’s solicitors, Mallesons Stephen Jaques, dated 19 July 2005, some two months after the trial had commenced and, it later emerged, just over twenty months from the date upon which, according to evidence from the appellant’s brother, a baseball bat had been found in the master bedroom by Mr Clarke, a solicitor in that firm. The letter stated:
“We write to advise at the earliest opportunity we shall be making application to His Lordship for the recall of the following witnesses …”
The witnesses were then named.
128. The witnesses who were recalled were in due course asked questions relating to the baseball bat which Mr Clarke was said to have found. Before this stage, a baseball bat had been referred to in the jury’s presence when Min, the helper, had been cross-examined. A reference to this was made by the judge when he gave a ruling following Mr King’s application to recall some of the prosecution witnesses. The judge set out the relevant chronology as to what had taken place, saying:
“On Friday, 29 July 2005, the prosecution indicated that, save for evidence relating to forensic examination of the baseball bat marked for identification Exhibit D41, the prosecution was in a position to close its case.
The existence of the baseball bat was first disclosed in court by Mr King on 20 July 2005 when he made an application for the recall of the witness, Miss Maximina Macaraeg [‘Min’]. That application was necessitated by the fact that when the witness had testified in mid-June before the jury, although she was cross-examined about the existence of a baseball bat in the master bedroom in the Kissel apartment, that baseball bat was not put to her for identification. The defence had not put its case properly.
On 21 July 2005, in response to a request by the prosecution, the baseball bat was handed over by the defence to the prosecution. As is apparent from correspondence put before the court, the prosecution sought the assistance of the Government Laboratory to conduct a forensic examination of the baseball bat immediately. By a memo dated 22 July 2005, the Government Laboratory indicated that the examination was estimated to require 20 working days.
On Friday, 29 July 2005, Mr Chapman indicated that the prosecution was in a position then to make an application for the recall of Dr Wong in respect of one element of the forensic examination; namely, the absence of evidence of contact between the baseball bat and the ornament, Exhibit P277 to 279, but he indicated that the other aspects of forensic examination had not been completed. Accordingly then, he applied for the recall of that witness and, secondly, for an adjournment of the trial before the jury until at least the middle of August 2005 in order to be able to call such evidence as proved to be relevant, following forensic examination of both the ornament and the baseball bat.
Whilst Mr King opposes the adjournment of the trial and the recall of Dr Wong to deal with only part of the forensic examination conducted, realistically, he concedes that in all the circumstances, there would have to be very powerful and compelling reasons for the defence to object to the prosecution calling evidence in rebuttal in respect of this forensic examination. He indicates in terms that he is unable to conceive of such grounds at present.
Given that the baseball bat was removed from the master bedroom of the Kissel apartment, the very scene of crime, on 9 November 2003, apparently by a partner of the firm of solicitors instructed by the defendant and that, thereafter, it was kept in the defendant’s solicitors’ office without the prosecution being informed of the discovery of the baseball bat, or its removal, or its ongoing detention, I have no doubt whatsoever that Mr King’s concessions are wholly appropriate.
Today Mr Chapman has indicated that he no longer seeks an adjournment in light of the concessions made by the defence in respect of rebuttal evidence. Similarly, in respect of Dr Wong, he says he is not yet possessed of a witness statement from Dr Wong dealing with that single aspect of evidence.
In all the circumstances then, and particularly mindful of Mr King’s concessions in respect of the prosecution calling evidence in rebuttal, I decline to grant the adjournment once sought, or the recall of Dr Wong at this stage in the trial. Those are both matters that can be dealt with in evidence in rebuttal. That is my ruling.”
129. It was on this basis that Dr Wong and, in the event, Dr Pang’s evidence was called in rebuttal after the appellant and her witnesses had completed their evidence. However, Min, the helper, was recalled before the defence case opened. She was reminded about her earlier evidence that a baseball bat had been kept in the master bedroom between the items of furniture at the foot of the bed and that she sometimes picked it up when vacuuming in that part of the room. This was a preface to her being shown the baseball bat (Exhibit D42) with a view to finding out if she recognized it. Min, when shown the exhibit, replied: “I am not sure”. She was also asked if she had ever seen a second baseball bat in the apartment and her reply was: “No”.
130. The baseball bat, Exhibit D42, was made of a light coloured wood throughout. The grain of the wood was plainly visible and on it were printed the maker’s logo and three other inscriptions in dark print. It will be more helpful if we deal with the evidence, called in rebuttal, given by Dr Wong and Dr Pang after we have dealt with the appellant’s account about how she came to kill the deceased. We shall, therefore, return to this topic in due course.
Computer evidence
131. An additional category of expert evidence was called by the prosecution, and also by the defence, to deal with data found in the computers of both the appellant and the deceased. Police Constable Cheung Chun-kit, who worked in the Technology Crime Division of the Commercial Crime Bureau described how data was taken from the hard disks of the appellant’s Sony laptop, the deceased’s IBM laptop and the two Dell desktop computers. He found, amongst other things, the eBlaster software installed in the Sony laptop computer and in one of the Dell computers.
132. It is unnecessary for present purposes to rehearse much of the information which was forthcoming from PC Cheung’s investigation. It suffices to say that, amongst other things, he was able to find the appellant’s communications with Mr del Priore, her Google search for the effects of Rohypnol on 23 October 2003 and her accessing the Hong Kong Police Force website for ‘wanted and missing persons’ during the afternoon of 3 November 2003. We have already dealt with these and other significant aspects of the computer evidence except one.
133. Although the other expert computer evidence was given by a defence witness, it is convenient to deal with it at this point. Mr Benedict Pascoe produced a considerable quantity of documents to illustrate the route he had followed to try to establish, on the instructions he was given, that the deceased’s IBM and Dell computers had been used to access, amongst other things, pornographic websites relating to homosexual acts and anal sex. The defence exhibits (D35, D37 and D55) relating to what was found by Mr Pascoe were described by the judge in terms which are self-explanatory:
“Of Exhibit D35, namely, the material related to the Dell desktop, [Mr Pascoe] said that the contents of tab 2 were printouts of rebuilt web pages resulting from Google searches. The list of the words typed by the computer is the first page of that enclosure. Those files were first created in a period of less than 30 minutes on 5 April 2003. Tab 3 is the result of an EnCase search he did for the word ‘gay’.
Of Exhibit 37, Mr Pascoe testified that it relates to the IBM laptop computer. Tabs 2 and 3 of D37 contain rebuilt websites after he had performed an EnCase keyword search for the words ‘gay ultra’ and ‘gay’ respectively. Tab 4 contains rebuilt websites following a search that he performed for the title ‘Google search’. The first page of that enclosure contains a list of words typed by the user of the computer in those searches. Tab 5 is a single rebuilt web page following his search using EnCase keyword search for the word ‘twinks’.
Exhibit D55 is a printout of the EnCase internet history parser of the Dell desktop computer, item 2. Exhibit D55A contains a two-page index of the 46 sections comprising D55A. Pages 3 to 18 are the first six sections of Exhibit D55. Page 13 to 19 is the internet history from the index doc.dat for the time 9.11 pm to 10.38 pm on 4 April 2003. You will recall that this internet activity in the internet history commences with a Google search for the phrase ‘wife is a bitch’. Later it proceeds to a search for the phrase ‘lonely and married’, then ‘lonely and married in Hong Kong’. Next, a search for ‘Taiwan and companions’, followed by ‘Taiwan and female companion’. One hour into the internet activity, a search was made for ‘anal + sex + Taiwan’. That was followed by a search for the phrase ‘gay + anal + sex’. Mr Pascoe testified that thereafter the internet history evidences a download of a programme to view digital movies. Later a search was made under the phrase ‘bisexual’. In the final six minutes of activity that evening, a Google search was made for the phrase ‘anal + cocks’.
Pages 6 to 8 of Exhibit D55A contain the internet history for 3 April on the Dell desktop. At 9.40 pm, activity begins with a Google search for the site ‘Magic Hand’. A little while later, a search was made using that phrase ‘married and lonely’. That progressed with the phrase ‘Hong Kong’ being added to it. Next, a search was made for the phrase ‘married and bored’. That was followed by a search for the phrase ‘cocks’ at 10.08. Thereafter, a variety of sites were visited for short periods of time. Next there was a search for the phrase ‘gay + sex’ at 10.27. Again, a variety of sites were visited for short periods of time in the following 11 minutes.
In cross-examination, Mr Pascoe agreed that the period of time encompassed by the material produced in Exhibit D55, that is, the internet history of the Dell desktop computer, was January 2002 to November 2003. He accepted that in that period of time, there were only two days in which material relevant to internet history activity related to sexual sites had been found, namely, 3 and 4 April 2003. Furthermore, he accepted that the total time of the internet activity in respect of such sites on those days was about three hours. Of that material, he accepted that about 70 per cent were Google search pages, not pornographic sites.
Mr Pascoe told us that schedule 5 of his report is a 15-page printout of the internet history of the IBM laptop, that is, item 3. It covers the period 10 May 2002 to 1 November 2003. He agreed that none of the websites had any sexual content, apart from one that might have. He accepted that on 11 October 2003, there had been a Google research in respect of ‘real estate Hong Kong’. Another search had been made in respect of ‘classmates’,
However, in re-examination, Mr Pascoe explained that the internet parser cannot search in unallocated clusters on the hard disk. When he had applied EnCase to the IBM laptop, he had found Google searches related to websites with sexual content, for example, those set out in tab 3 of Exhibit D37. In cross-examination, Mr Pascoe accepted that porn dialler had been installed on the Dell desktop on 23 April 2003 and 14 September 2002. You will recall, members of the jury, that the travel record[s] of Robert Kissel indicate that he was outside Hong Kong on those dates. Mr Pascoe told us that porn dialler apparently was a popular method of access to pornography sites before the advent of Broadband. He said that if Robert Kissel was not in Hong Kong, then he could not install those porn diallers. However, he said that in that period - 2002 to 2003 - one could download a porn dialler inadvertently, that is, without being aware that that is what was happening.”
134. The prosecution closed its case on 1 August 2005.
THE CASE FOR THE DEFENCE
135. The appellant, then aged 41, described in evidence her early upbringing in the USA and how, after meeting the deceased on holiday, she continued to see him for two years before they married. She said that when she married the deceased both he and his brother, Andrew, were cocaine abusers. Nevertheless, the deceased graduated from New York University in the top few per cent of his class and, after a modest start in employment with a small investment bank in 1991, he had been taken on by Goldman Sachs by 1997. In the following year, when the family moved to Hong Kong, the deceased was extremely busy and had to work very long hours.
136. The appellant, assisted by two helpers to look after the children and to do general domestic duties, said that she occupied herself with voluntary work. Some of this was done at the Hong Kong International School where a number of teachers and parents, who had known the appellant over the five years she had contributed her time, spoke well of her. They described how she had also produced the school calendar and had been very successful at raising money at an annual fund-raising event two years running. She was also a talented photographer who used her skills to good effect at the school as well as in setting up a small-scale business as a children’s photographer.
137. The appellant also described her voluntary work at the United Jewish Recreation Club. She became the chairperson responsible for organising the annual gala event to raise money for the Sunday School after her predecessor, Mrs Kriegel, had been unable to continue in that capacity. This event was postponed from Spring 2003 to December of that year as a result of the SARS outbreak.
138. The appellant described the deceased as someone who became more forceful with his sexual demands as time went on, performing anal sex on her which she disliked and wanting her also to engage in oral sex. In addition, she described a pattern of increasing physical violence after they had arrived in Hong Kong and she made references to being overpowered by the deceased so that he could have anal sex with her, sometimes after he had taken cocaine or alcohol, or both.
139. One specific episode to which the appellant referred was the deceased’s demand that she should be induced for the birth of their son, Reis, so that his work schedule could be accommodated. This led to an argument in which she described how the deceased had aimed a punch at her and had hit the wall when she ducked. The following day his hand was bandaged.
140. The appellant’s description of a finger injury to the deceased fitted, as it happened, with medical evidence provided by Dr Wu who had also provided evidence in relation to the deceased’s back injury. In cross-examination, Dr Wu was asked about his medical notes for 1 September 1999 which made reference to a fracture of the knuckle of the small finger of the right hand, described in the notes as a “boxer’s fracture”. It was treated with manipulation and a pin and the doctor observed that there was a pre-existing healed fracture in the same place. He had not enquired how this had happened but the defence placed reliance on this testimony as evidence of the deceased’s violent disposition towards the appellant. However, with regard to this aspect of the case, we have already referred to evidence about how, earlier in his time in Hong Kong, the deceased used to play squash.
141. In another incident in which the appellant alleged that the deceased had been violent towards her, she said that in 2001, whilst resisting an attempt at anal sex, he had broken one of her ribs. For this, she had been treated at the Adventist Hospital where she said she made up a story about having injured herself playing rugby. The appellant was given a brace but she said that the deceased caused her further injury when he ripped this off. Again, she described making up a story to tell the doctor, this time explaining that the new injury had been caused by a coughing fit.
142. The appellant also alleged that, on occasions, the deceased had given her a black eye or caused bruising to her thighs, arms and hips as well as injuries to parts of the body where others would not be able to see them. She alleged that she suffered a lot of bleeding from forced anal sex.
143. The appellant described a series of unhappy incidents which she alleged occurred during the Christmas break in Whistler, including an episode in which she was hit across the mouth as a result of which she fell down a flight of stairs. It was this, she said, which caused her to leave Whistler early with her son.
144. After that, during January and February 2003, the appellant said that she and the deceased communicated only by e-mail although the deceased did speak to her about marriage counselling and gave her a list of names which he had obtained from his sister.
145. With the outbreak of SARS, the appellant said that the deceased made the decision that the appellant and the children should go to the USA. It was not until 5 May 2003, that the deceased joined them at their Vermont home. He then set up office there in order to continue his work. The appellant said that they argued almost every day. One reason was that he had brought cocaine into the house and this, together with his long working hours, produced huge mood swings. He was, she said, also using a lot of sleeping pills. Meanwhile, he continued to force the appellant to engage in anal and oral sex. It was because of this “pretty intense” sexual activity that she took one of the deceased’s ‘Ambien’ sleeping pills, broke it up and put it in the scotch whisky bottle “thinking it would calm him down”. However, she could not see that it had any effect on the deceased after he drank some of the scotch.
146. The appellant described her relationship with Mr del Priore after the deceased had returned to Hong Kong. She first met him when he came to repair the telephone. A little while later, with the appellant’s consent, Mr del Priore brought his daughter to the house to play with the children. His next visit was to repair an alarm system and Mr del Priore also drove the appellant to a tattoo artist so that she could have tattoos put on her shoulder. Afterwards, they spent time together in a restaurant and Mr del Priore got onto the topic of how his mother had been abused in her marriage. He told the appellant that she had a similar look to his mother’s which made the appellant cry. She found, after this, that she leant on Mr del Priore for strength and they spent a lot of time on the telephone. They had sexual intercourse, according to the appellant, on “three-ish occasions” although she had no intention of leaving the deceased.
147. The deceased telephoned at the end of July to tell the appellant that he had found out about Mr del Priore and that he wanted her to return home. At that stage, the deceased not only had been given the surveillance reports concerning Mr del Priore’s late night visits to the house in Vermont, there were also the loving messages sent by the appellant to Mr del Priore, referred to earlier, which had alerted the deceased to what was happening. The appellant left the USA, according to immigration records, almost immediately. She arrived in Hong Kong on 31 July 2003. She said that it had not crossed her mind not to return as Hong Kong, not Vermont, was her home. However, she asserted that following her return, the same sort of sexual violence continued as before. The appellant said that this picked up where it had left off despite the fact that the deceased had been hospitalized for ten days until 17 July 2003 prior to having surgery in August in the USA. The deceased was also, she said, very angry that she had been tattooed.
148. On 1 August 2003, her first full day back in Hong Kong, the appellant accepted that she had typed a letter on her computer, shown in an eBlaster report, which was sent to Mr del Priore by courier. In the letter, she said, amongst other things, that it was difficult to reach him by telephone and continued:
“… but please know that I am always thinking of you … and I am driving myself crazy not speaking with you”.
149. She signed off with the words “My beloved I love you Michael.” The eBlaster report which captured these words was found, as we indicated earlier, in the deceased’s office desk. In relation to a later entry on her computer captured by eBlaster, where the appellant had referred to the deceased as her “crippled husband”, she stated in her testimony that this was said as a “joke”.
150. The appellant described how, within three days of her arrival in Hong Kong, she returned to the USA with the deceased “to be there for him” during his surgery. Even then, they continued to have arguments. The appellant’s “diary” entries in her computer for 10, 11 and 13 August 2003 reflected the unhappiness within the marriage; in them, she referred to the deceased’s desire to have sex with her but she made no reference to anal sex or to forced sex. She stated, in cross-examination, that while the deceased was recovering from back surgery in New York during August she had met up with Mr del Priore in Central Park for an hour. On 15 August 2003, the appellant left the USA ahead of the deceased, returning with their eldest daughter, Elaine, who had been to a summer camp. After the deceased had arrived back in Hong Kong, the appellant described him taking out the children’s passports and saying: “I don’t give a shit about yours but you can’t have the others”, whereupon he took away the children’s passports.
151. The appellant said that she searched the topics “sleeping pills overdose on sleeping pills, medications causing heart attacks, drug overdose” on the internet because she was contemplating suicide and, to protect the children from a realisation that this is what she had done, she was looking for a means of killing herself which would conceal this. She described how, on one occasion at the house in Vermont during May 2003, she had turned on the engine of her car in the garage but had changed her mind about what she was doing and turned off the engine. Nevertheless, in e-mails on the same day as the search for sleeping pills, overdose and medication to cause heart attacks, the appellant was greeting Mrs Kriegel after her absence in the USA and was trying to set up a meeting at the Mandarin Hotel. She stated in an e-mail:
“Maybe we can write it off as a gala expense luncheon … that will be my first addition to taking over the event … meetings at the Mandarin every week …”
152. The appellant agreed that she had written diary entries on 21 and 22 August 2003 in the first of which she wrote:
“… I’m not [quite] sure how he feels about me ... after having a private investigating firm follow me and what not ... are they going to be watching me forever ... [hidden cameras in the bedroom,] tapped phones … I realise what the affair has done to him trust-wise … but I also guess I will forever have to know that as long as we are together … he will never trust me again.”
153. The appellant testified that, on 27 August 2003, she had her first appointment with Ms Ceilidh Halloran, a marriage guidance counsellor. A much longer session followed after that which she said resulted in her seeing Dr Fung who prescribed Stilnox for her insomnia. In cross-examination, she stated that she took all of these pills in an attempt at suicide but then she changed her mind and made herself throw up.
154. On 1 September 2003, the appellant said that the deceased accompanied her to see Ms Halloran. A week later, he did so again but this was followed, she said, by a violent row when the appellant heard how much Ms Halloran was charging. She said that their argument ended with her being forced to have anal sex. Nevertheless, there was a further meeting with Ms Halloran which both the appellant and the deceased attended. The appellant said that this became a screaming match with her saying at one stage: “I am done with the marriage, I want out. I want a divorce”. She said that the deceased became crazy, furious and out of control. He was yelling: “Who do you think you are?” He kicked a chair and stormed out of the meeting. We pause here to observe that Ms Halloran was not amongst the witnesses called by the defence.
155. The appellant continued her evidence by saying that the deceased returned home in the early hours of 16 September 2003 after drinking. He was yelling at her and forced her to engage in anal sex. When cross-examined about this, she acknowledged that, on the same day, the deceased had written an e-mail to Ms O’Shea in which he described “a strange development at home. Nancy has made a 180 degree turn and wants to stay together”. Her explanation was that she had in fact apologized to the deceased by going to his office. This was followed by an outing to a restaurant for lunch together. Some days later, she went to the deceased’s office and decorated it with family photographs. This change of atmosphere was additionally reflected in an e-mail, dated 25 September 2003, from the deceased to Ms O’Shea in which he again described a change for the better. However, whilst the deceased may have perceived an amelioration in the relationship, the appellant acknowledged that at that time she was making daily calls to Mr del Priore on her newly acquired mobile telephone which she had concealed from the deceased.
156. The appellant described a fight with the deceased that occurred on 22 October 2003 which was followed by a visit to Dr Dytham. She said that she told Dr Dytham what the deceased had been doing to her physically and sexually and was given Rohypnol. She said that when she told the deceased about this he was furious because he said that Rohypnol would not treat depression.
157. The appellant said that after she had been given Rohypnol, she did a Google search to find out what it was.
158. The appellant described her next visit to Dr Dytham. This was on 28 October 2003 when, she said, she had supplied the doctor with false information, saying she was feeling fine when she was not. Her explanation for this falsehood was that on the previous visit she had noticed Dr Dytham writing “alleged assault” and the doctor had explained that this meant “rape”. The appellant said she did not want to go down that path as she only wanted to be treated for depression.
159. The appellant went on to explain that it was for this reason that she went to see Dr Fung, a psychiatrist. On 30 October 2003, she received from him the three drugs, Amitriptyline, Lorivan and Stilnox which she said she showed to the deceased.
160. There was a Halloween party on Friday, 31 October 2003, at the Kissels’ apartment. The appellant said that her recollection of events occurring after the party was not good. When asked about Saturday, 1 November 2003, she replied that she could not remember it at all.
161. When dealing with the events of 2 November 2003, the appellant said she had a “patchy” recollection. CCTV photographs were shown to her in order to assist her recollection. She said that the deceased had taken the children to Sunday School at the United Jewish Recreation Club. She took her car alone but on the way she gave Andrew Tanzer and his daughter, Leah, a lift. That morning, also, her elder daughter, Elaine, had to be dropped at the Aberdeen Marina Club for a party on a junk. Although Ms Mary Lamb, who was hosting that party and was called as a defence witness, saw the appellant delivering Elaine, the appellant herself said that she had no recollection of having done so. Ms Lamb testified that when she tried to get in touch with the appellant and the deceased by telephone at the end of the party between 4 pm and 5 pm for Elaine to be collected, she was unable to do so.
162. The appellant accepted that there were CCTV pictures of her arriving back at her apartment at 1.20 pm on 2 November 2003. She wrote two e-mails of no relevance to the case but she testified that she was unable to recall having done this. She also spoke to a friend on the telephone. CCTV pictures recorded the return to Parkview of the deceased with June and Reis at 2.36 pm, over an hour after the appellant.
163. Andrew Tanzer and Leah came over to the Kissels’ apartment at about 2.45 pm. The appellant described how the children had gone into the kitchen when they wanted to have a snack. It was decided to have milkshakes. The appellant was able to recall how June and Leah chopped up bananas and that it was Reis who broke up the cookies which were added to the ice-cream in the blender. She said that at June’s request she had added red food colouring to make the milkshakes look “Halloweenie”. During this time, the deceased walked into the kitchen to get some water. The appellant fetched some cups or glasses and poured out the milkshakes. She said that June and Leah then took two of the milkshakes out to their respective fathers in the sitting room. She recalled that Reis and the deceased returned at some stage to the kitchen where each of them drank from the blender itself. The appellant said that she had a vague recollection of talking to Mr Tanzer.
164. The appellant denied having put any drugs into the milkshakes and she said that as she had also made milkshakes for the children, she would not have done this.
165. The appellant said that she had no recollection of the deceased leaving the apartment with Reis at 4.39 pm, as shown in CCTV photographs, or of the deceased’s return by himself at 5.15 pm.
166. Regarding the events which followed the deceased’s return, the judge’s summary of the way the killing took place, taken from the appellant’s testimony, was as follows:
“Of the fact that Robert Kissel spoke to her from the hallway whilst she was in the kitchen, she said that Robert Kissel loved to begin their conversation in a way in which she could not hear properly. She said, ‘I can’t hear you’. Robert Kissel said, ‘Well, if you listened better, you’d be able to hear me’. She yelled back, ‘I wouldn’t have to yell if you’d come in here’. The matter was resolved when she went out into the hallway. There she saw Robert Kissel standing in the doorway of the bedroom. 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’.
Of course, members of the jury, when you examine this evidence, have regard to the evidence you have of the physique of Robert Kissel, 180 centimetres and 69 kilograms. Have regard to her own evidence of how he had overpowered her, she says, over five years, to force anal sex on her.
The defendant testified that she remembered pacing back and forth in the hallway. When she got towards the kitchen opposite the dining room, she kept thinking about the bat and then, as she put it, ‘So I picked up that statue on the table there and I went back towards him’.
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.
She testified that Robert Kissel had not told her at any time prior to his declaration in respect of divorce that he proposed to raise the issue of divorce with her that Sunday. She said to him, ‘What do you mean you’ve filed and you’re taking the kids and you’ve told people that I’m sick?’. She waved or wagged her finger in his face. She repeated the gesture and he held her arm. On the third occasion that she did that, he grabbed her arm, yanked it down and would not let go. She spat in his face. He hit her across the mouth. She fell down and dropped the statue. He pulled her into the bedroom and ripped her pants down and started to have sex with her. She resisted his attempts to turn her over so that she faced downwards. She kicked him and they both ended up on the floor. As she crawled away, she said he grabbed her ankles and pulled her. He said to her, ‘I’m not finished with you yet’. He continued to drag her on the floor and, for her part, she kicked him in the stomach. He would not stop. She reached for the statue.
Of what she had done with it, she testified, ‘I just swung at the back of me’ - and you will recall the demonstration she gave us with the left arm moving up into the vertical and backwards – ‘I just swung at the back of me. I didn’t even look. And I felt that I’d hit something. Then he let go and I turned round and looked at him. He was sitting by the closet and I saw that his head was bleeding’.
She testified that Robert Kissel had refused her offer to help him up. He pulled himself up on to the bed and just sat there. He kept looking at her. When he touched his head and discovered blood, he looked at her and said, ‘I’m going to fucking kill you’. Then Robert Kissel grabbed the bat and came at her. He hit her on the knee and she fell over. She grabbed the statue and swung it at him, hitting him in the leg. She swung the statue at him and he hit her with the bat. He pushed her up against the cabinet and kept saying, ‘I’m going to kill you, you fucking bitch’. He kept hitting her with the bat until she ended up on the floor. He was on top with the bat, holding it in his hand. Of what happened next, she said, ‘He came down on me as I was holding the statue in front of my face’. When asked by Mr King to carry on with her descriptions of events, you will recall that the defendant paused for a long time, shook her head and said, ‘I don’t remember’.”
167. It was not until Mr Chapman started his cross-examination of the appellant that she actually admitted killing the deceased with the two-figurine ornament.
168. The appellant said, in the words of the judge when summarising her account, that it was only after her attention had been drawn to the curvature of the base-plate for the ornament that she:
“… had first recollected that a baseball bat came into contact with the base of the ornament while she was in this courtroom, about two weeks earlier. That is two weeks prior to her giving that testimony. Then, when it was held up in court, she saw it”.
169. Her last recollection of the incident in the bedroom was, she said, being on the floor next to the bed. She did not know how the five fatal lacerations to the upper right side of the deceased’s head, or any of the other injuries, were caused.
170. The appellant said that the baseball bat held by the deceased was usually kept in the bedroom between the chest of drawers and the tall cabinet at the foot of the bed. It was formally produced as a defence exhibit in the course of the appellant’s evidence. She was able to recall that when it was swung at her, one of the figurines on the ornament “flew off”.
171. When called upon to say why she had left the apartment for about ten minutes at 2 am on 3 November 2003, she explained that she had driven her car down the hill but she had no recollection of where she had been or why she had gone out.
172. The appellant said that she had no recollection of events on Monday 3 November 2003 and that the first she realized the deceased had been killed was during her detention at Siu Lam Psychiatric Centre when “images and pieces of things” which made little sense came to her after about six months. She testified, therefore, that she could not recall what had occurred on any of the days following the killing, including sealing up the body inside the sleeping bag and taping various other items to the package although these had been fixed with adhesive tape which in places bore her fingerprints. She said, also, that she was unable to remember her conversations with Min and Connie or other friends or speaking to the Parkview staff or to any of the shop assistants in the course of shopping trips.
173. The appellant accepted that she had never mentioned to anyone, including Dr Dytham, that the deceased forced her to have sex, whether anal or otherwise. Even her “diary” entries, where her innermost thoughts were recorded, mentioned no such event. She agreed also that at no stage had she ever been medically examined for signs of injury or damage to her anus. In addition, she accepted that in all the accounts she had given in the conversations she had had with people she knew, and when she spoke to the police at Aberdeen Police Station, she had made no mention of a baseball bat being used by the deceased to attack her.
174. The appellant maintained in cross-examination that she had known nothing about the deceased’s intention to raise the topic of divorce on 2 November 2003 or that it was an issue he had even addressed. The appellant accepted that a list of divorce lawyers was sent by e-mail but she said that as this was addressed to the deceased she would not have read it. She would merely have placed it in the deceased’s folder.
175. Dr Fung was called on the appellant’s behalf to testify about her consultations with him. He said that she had been referred to him by Ms Halloran. When he first saw the appellant on 29 August 2003, she spoke of a troubled marriage with arguments sometimes leading to violence. In a second consultation, on 30 October 2003, the appellant had the same complaints about lack of sleep and about the deceased as before. She told him that their relationship had deteriorated further and there was talk of divorce. Dr Fung, being convinced that she was not making up a story, prescribed the three-drug combination of Stilnox, Lorivan and Amitriptyline to help the appellant sleep. The last of these drugs was an anti-depressant to help with anxiety. Dr Fung was not made aware by the appellant that Dr Dytham had prescribed Rohypnol for her only a week before, on 23 October 2003, as well as twenty tablets of dextropropoxyphene on 28 October 2003. He said that if he had known this, it would have affected what he had prescribed for the appellant. He had been told that the deceased used ‘Ambien’ and Melatonin but at no stage had the appellant mentioned that he abused cocaine.
176. Dr Dytham was also called to testify. The appellant had consulted her since February 2002 when a ‘Well Woman Check’ was performed. The appellant indicated in the two-page questionnaire which she completed at that time that she was sexually active, that there were no physical or emotional problems with sex and that she had been using a contraceptive pill for five years. Sexual intercourse was not accompanied by bleeding and was not painful.
177. The appellant’s next consultation was just over a year later, on 27 March 2003, when the appellant was suffering from bronchitis. She appeared to be a normal, organized mother.
178. On 23 October 2003, the appellant again saw Dr Dytham who said that on this occasion, when she complimented her on how well she looked, the appellant replied that she was feeling awful. She was complaining about difficulty with sleeping. She then spoke about a low mood since her husband had first attacked her over a year earlier. This had been followed by other assaults. Dr Dytham asked if rape was involved but the appellant said that it was not and she made no mention of anal sex or of any physical injuries. The appellant spoke of taking some of her husband’s sleeping pills (Ambien) but, as these had been ineffective, she asked Dr Dytham for something stronger. She was then prescribed ten tablets of Rohypnol and Dr Dytham warned the appellant about a possible side-effect of blackout, particularly when taken with alcohol.
179. When the appellant returned to see Dr Dytham on 28 October 2003, she was in an improved state but on this occasion was complaining of migraine and headaches. The doctor prescribed 20 tablets of dextropropoxyphene which the police found in the Parkview apartment along with a variety of other household medicines. However, the police found none of the other drugs prescribed by Dr Dytham or Dr Fung, although the search for relevant items was not as thorough as it might have been. As the appellant’s half-brother Dr Brooks Keeshin was to testify, the police overlooked a number of bloodstained items which had been concealed in the bedroom occupied by the Kissels’ daughters.
180. The last consultation which the appellant had with Dr Dytham was on 4 November 2003 after she had telephoned the receptionist and requested the first appointment of the day. The appellant was seen at 9 am. She appeared unkempt and was wearing dark glasses. When she was called from the waiting room, she rose very slowly and walked in a hunched way. When she sat down, she burst into tears and said that her husband had attacked her on Sunday evening at about 9 pm.
181. The description which the appellant gave of the attack was noted by Dr Dytham. This was summarized by the judge in the following way:
“Husband was drinking at home, Nancy in bedroom. Husband entered bedroom, wanting sex. Nancy declined. Husband then attacked Nancy. Nancy recalls running around bed. Husband kicked and grabbed Nancy. Nancy holding a fork and glass. Husband used his fist and feet only, Nancy using a fork to defend herself. ‘Remember hanging on to it for some reason. Think I was holding it the wrong way.’ Nancy says she was thrown on to floor. Husband was lying on the bed, kicking out at her and trying to stop her getting out of room. Cannot remember or recall how long.”
182. Dr Dytham noticed that the appellant had no difficulty in recalling the events she was describing. At no stage did the appellant refer to the deceased holding a baseball bat or any other weapon. All the time, the appellant gave visible signs of being in pain, moving her body very slowly and she was tearful. When Dr Dytham conducted a physical examination, she noted bruises and redness on the thumb and first finger of both hands and puncture wounds on the inner creases of the right hand which were consistent with the appellant’s account that she had been holding a fork the wrong way round when she was attacked. Dr Dytham did not notice similar injuries to the left hand. The appellant responded in pain when several areas of her upper body were touched although there was no bruising to be seen. Dr Dytham observed that on both knees the appellant had what might well have been carpet burns.
183. Dr Dytham noticed that the appellant took a very long time to undress and that she got onto the examination couch very slowly. She then described the appellant’s reaction to touch as being as if she was in total body pain, so much so that she formed the view that the appellant was exaggerating. Dr Dytham found no injuries on the appellant’s body which suggested that she had received any forceful blows such as would have been caused if she had been struck with a baseball bat.
184. Dr Dytham asked the appellant whether she had the children’s passports so that her husband could be prevented from taking the children out of Hong Kong. When the appellant replied that she was holding their passports, the impression was left that the deceased was still alive.
185. Before leaving the surgery, the appellant requested a copy of Dr Dytham’s notes which she was given. It was this report which the appellant handed in at Aberdeen Police Station when making an allegation of assault by the deceased. Dr Dytham also arranged for a nurse to bandage the appellant’s right hand and for X-rays to be taken at the Adventist Hospital.
186. On 5 November 2003, the appellant telephoned Dr Dytham to find out the result of the X-rays. The result was unknown at that stage but Dr Dytham asked whether the deceased had returned home. She was told by the appellant that he had not and that his office was looking for him. The appellant also mentioned that the deceased’s mobile telephone voicemail was full.
187. On 6 November 2003, Dr Dytham told the appellant that the X-ray results had shown no visible fractures. The appellant expressed her surprise about this as she said she was in such pain when she breathed and she felt her ribs were “popping”.
188. We can deal very briefly with some of the other witnesses who were called for the defence. The appellant’s half-brother, Dr Brooks Keeshin, learnt from the appellant on 3 November 2003 about what she alleged was an assault by the deceased upon her. He flew to Hong Kong on 8 November 2003, after the deceased’s body had been discovered and, on 9 November 2003, he accompanied the appellant’s solicitor, Mr Clarke, to the apartment during the afternoon. The focus of their visit was the master bedroom.
189. Dr Keeshin described how Mr Clarke looked behind the chest of drawers at the foot of the bed between two tall cabinets. Then, when he helped Mr Clarke pull the chest of drawers out, he was able to see a baseball bat (Exhibit D42) lying on the ground. After they had examined it, Mr Clarke placed it inside a pillow case. Dr Keeshin assumed that the baseball bat would be taken to Mr Clarke’s office.
190. Mr Clarke, who was in court throughout the trial, was not called to give evidence about the finding of this baseball bat which, by implication, had been overlooked by the police. The first time the police became aware of its existence was on 21 July 2005, many weeks into the trial, when a representative of the defence handed it to the police in the trial courtroom.
191. Dr Keeshin remained at the apartment with the children and the two helpers until 19 November 2003 when he returned to the USA taking the children with him. While at the apartment, a number of bloodstained items which, as we have said, were overlooked by the police, were found there by Min. Dr Keeshin then informed Mr Clarke about this and the police later came to collect them.
192. It was suggested by the defence at trial that just as the police had overlooked the items found by Min and the baseball bat which Dr Keeshin described being found by Mr Clarke, so also might they have overlooked the Rohypnol, Stilnox, Lorivan and Amitriptyline which had been supplied to the appellant.
193. Mr Ira Keeshin, the father of the appellant, had kept in close touch by telephone with the appellant throughout the marriage and he said that he got along well with the deceased. The first time that he had heard of any mention of violence being used by the deceased against the appellant was on 3 November 2003, the day immediately following the killing. The appellant had not spoken to him about her marriage being in difficulties or about her affair with Mr del Priore. She had also never mentioned to him that she had felt suicidal.
194. When describing the violence during the telephone call on 3 November 2003, Mr Keeshin said that the appellant told him that some of her fingers were broken and that she might also have broken ribs. When the appellant said that she had made an appointment with the doctor, Mr Keeshin advised her to get something in writing from the doctor.
195. Mr Keeshin flew to Hong Kong to be with the appellant. When he saw her on his arrival from the USA on 5 November 2003 at about 9 pm, he said that he was not able to embrace her because she stepped backwards saying that her ribs were very sore. He noticed that she was wearing a strap around her waist. The appellant told him that she had received no word from the deceased and, seeing that her hand was bruised, he suggested that a report should be made to the police next day.
196. Mr Keeshin repeated his suggestion that the police should be told of the situation when he saw the appellant on 6 November 2003. The appellant agreed to this and he then accompanied her to Aberdeen Police Station. Later in the day, when he enquired from the appellant what had really happened, the appellant replied that when the deceased had wanted sex and she did not, the deceased “started kicking [her]”.
197. Mr Keeshin had returned to his hotel by 11 pm on 6 November 2003 when he heard from the appellant that the police were at the apartment. On his arrival there, he quickly realized, after the police had requested a key to the storeroom where they thought the deceased might be, that the deceased was believed to be dead.
198. A number of defence witnesses dealt with injuries which they could recall having seen on the appellant at various times prior to the killing.
199. Mrs Nassbarg spoke of seeing a bruise on the appellant’s face in late 1998, on an occasion at the Hong Kong International School, which the appellant explained had been caused by her daughter, June, when they were playing. A few months later, the appellant was wearing dark glasses in a restaurant when a domestic helper asked her why she did this. The appellant lowered her sunglasses to reveal bruising round an eye and she said, simply, “rough sex”.
200. Mrs Tunaca, a Parkview resident and an assistant teacher at the Hong Kong International School who at one stage saw the appellant almost daily, described seeing the appellant with a broken ankle but she had never seen her with any facial injuries. She said that the appellant almost always wore sunglasses, indoors and outside to the extent that she used to tease her about it.
201. Mrs Samra, another resident at Parkview, said that on three occasions she had observed the appellant with an injury. The first time, in 2001, was an occasion when the appellant wore a supporting article around her ribs which the appellant told her was because she had bruised her ribs playing touch rugby. Six months later, the appellant had her foot and ankle in a cast which she told Mrs Samra was the result of tripping in a tennis game. The third injury was a black eye which the appellant said had been caused by Reis when he bumped his head onto her eye. Although very close to the appellant, Mrs Samra confirmed that she knew nothing about any of the appellant’s concerns with her marriage; her visits to the doctors; her alleged attempt at suicide on 29 August 2003 following her visit to Dr Fung’s surgery; her affair with Mr del Priore. When Mrs Samra visited the appellant in Siu Lam Psychiatric Centre, the appellant spoke to her about “missing pieces” she needed to put together. On one visit, she asked Mrs Samra how the deceased was. Mrs Samra replied: “Honey, he’s gone, you know that”.
202. Ms Lamb, whose children went to the Hong Kong International School, spoke of the appellant having a black eye towards the end of October 2003. However, with regard to this observation, it is right to mention that neither of the doctors consulted by the appellant or Mrs Samra, who had dined with the appellant in late October, made any mention of seeing the appellant with a black eye at that time.
REBUTTAL EVIDENCE
203. When the defence case had closed, the prosecution applied to call evidence to rebut the appellant’s account that she had been attacked by the deceased with a baseball bat. The application was not opposed.
204. Dr Pang Chi-ming was recalled. He was asked whether he had been able to detect the presence of any blood on the baseball bat (Exhibit D42) which measured 76 centimetres in length and weighed 694 grammes. He had not been able to do so. Dr Pang had also carried out tests for human body material on the bat. He obtained a positive reaction on the handle of the bat. He was able to establish that the donor of the human body material was female but, when the results he obtained were compared to the DNA profile of the appellant, the differences were such that, in his opinion, she could be excluded as the donor of the human body material. In short, therefore, a woman had grasped the handle of the baseball bat but that person was not the appellant.
205. Dr Wong Koon-hung was also recalled to deal with his examination of the two-figurine ornament in conjunction with the baseball bat. He specifically looked for traces of metal inside the pillow case into which the baseball bat was said to have been placed by Mr Clarke as well as on the baseball bat itself. He also tried to establish whether the baseball bat could have damaged the base of the ornament.
206. Dealing with each test in turn, Dr Wong found no traces of metal inside the pillowcase. Similarly, he found no trace of metal on the baseball bat. As to whether the bat may, nevertheless, have damaged the ornament, Dr Wong found no trace of wood or paint to the base-plate which, as we have said earlier, was composed of almost pure lead. Dr Wong had performed “contact” tests with paper and found that this left smears. Hence, he would have expected lead smears to have been left on the baseball bat if it had been in contact with significant force with the ornament but he found none.
207. Amongst other tests carried out by Dr Wong, he subjected sample sheets of lead to various degrees of force. One such test involved the manual application of force from sample baseball bats onto lead sheets which were clamped onto a bench. This caused quite a regular arch to form in the lead sheeting. It also left a wood-grain pattern from the baseball bats on the lead and a lead smear on the baseball bats.
208. A final test was performed to give an impression of the impact from baseball bats onto lead sheets which Dr Wong described as forming a “widened V-shape”. When he compared the impression left behind on the damaged base-plate, Dr Wong found no such regular shape or arch. The indentations on the base-plate were irregular in shape.
209. In the result, Dr Wong formed the view that his tests conclusively showed that the baseball bat, Exhibit D42, had not come into contact with the base-plate in any circumstances where significant force had been used. Hence, in his opinion, that bat had not caused the distortion in the base-plate used by the appellant to kill the deceased. Furthermore, he found that the base-plate was more resistant to bending than the sample lead sheets he had used for his experiments so that even greater force than he had used in his tests would have been needed to make the base-plate bend. Dr Wong said that one of the baseball bats used in the tests had split. In any event, if the baseball bat, Exhibit D42, had been used to damage the base-plate, Dr Wong said that some metal from the ornament would have been found on the bat and he would have expected to find a wood-grain pattern visible on the base-plate. Furthermore, some damage would have been done to the bat. Nothing of this kind was found.
GROUNDS OF APPEAL
210. Mr McCoy advanced thirteen grounds of appeal most of which related to complaints about various aspects of the summing up. However, under grounds 5 to 8, it was submitted that there had been irregularities at trial.
Ground 1: Timing and manner of the summing up
211. The 1st ground of appeal was divided into two parts, the first of which criticized the judge for having “entered the arena as an advocate by the timing and manner in which he commenced his summing up to the jury immediately before the luncheon adjournment on Tuesday, 30 August 2005”.
212. The judge commenced the summing up shortly before breaking at 1 pm on 30 August 2005. He began by setting the scene, reminding the jury about the discovery of the deceased’s body on 7 November 2003 after the appellant had reported on 6 November 2003 that he was missing. The judge then embarked on a thumbnail sketch of the case for the prosecution which he interrupted for the luncheon adjournment. After the jury had left court, the judge provided counsel with the written directions which he proposed to give to the jury subject to any observations they might wish to make about them.
213. The court resumed at 2.29 pm when defence counsel raised objections to the judge’s proposed written directions and the judge agreed not to provide them to the jury in that form. The jury then returned to court at 2.35 pm and the judge continued with his overview of the prosecution’s case which he immediately followed with a synopsis of the defence case.
214. Nothing could have been more helpful to the jury at the end of a lengthy trial in which a great number of issues had been raised. The manner in which this was done was clear and concise. There was, in our opinion, nothing irregular about the “timing and manner” in which the judge commenced the summing up. On the contrary, the practice followed by the judge was a model which is to be commended. No time was needlessly lost at this or any other stage of the trial. The time was utilized to its full potential. In the words of Mr McCoy, this had been a “complicated and demanding trial” and, having complimented counsel on both sides in the course of his submissions, he was candid enough to remark that it had been “very well tried”. In the present context, we need do no more than endorse those words.
215. The second part of this ground raised what was said to be a unique proposition in Hong Kong. This was that by an examination of the “timing, speed and manner” of the judge’s summing up, it was “unbalanced and unfair” looked at in the light of a joint expert forensic linguistics’ report compiled on or about 11 March 2008 by Dr Chris Heffer and Dr Frances Rock of Cardiff University.
216. Although this so-called unfairness was described as not having been a “conscious” result of the way the judge had summed up, particular emphasis was placed by Mr McCoy on the fact that the judge had dealt with “the major part of the defence case on the morning of Thursday, 1 September 2005, at a speed which was significantly faster in the pace of delivery than that adopted when [the judge] summed up the prosecution case”. It was also pointed out in this ground that this part of the judge’s summary of the evidence lasted for 148 minutes without a break, in contrast to the speeches of counsel and to the earlier portions of the summing up which the judge had ensured were punctuated by regular breaks to assist the jury to concentrate.
217. In support of this aspect of ground 1, Mr McCoy argued that the expert forensic linguistics’ report should be admitted pursuant to s. 83V(1) or (2) of the Criminal Procedure Ordinance. Having considered the report de bene esse , we ruled that it should not be admitted. As a consequence, this ground failed, at least to the extent that it relied on this evidence. We now give brief reasons for our rejection of this evidence.
218. It is well recognized that the opinion of an expert is admissible in criminal proceedings when a topic is raised which calls for expertise falling outside the knowledge to be expected of the judge or, if appropriate, of the layman. As Lawton LJ stated in R v Turner [1974] 60 Cr App R 80 at 83:
“An expert’s opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary.”
219. In short, we were satisfied that we were amply qualified to form an opinion about the fairness of the summing up without the benefit of the academic and largely theoretical assistance which it was said Drs Heffer and Rock could lend. The essence of their conclusions was that relatively complex language had been used throughout the summing up and that “with prosecution evidence, this language was delivered at a slower pace and in shorter segments than in those concerned with defence evidence and the bulk of the defence evidence was presented in one lengthy chunk”. Arising from the length of the final section of the summing up, it was a stated conclusion of the experts that “reduced concentration may have resulted in impaired comprehension and ultimately impaired recall of the review of the defence evidence”.
220. It was accepted by Mr McCoy, who informed us that he had listened to an audio recording of at least some parts of the summing up, that the judge had maintained a measured and clear delivery throughout. This is borne out by the experts’ report in which it is stated that the “typical speaking rate across the whole summing up was 136 words per minute”. There was apparently a difference of fifteen words a minute in the speaking rate of what was described as the prosecution and defence summaries, respectively. However, when a comparison is made to the normal speech range for “spontaneous monologue” or “reading aloud” the norm appears to be between 150 and 224 words per minute. On any view, therefore, the judge’s delivery was slow.
221. It is probably unnecessary to elaborate on our reasons for rejecting the proposed evidence derived from the report prepared by Drs Heffer and Rock and it therefore will suffice for present purposes to provide in the briefest form a number of other shortcomings in their proposed evidence.
222. First, each segment of what was described in the report as “the judge’s review of prosecution and defence evidence” included, as the report conceded, large portions of evidence relating to cross-examination. In the result, when the judge referred to the prosecution’s evidence on a particular point, more often than not he would then helpfully refer to the stance taken by the defence on the same issue. This was a far cry from the kind of summing up which we unfortunately encounter from time to time where the evidence in complex cases such as this is summarized in strict compartments, witness by witness, in the order in which each of them was called, without any effort to provide a sensible chronology and without reference to the criticisms made of that evidence by the other side. Such summings-up provide little assistance to the jury in arriving at a coherent picture revealed by the evidence.
223. Here, the numerous strands of evidence were drawn together, skilfully and painstakingly, with close attention to accuracy and detail. What is described as a review of the prosecution’s evidence included many of the points made in the defence case. Similarly, when the defence case was presented, the judge dealt with points made by the prosecution as they became relevant to the topic with which he was dealing. In this sense, it was a travesty for the experts to have treated the sections of the summing up which summarized the testimony of prosecution witnesses as a review of the “prosecution case” and those which dealt with defence witnesses as the “defence”. This was a highly professional summing up in which labels giving such a restrictive description are inaccurate.
224. Secondly, although a highly important section of the defence case was summed up by the judge in the final portion of the summing up on 1 September 2005, when he spoke for 2 hours and 28 minutes without a break, the judge maintained his well-ordered habit of dealing first with each point raised by the defence on particular issues and then, before turning to the next topic, he covered the cross-examination on that point. In this way, the judge managed to deal with what remained of the appellant’s testimony in-chief and her replies in cross-examination in just twenty-five pages of transcript having dealt, on the previous day, in about twelve pages of transcript, with the appellant’s testimony in relation to the events she had described up to the end of July 2003.
225. Having completed his summary of the appellant’s testimony, the judge turned to the evidence given by two doctors who had been consulted by the appellant, Dr Fung and Dr Dytham, before dealing with the testimony of Brooks and Ira Keeshin and other witnesses called by the defence.
226. The final part of the summing up consisted of a summary of the evidence called by the prosecution in rebuttal dealing with the examination of the baseball bat. The jury was then given a pro forma questionnaire setting out the questions they would have to answer when they returned to court with their verdict.
227. The combination of all these factors included in the last portion of the summing up makes it clear that whilst the bulk of the material put before the jury on 1 September 2005 related to the defence case, it was by no means entirely so. It is also worth observing that this part of the summing up was done in the early part of the day when the jury was fresh.
228. Thirdly, while no doubt it is unusual for a judge to sit uninterrupted with a jury for a court session lasting over two hours without a break, the jury was well aware, at the end of this three-month trial, that the judge had it in mind to send them out later on 1 September 2005, depending on the time factor. The judge had asked the jury at 4.30 pm on 31 August 2005, before sending the jury away, if they would like to start at 9.15 am on 1 September 2005 and he had made it clear that if this was not convenient to them, it would be likely that they would be asked to deliberate on 2 September 2005. They were then permitted to talk amongst themselves in the privacy of their room before answering the question. When they returned to court, the jury indicated that they were content with the judge’s proposal to start early on 1 September 2005.
229. As it happened, on 1 September 2005 there were legal issues which the judge had to discuss with counsel which delayed the start of proceedings in front of the jury until (according to the court record) 9.35 am. The judge then summed up until 12.03 pm when the jury were asked to leave the courtroom. In their absence, the pro forma questionnaire for the jury was discussed with defence counsel. At 12.23 pm the jury returned and at 12.30 pm they retired to consider their verdict.
230. All in all, the judge had addressed the jury for 2 hours and 28 minutes without a break producing, we were informed, 21,295 words. The experts’ report which we declined to admit indicated that when this was compared with four murder case summings-up in England (which are of a type, apparently, that tend to contain longer speech segments than summings-up for other crimes) it was found that only one ‘segment’ of one of the summings-up in England exceeded (by over 2,300 words) the number of words in the final ‘segment’ of Lunn J’s summing up. This angle of criticism was, in our view, entirely neutral.
231. Lastly on this aspect of the 1st ground of appeal, whilst we acknowledge that the judge gave breaks to the jury at regular intervals in the final stages of the trial until the point when the lengthy section of the summing up on 1 September 2005 was reached, we consider that it is inconceivable that the judge would not have given the jury a break if he had thought it necessary or that counsel would not have invited him to do so if the jury were observed to be in need of one.
232. We have noted that throughout the transcript of this trial, which we have in full, the judge is to be seen keeping the interests of the jury very much in mind. He extended to the jury great courtesy from start to finish. By way of example, counsel were constantly asked during legal submissions in the jury’s absence, how long they would be so that the jury could be kept informed of the position.
233. The criticism which was also made in the experts’ report, that perhaps the content of the summing up was too much for a jury to comprehend when their first language was not English, failed to take into account that none of the material placed before them by the judge was new to them. In addition, jurors for whom English is a second language cannot be selected for a trial conducted in English unless they have attained a certain level of education which qualifies them to sit.
234. We are satisfied that there was nothing about either the timing or manner of the summing up which could have created any unfairness to the appellant and there was nothing to suggest any lack of comprehension on the part of the jury about any aspect of the proceedings.
235. It is noteworthy that counsel for the appellant did not invite us to listen to the recording of the summing up or to any part of it. We have no doubt that if were there anything of substance in the complaint about the speed at which part of the summing up was delivered, we would have been invited to do so. The experts have, it is common ground, no experience of jury trials in this jurisdiction, and it may safely be said that the court’s combined practical experience of the conduct of jury trials in this jurisdiction (and elsewhere) is such that we would have been in a sound position to make the relevant assessment. Given that counsel was not prepared to invite us to listen to the summing up for ourselves, we dare say that he must have had little confidence in the value of the reports in support of this ground.
Ground 2: Miscellaneous criticisms of the summing up
236. In the twenty-four pages of the perfected grounds of appeal settled by Mr McCoy, about fifteen full pages were devoted to the 2nd ground of appeal entitled: ‘Failure to address salient features and core issues of defence case in summing up’. The essence of this ground was divided into two closely connected parts before being particularized in massive detail. The first part suggested that the judge had “failed properly or at all [to] address the core issues of the defence case”. The second part described the judge as having “delivered an unfair and unbalanced summing up which exhaustively recited the prosecution case” but failed to present the defence case in a “balanced manner”.
237. It is immediately apparent from the general tenor of this ground that it was in stark contrast to the way Mr McCoy came to present his arguments before us on the 1st ground. We have already referred to the praise which Mr McCoy had expressed for the judge in handling the very difficult task before him in the summing up. Mr McCoy, in fact, had gone on to say that it was not being suggested that the judge was deliberately unfair but rather that “despite his best endeavours, unfairness resulted”.
238. By the time Mr McCoy came to address the topics raised under the 2nd ground, not surprisingly all of his criticisms had fallen away save one to which we shall turn shortly. Mr McCoy’s contention that there was unfairness on the part of the judge, whether caused consciously or not, was unwarranted and unsupported. There is every indication in the summing up that where there had been arguments for and against a particular proposition, the judge had attempted to deal with these. He did so with meticulous care, reminding the jury in such a way that they could have been left in no doubt as to particular issues they had to decide whenever a disagreement about the testimony of witnesses had arisen.
239. It may be that at the time he drafted the perfected grounds of appeal, Mr McCoy had not been able to read all of the transcripts in the case. If so, he ought to have made plain, when he drafted the written submissions on the appellant’s behalf dated 13 February 2008, that he was intending only to rely on one small aspect of this lengthy ground. As he expressed himself during the hearing, ground 2(g) was “the aspect which is pressed”. Having said that, he nevertheless, without adding any oral argument in support, stated that he “maintained” the entire ground he had set out at such length in writing. This epitomised the shotgun approach to this appeal which we found singularly unhelpful.
240. We do not propose to dwell at length on any aspect of the 2nd ground. It had no substance whatever. In short, it was directed at the way the judge summed up on seven crucial issues, suggesting that the defence case on those issues had not been fairly placed before the jury. These evidential issues related to the expert evidence given about (1) toxicology, (2) the injuries found on the appellant, (3) the two-figurine ornament, (4) blood-patterns, (5) computers, (6) the e-mails sent and received and (7) the police investigation.
241. The evidence on the topic of toxicology was given by Dr Cheng Kok-choi and Professor Yeung Hok-keung, supplemented in part by the testimony of the pathologist, Dr Lau Ming-fai. Mr McCoy made the point in his written submissions that no one had been able to establish the amount of drugs ingested by the deceased so that it was impossible to say what effect the drugs might have had on him. This was a point which had never been in dispute and was well made by the judge when he reminded the jury of Dr Lau’s autopsy report.
242. In relation to this point, we should add that Mr McCoy presented it in a vacuum. There was, of course, powerful evidence outside the toxicological evidence which threw light on the probable effects on the deceased of the drugs he had consumed in the milkshake, most notably the dramatic effect this concoction had had on Mr Tanzer and the description of the telephone call which Mr Noh had with the deceased a short time before the deceased was killed. These, and other related matters, were covered by the judge with complete accuracy and fairness.
243. The medical evidence about the injuries observed on the appellant’s body was provided by Dr Li and Dr Dytham. Mr McCoy argued that the judge failed to direct the jury which of the injuries suffered by the appellant were consistent with her having been in a fight. This was an extraordinary proposition to have made bearing in mind that on the appellant’s account she had been struck by the deceased with a baseball bat and nothing approaching the kind of injury to be expected from such an assault was found upon her.
244. The judge covered the medical evidence in full. This included a detailed description of the injuries found on the appellant by these doctors. Whether these injuries were the result of a fight with the deceased, as the appellant alleged, or came, as the prosecution alleged, from the appellant’s later exertions when clearing up the scene, including moving the deceased’s corpse from the bedroom to the sitting room, wrapping it in various covers and leaving it behind the sofa, was left to the jury to determine. One example of the difference between the way the prosecution and the defence approached this topic related to what appeared to be carpet burns on the appellant’s knees. The judge reminded the jury that Dr Dytham had said these could have been caused while pushing and pulling the deceased’s body while kneeling on the carpet. The judge immediately went on to remind the jury that this was “also consistent with [the appellant] having been pulled across the carpet as described in [her] account of the fight”.
245. Mr McCoy submitted that when the judge dealt with the two-figurine ornament, or ‘statue’ as it was frequently referred to, only the matters which supported the prosecution’s case theory were mentioned to the exclusion of “all evidence that undermined or detracted from that theory”. However, the evidence which was given on this topic by Dr Wong Koon-hung was extensively summarized by the judge. The summary, of necessity, fell into two parts. In the first instance, Dr Wong’s testimony related to matters as they stood before a baseball bat had been produced by the defence. A considerable time after the judge had summed up that evidence, he returned to the topic when dealing with Dr Wong’s evidence in rebuttal.
246. The aspect of the 2nd ground which Mr McCoy “pressed” in sub-paragraph (g) was a suggestion that the judge had failed properly to summarize the rebuttal evidence regarding the tests Dr Wong had conducted. Amongst the examples taken by Mr McCoy to illustrate what had been omitted from the summing up, he stated that “Dr Wong failed to conduct hardness tests in relation to the laboratory lead sheets and the base-plate [of the statue] … and in relation to the baseball bats”. Yet the suggestion that the judge failed to make reference to this aspect could not have been further from the truth. The judge told the jury in terms: “[Dr Wong] attempted to conduct a ‘hardness test’ on the ornament, the two lead sheets and the three baseball bats but they were all too soft for the equipment available in the Government Laboratory”.
247. The next example taken by Mr McCoy of what he suggested was an omission on the part of the judge on this topic, was that Dr Wong had “failed to make ingot base-plates for the purposes of his laboratory tests”. The judge reminded the jury that Dr Wong “constructed two samples of lead sheets upon which to perform tests. They were made from sheets of lead that were rolled over one another in layers”. The judge further reminded the jury that Dr Wong recognized the difference between the base of the ornament and that on which he tested and said:
“In re-examination [Dr Wong] said that the base plate of the ornament was more resistant to bending than the lead sheets that he had used; accordingly, greater force would have been applied to cause it to bend. As a result, he would have expected some wood grain pattern to have been left behind on the base plate of the ornament if it had been struck with the baseball bat, Exhibit D42.”
248. Mr McCoy did not attempt to enlarge on ground 1(g) as it appeared in the perfected grounds of appeal when he provided his written submission and he barely did so in oral argument. We therefore do not propose to dignify this aspect by going into any greater detail about other matters raised in that ground apart from dealing with Mr McCoy’s suggestion that Dr Wong’s original report (in rebuttal), dated 5 August 2005, had been “significantly altered by his superior who had drafted a new conclusion for insertion into Dr Wong’s report”.
249. Obviously, such a suggestion cannot be ignored. This was an unworthy statement to have been made and, if it was intended to be an attack on Dr Wong’s integrity, as it seems to have been, it was wholly unjusitifed. Dr Wong had explained in his evidence how he had sent a draft of his report to his superior at the laboratory. His report made reference to the baseball bat as not appearing to have made “contact” with the ornament. Dr Wong’s superior made a comment in pencil on the draft to the effect that “contact” could only be excluded if “significant force” had been used.
250. Aside from the fact that it was not, in itself, a matter for criticism that one scientist should check the work of another to ensure accuracy before a final conclusion or form of words was disseminated in a report, here it was undisputed that there were no traces of metal from the ornament to be found on the baseball bat and, equally, there were no traces of the baseball bat to be found on the ornament. However, the unqualified reference to lack of “contact”, at first used by Dr Wong when he was explaining that contact between the baseball bat and the ornament could be excluded, was plainly inappropriate as his superior had correctly appreciated. No contact between the two objects implied that even the lightest touch could be excluded and this was plainly not what Dr Wong was trying to convey in his report. A light touch of the baseball bat on the ornament was also not what this case was about. The appellant had described a blow to the ornament which the defence had attempted to make out was the cause of the curvature in the base-plate. Obviously, this would have been a heavy blow. Moreover, the judge had dealt with the issue comprehensively.
251. There was no change of mind, or alteration of any conclusion, on the part of Dr Wong and Mr McCoy was engaging in semantics when he suggested that there had been.
252. Turning next to the blood pattern analysis conducted by Dr Lun Tze-shan, Mr McCoy’s complaint was that the judge had failed to explain to the jury “the weaknesses and flaws in both the methods and results of Dr Lun’s enquiry”. One example used by Mr McCoy, amongst many, to support this contention was that the judge had “wrongly directed the jury that it was the defence case that Dr Lun was biased against the defence”. Yet, when Mr King’s final speech to the jury is examined on this subject, it is impossible to reach any conclusion other than that this was precisely the defence case. The judge’s comment was that the jury should “have regard to the stinging criticisms that Mr King made … of Dr Lun’s competence and his independence as an expert. Mr King invited you to form the view that Dr Lun was biased against the defence”. The comment was entirely apt in the circumstances and the judge also reminded the jury of the relevant parts of the cross-examination of Dr Lun where perfectly proper criticisms of his evidence were made by counsel for the defence.
253. We have considered a host of other minor complaints made on this subject in the written argument. These were not referred to in oral argument and, for present purposes, we can see no point in repeating them. In our view, the judge dealt with this topic in a comprehensive and balanced fashion.
254. Similarly, the judge summarized the ‘computer’ evidence with commendable clarity and in sufficient detail to remind the jury of the relevant parts of this evidence almost all of which was available to the jury. Defence bundles containing hard copies of the deceased’s computer entries, and two further trial bundles containing the appellant’s computer entries, produced by the prosecution, were in the jury’s possession. The judge made reference to some of the more important computer entries but he mainly reminded the jury in this regard as to where the materials were to be found in their bundles. No more needed to be said and the significance of the computer entries in the context of the prosecution and defence cases could not have been more obvious.
255. In this context, having regard to evidence that the deceased’s Dell desktop computer had been used to search for gay and anal sex sites, Mr McCoy argued that the judge had been wrong to tell the jury that “they should consider the absence of rectal damage to the appellant as being a matter to consider when evaluating the appellant’s evidence of anal penetration, when there was no evidence before the court that forced anal sex would result in such damage”. This was a reference, no doubt, to a passage in the summing up where the judge reminded the jury, in these terms, of a point made in Mr Chapman’s final speech:
“In his speech, Mr Chapman makes the point that not only did the defendant not complain to anyone, but also the defendant has not put forward any medical evidence to support her testimony that, over a five-year period, she was subjected to forced anal sex without lubrication which, on occasions, had caused bleeding to her anus. That is a matter for you to consider.”
256. More detailed references to allegations made by the appellant against the deceased of anal sex were covered in the judge’s summing up of the defence case.
257. The prosecution’s point was not only a valid one, it was also an obvious and sensible one and we reject Mr McCoy’s criticism of the judge having reminded the jury of it.
258. The last criticisms made in the 2nd ground were directed at the way the judge had summarized the shortcomings in the police investigation. Some criticisms were easily made. Amongst other things, the police had not searched the apartment with sufficient care to discover all the bloodstained items hidden in cupboards so that it was not possible to say with any degree of certainty that the unused prescription drugs, if there were any, supplied to the appellant by Dr Fung and Dr Dytham’s surgeries were not still somewhere in the apartment at the time the police had completed their examination of the scene of the crime.
259. There were several other obvious shortcomings in the way the case was investigated. These were listed by Mr McCoy in the perfected grounds of appeal. This said, they had no real significance and it may be that by the time Mr McCoy drafted his written submissions some time later, he had recognized that this was so because the focus of his oral submissions was markedly different. In particular, Mr McCoy turned his criticism towards what he termed “inaccurate and unqualified statements that unfairly bolstered [the] prosecution case”. This suggestion was not borne out. The so-called inaccuracies Mr McCoy referred to were largely those of his own making or so minor as to be insignificant in the overall context. He gave, as one example, the judge’s reference to Mr del Priore leaving the Kissels’ Vermont house in the “early morning” whereas, he submitted, Mr del Priore “had left at 10.40 pm …” The judge in fact told the jury that Mr del Priore’s van “was at the premises between 10.40 pm and 12.25 am” which accurately reflected the evidence given by Mr Gatta of his surveillance on 24 July 2003. In any event, the matter was of no consequence as it was not an issue at trial that the appellant was having an affair with Mr del Priore.
260. On the subject of the many lies told by the appellant after she had killed the deceased, it was submitted in oral argument but neither in the grounds of appeal nor in the written submissions that in the circumstances, the judge wrongly gave the jury a lies direction without ever outlining the deficiencies in the evidence [detailed in the 2nd ground of appeal].
261. In our opinion, this was a proper case in which to have given directions on the approach which might be taken by the jury to the lies the appellant undoubtedly told. Mr McCoy did not suggest that the actual directions given on lies contained any error of law. The necessity for such a direction arose because so many people were given a false account by the appellant which had direct reference to the deceased’s death. By way of examples, Min was told on 3 November 2003 that the deceased had left the apartment because there had been a fight and Connie was told on 4 November 2003 that he may have checked into a hotel. Mr Noh was fobbed off on 3 November 2003 with the excuse that there was a “family issue” and that the deceased would telephone him back. Ms O’Shea spoke to the appellant on 4 November 2003 and was told the deceased had left the apartment after a fight and, in later calls, the appellant implied that the deceased was alive when saying, in answer to Ms O’Shea’s questions, that the deceased had not taken his keys or his car. Similarly, what had been said by the appellant to Dr Dytham on 4 November 2003 could only have left the impression that the deceased was alive and, on 5 November 2003, when the appellant telephoned to find out if the results of the X-rays were known, she told Dr Dytham that the deceased had not yet returned home. The appellant told her father that the deceased had left home after he had beaten her up.
262. At the same time as she was lying to these persons and to others, including the police officer at Aberdeen Police Station when the ‘missing person’ report was made, there was an abundance of evidence about the steps actively being taken by the appellant to hide what she had done.
263. Bearing in mind the appellant’s false stories to numerous witnesses and her attempts at concealment of the killing, the judge directed the jury in terms which it is difficult to imagine could have been more fairly expressed and, in these circumstances, it is hardly surprising that Mr McCoy was unable to show that a lies direction had caused the appellant any unfairness.
264. The 2nd ground is without merit.
Ground 3: Directions on the finding of the baseball bat
265. The 3rd ground effectively amounted to a complaint that the judge had directed the jury in a way which was “materially prejudicial to the fair trial of the [appellant]” by suggesting to the jury that there was improper behaviour on the part of Mr Clarke, her solicitor, by retaining the baseball bat from 9 November 2003, when it was put into a pillowcase, until 21 July 2005, when it was handed to the police. The comment made by the judge was that Mr Clarke had been present in court throughout the trial but had said nothing.
266. Mr McCoy abandoned this ground.
Ground 4:Directions on depression and disassociative amnesia
267. It was submitted in the 4th ground that the judge failed to direct the jury correctly about the appellant’s “depression as observed by the medical practitioners” prior to 2 November 2003. The particulars of this ground, were that the visit by the appellant to Dr Dytham on 23 October 2003 had been ignored; that the judge had also omitted the appellant’s visits to Dr Fung; and that the judge “repeatedly and unfairly disparaged the defence case that the appellant had suffered a ‘mental meltdown’ after the killing and that she was, as a result, unable to recall events”.
268. It is not surprising that Mr McCoy placed little or no reliance on the first two aspects of this ground as the judge went to considerable lengths in the summing up to deal with the evidence about the appellant’s visits to both doctors.
269. In relation to the third aspect of this ground, the suggested disparaging of the defence case, Mr McCoy submitted that the judge used the appellant’s behaviour after the deceased’s death to “deny” that she had suffered a ‘meltdown’. Mr McCoy stated that the examples chosen by the judge, such as the visits to Horizon Plaza to show that she was behaving normally, had not been balanced by reference to examples of abnormal behaviour on her part. Whilst conceding that the judge had referred to odd behaviour on the appellant’s part as observed by a number of witnesses, Mr McCoy suggested that these passages should have been utilized to “highlight” the defence argument that the appellant was suffering from a meltdown in order to counter the prosecution’s allegation that she was busily covering up a murder which she knew full well she had committed.
270. This ground has no merit. The judge summarized the essence of the defence description of the appellant as someone who had suffered a ‘mental meltdown’ in precisely the way counsel, Mr King, had used the expression. He did so without in any sense disparaging what counsel had said. One example of this:
“It is accepted on behalf of the defendant that in the days after the death of Robert Kissel, she gave oral accounts to a variety of witnesses who testified in this trial - for example, the helpers, Min and Connie; Bryna O’Shea; David Noh; Dr Dytham; her own father, Ira Keeshin; and the police - of what had happened between them on the evening of 2 November 2003 as to his subsequent whereabouts that are at complete variance with her testimony in this trial, completely different. Mr King invites you to find, in respect of this evidence, not that the defendant was lying in order to cover up the fact that she had killed Robert Kissel, but that she had suffered, as he put it, a mental meltdown.
The defence suggest to you that, in order to view the defendant’s testimony of the events between the spouses on the evening of 2 November 2003 in the correct context and perspective, it is necessary to have regard to the evidence, in particular from the defendant, but supported elsewhere, of the true character of Robert Kissel. They submit to you that Robert Kissel evidenced a controlling nature over the defendant that developed into paranoia. They invite you to note that his response to the defendant walking out on the family holiday in Whistler in Christmas 2002, when he returned to Hong Kong, was to install eBlaster on her Sony computer, and he did that at the end of January 2003.”
271. It is difficult to know what else the judge could have said but Mr McCoy’s contention was that the appellant’s “accounts of the fight also had fundamental similarities”. We disagree.
Grounds 5 and 6: Cross-examination.
272. Cross-examination of the appellant was said to have been inappropriate in that counsel for the prosecution was permitted:
1) to cross-examine the appellant about representations made and affirmations presented on her behalf at an application for bail in November 2004;
2) to put to the appellant for her comment conclusions reached by a psychiatrist who had examined her but who did not testify; and
3) to ask the appellant whether she would consent to the preparation by her psychiatrist of a report and, when she withheld that consent, to ask her why she withheld it.
273. The appellant was arrested on 7 November 2003. On 18 November 2003, she was admitted to the Siu Lam Psychiatric Centre and there she remained until November 2004 under the care of Dr C H Yuen, a visiting consultant psychiatrist.
274. On 1 November 2004, there was a hearing before Burrell J. It was an application for bail. Appearing for the appellant was Mr Griffiths QC instructed by Mallesons Stephen Jacques. That firm has acted for the appellant throughout. In support of that application were filed a number of affidavits and affirmations with exhibits. Bail was granted subject to the provision of a report by Dr Yuen; that report was forthcoming and is dated 3 November 2004. The appellant was released on bail on 4 November 2004. Dr Yuen continued to see the appellant regularly thereafter.
275. Whilst on bail, the appellant was seen by Dr C K Wong, another psychiatrist, who had not previously examined her. He first saw her on 13 January 2005. There was a lengthy interview. He interviewed her again on 20 and 28 January and on 1 and 8 February 2005.
276. It was only on 13 May 2005 that Dr Wong’s report was served on the respondent. This was 18 months after the appellant’s arrest, 13 months after her committal for trial, and sixdays before her arraignment.
277. The question of bail was raised again on 19 May 2005 when the trial commenced before Lunn J, who asked for and, with the appellant’s consent, received a report dated 24 May 2005 from Dr Yuen. In that report, he revealed that since her release on bail in November 2004, he had seen her regularly in his office, that the last time he had seen her was on 9 May 2005 and that he regarded her then as “mentally stable”. So Dr Wong’s report was issued only three days after Dr Yuen last saw the appellant and made that assessment.
278. After service of Dr Wong’s report, those acting for the appellant represented to the court and to counsel for the prosecution that it was their intention to call Dr Wong to testify. The first that the respondent and the trial court knew otherwise was when those acting for the appellant closed her case.
Dr Wong’s report
279. Dr Wong’s report covers 73 pages of the appellant’s account of her marriage and the circumstances of the killing of her husband as well as Dr Wong’s conclusions. He concluded, he said, that:
1) before and at the time of the killing, she 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.
280. There are lengthy passages in the report that cite in direct speech what the appellant told him. Her account of the deceased’s conduct accords with the profile of an abusive man that emerged in her evidence in-chief. It includes detailed descriptions of his alleged drunkenness, violence, and gross sexual abuse. In it, she describes a time in Vermont when she “… thought of putting sleeping pills into his drink. I would be the one to pour him one after another drink till he passed out. I did that for a while. Sometimes it backfired. After more and more scotch, he became more belligerent.” Eventually, according to this account, she put Ambien into his scotch but to no effect. He then added: “She cannot recall for how long did she continue to put sleeping pills into his scotch.” She described his use of cocaine. She spoke of her lover’s concern when he found her depressed.
281. There is then a full section entitled: “The History of Nancy's Psychiatric Illness.” This section consists entirely of accounts given by the appellant to Dr Wong. It records her telling him that after Chinese New Year 2002 she became depressed and found it difficult to sleep. She became even more depressed after she was sent back to Vermont during SARS, but after her return to Hong Kong her depression worsened. She was lonely, alienated and sad and lost interest in many of her activities, including photography. She was unable to concentrate and became forgetful.
282. She told him of two attempts at suicide. Her testimony at trial repeated these allegations. The first attempt occurred in Vermont on the night of 4 May 2003, the night before her husband was to arrive there from Hong Kong. She recounted the history of a cousin who had killed herself. She, the appellant, felt “emotionally connected with [the cousin] in her thought process of leaving the world.” The appellant walked into the garage, sat in the car, turned on the engine and closed the garage door. But images of her children stopped her from going further.
283. There was a second attempt, this time by an overdose of tablets. She was prescribed sleeping pills and anti-depressants by Dr Fung in August 2003 and when she went home that night, she took all the pills. However, that night and for the following two days she vomited.
284. The report then turned to the appellant’s “Current Mental State.” Dr Wong said that she was forthcoming and spontaneous but, when she became agitated, she spoke in a disjointed manner and wandered away from the topic. Her mood was mildly depressed. She had memory gaps. During more than one session, she went into a trance-like state. She described to Dr Wong the events of 2 November 2003 and the deceased’s attack upon her with a baseball bat.
285. Dr Wong concluded that the appellant had “started to suffer from major depressive disorder with onset probably in early 2003” and that thereafter she went downhill. He estimated the degree of severity of the illness in October 2003, noting that by that date she had “cut down her social engagement and other activities. She tried not to meet people.”
286. Dr Wong accepted that the appellant “has a near total loss memory of certain periods of time, for example, 1 November 2003 and for several days after 2 November 2003.” She probably suffered from “a second psychiatric disorder, namely, disassociative amnesia.” There was a third diagnosis, namely, disassociative fugue, in other words an inability to experience the presence of her husband’s dead body. This ended when she was arrested but “the disassociative amnesia continued for several weeks and probably even longer.” He concluded, he said, that she satisfied the criteria for diminished responsibility.
287. In his closing paragraph, he advised that she should “continue to receive psychiatric treatment for the Major Depressive Disorder.” That treatment was to include anti-depressant medication and psychotherapy.
288. The prosecution case was that this report was premised upon lies: the deceased was not the character depicted, far from it; and the assertion of depression was a tale, as was the contention that she had lacked energy and lost interest in her activities, a tale contradicted by evidence of her behaviour witnessed by hosts of others in October and early November 2003. The contention that she had attempted suicide was also a fabrication. Moreover, the suggestion that she had not experienced the presence of the dead body of her husband and had disassociated herself from his death in the days following the killing was manifestly at odds with the objective evidence. The prosecution further asserted that her allegation of amnesia was as false as the rest of the account advanced by her to Dr Wong.
The purpose of the cross-examination
289. The cross-examination to which objection is taken was designed to illustrate a material contrast between the appellant’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 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.
290. The application for bail was supported by a number of affirmations. Two of the affirmations were by Mr Clarke of Mallesons who had acted for the appellant since her arrest and, according to counsel at the bail hearing, had visited the appellant “very frequently”:
291. In the first of these affirmations, Mr Clarke stated that he had the conduct of the case on behalf of the appellant and was duly authorized to make the affirmation on her behalf. He affirmed that he had seen her in custody on numerous occasions and he outlined the evidence that was proposed to be advanced on her behalf at trial. This included years of assault upon the appellant by the deceased, with increased intensity and frequency before November 2003; the infliction by him upon her of degrading sexual practices; her requirement of medical attention in consequence of his behaviour; and his report to others that he intended to have custody of the children. Mr Clarke asserted that based on materials he had seen and instructions he had taken, “the following defences are available to Mrs Kissel in this case, (i) self-defence; (ii) provocation and (iii) diminished responsibility.” He exhibited to his affirmation a note of a medical examination of her on 7 November 2003 at the Ruttonjee Hospital, no doubt intended to support her allegation against the deceased of violence preceding the fatal event. That report recorded that there was “no history of psychiatric disease”.
292. In his second affirmation, again expressed to be one that he was duly authorized to make on her behalf, Mr Clarke informed the court that his firm had requested production from the Siu Lam Psychiatric Centre of updated medical records. He exhibited to his affirmation a true copy of the admission record, signed by a person named CS Chan and also a record updated to 3 July 2004. Mr Clarke invited the court’s specific attention to the fact that “there is no suggestion [in those records] of any psychiatric problem though she not unexpectedly wept when she talked of her children.” He exhibited as well a copy of Dr Dytham’s notes of 4 November that referred to the appellant’s assertions that the deceased had attacked her with his feet and fist and that she had defended herself with a fork.
293. In the exhibited report relating to the appellant’s condition in the first three days after her admission to the Psychiatric Centre, it was recorded that on the day of her admission “suicidal idea” was “denied”. The notes relating to the second day of her detention recorded that the appellant was able to follow staff instructions, “denied… having abnormal perception and never attended psychiatric services. She never had suicidal history . Willing to express her feeling.” (Emphasis added). It was noted that she was visited that afternoon by Dr Yuen.
294. Also presented to the court were three affidavits of those who were willing to stand surety for her appearance at trial: two ladies who deposed that they and one other had visited the appellant on a rotation basis between five to six times a week ever since she had been in prison in November 2003, and a third person who was the husband of that other.
295. The application for bail was opposed by prosecuting counsel, Ms Lai. Although insisting that there was nothing that would warrant any finding of diminished responsibility, she pointed out that nonetheless the appellant was on medication, had been seeing a psychiatrist and should only be discharged from Siu Lam if it was confirmed that there were no psychiatric problems. Mr Griffiths in response urged the court to accept that there was nothing at all wrong with the appellant that would give cause for any concern whatsoever about her psychiatric condition.
296. At the outset of the November 2004 bail hearing, throughout which the appellant was present, the judge noted that the court’s primary concern was whether the appellant would attend her trial. He stated that in this regard the matter that “jumped out of the papers” was the fact that she had for some time been at a psychiatric centre. He wanted to know why that was the case and why she was still there. Counsel for the prosecution stated that the appellant had been admitted because of her emotional condition upon arrest, weeping consistently and not speaking.
297. Shortly thereafter Mr Griffiths explained the delay in making the bail application. He said:
“Our bail application is not founded on the fact that the conditions are not comfortable [at Siu Lam], which they certainly aren’t, and that is not what prompted the bail application.
And, my Lord, what prompted the bail application is that it was felt by counsel then instructed that in a murder case bail could not be applied for or should not be applied for. My Lord, it wasn’t till other counsel came into the case that the true position became known to those who are handling it. My Lord, that’s an unfortunate piece of history.
And the second reason with that is that obviously people wanted to be sure that there was no psychiatric problem or anything of that sort prior to making any bail application. 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, save for some emotional liability . For instance, if the children are mentioned, she tends to get emotional, which is not surprising.
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 there have been psychiatric problems, is also of the opinion that there is no psychiatric element present in the case . So, my Lord, I hope that answers your question on that.
…
Court: It helps certainly, Mr Griffiths. If she was taken to Siu Lam firstly for psychological reasons, what mechanism is there for the authorities coming to the same view that you’ve just … said to me … so that the decision of where she is, is changed?
Mr Griffiths: Well, she’s visited monthly by a psychiatrist. There have been no suggestions from him, either to us or by way of any treatment or counselling or anything of that sort, that she’s in any need of help.
Court: Well, why doesn’t she say – why doesn’t the psychiatrist or psychologist say that there is no need for her to be [there] any more?
Mr Griffiths: My Lord, I have no idea, but doctors don’t always – perhaps government doctors sometimes – do not always respond in the way perhaps your Lordship would.” (Emphasis added)
298. Mr Griffiths turned to the three defences referred to by Mr Clarke. He said that the primary defence was self-defence. He rehearsed in some detail the prolonged history of the deceased’s alleged violence and sexual abuse, said that the appellant’s defence would be supported by the testimony of a marriage counsellor, and that the allegation of an extra-marital affair was based on the flimsiest of foundations. There was, in the event, a good chance of acquittal on the basis of self-defence but:
“…if we were just talking about provocation or just talking, if it arises about diminished responsibility, and diminished responsibility, if it were to arise, would be the heat of the moment diminished responsibility not a psychiatric illness because all the medical reports confirm she has no psychiatric history. Those who’ve seen her after the first couple of weeks or so say that she’s acting, behaving and sounding perfectly normal.” (Emphasis added)
299. Mr Griffiths addressed the court about bail money and the sureties that could be offered. He then returned to the appellant’s “behaviour, conduct, health and mental condition.” In this regard, he referred to Mr Clarke’s second affirmation, in particular to Mr Clarke’s reference to the Siu Lam admission record and Mr Clarke’s express contention “that there is no suggestion therein of any psychiatric problem, though she not unexpectedly wept when speaking of her children.”
300. Mr Griffiths read out the admission record itself, including these passages:
“Consciousness level: alert; mood: neutral; attitude: cooperative; contact: good; speech: relevant and coherent; behaviour: appropriate; suicidal idea: denied . Previous mental history: not applicable. Other things: not applicable.
…
Attended psychiatric services. She never had suicidal history. Willing to express her feelings. Been visited by her friends and solicitor this afternoon. Able to control her emotions after … reassurance … and counselling was given.
…
Appeared stable during visit, in a stable mood.” (Emphasis added).
301. Counsel took the judge to a report dated 2 June 2004 that described the appellant as being composed and stable and then invited the judge to the following conclusion:
“So, my Lord, the psychiatric reports both then and now indicate someone who is in a stable condition. Hardly surprising that she weeps when she thinks of her children.” (Emphasis added)
302. After prosecution counsel had replied, Mr Griffiths addressed a number of miscellaneous matters arising in the course of which he said:
“… Dr Yuen is a psychiatrist who has seen her. On his last occasion to see her he told her she was normal and offered to give evidence to that effect on her behalf, and she told my instructing solicitors that and he is in the process of contacting her.
…
… [The appellant] saw [Dr Yuen] last week, which was when he made this observation. And, my Lord, in our respectful submission, against the background of this, there’s nothing whatsoever to lead to the conclusion that any mental or other behaviour as it’s put in the Ordinance would affect whether or not she turns up at trial.
…
… immediately on her release arrangements are going to be made for a defence psychiatrist to see her and no doubt he will have observations about it. There is no reason whatsoever, in our respectful submission, to suggest that she at the moment is likely to have any psychiatric or other illness, it’s exactly the opposite in the report in June, apart altogether from what Dr Yuen said, offering to give evidence for her.” (Emphasis added)
303. The judge was concerned whether Dr Yuen would continue to see her if she were released on bail and Mr Griffiths replied:
“My Lord, if she is on bail and the prosecution wish to see her, she will undertake to be examined . We shall of course also ourselves, which is not at the moment easy to do in Siu Lam, we ourselves intend to have her also examined.” (Emphasis added)
304. It can readily be seen why the prosecutor at trial wished to make use of the evidence advanced, and the stance adopted on the appellant’s behalf, at the November 2004 bail hearing. What was put on her behalf at that hearing contrasted in certain material aspects with the account she had apparently imparted to Dr Wong, which was also the account she gave to the court at trial:
1) An entire section of Dr Wong’s report was dedicated to “The History of [the appellant’]s Psychiatric Illness.” Yet the clear effect of the evidence produced and the submissions made on the appellant’s behalf at the bail hearing was that there was no such history.
2) Relying on the history provided by the appellant, Dr Wong concluded that a major depressive disorder manifested itself in early 2003, from which point it became progressively worse. Yet those who knew her well were said by Mr Griffiths to vouch for the fact that the appellant was “the woman she was before” – that is to say, before the killing – namely, “perfectly normal.”
3) In manifestation of her depressed condition she had, so she had told Dr Wong (and the trial court), twice within the year preceding the killing of the deceased, attempted suicide. Yet, it was represented on her behalf that she had no history of attempted suicide, an issue of importance to a bail application.
4) According to Dr Wong, the appellant suffered from a major depressive disorder at the date of the killing and thereafter. Yet the clear implication of the submissions made on her behalf at the bail hearing was that no such disorder had been discerned by Dr Yuen. Insofar as it was hinted that diminished responsibility might be an issue at trial, it was emphasized that it would not be allied to a psychiatric history but would be directed at a ‘heat of the moment’ affliction. In addition, she had frequently been visited by her solicitor who, though not a psychiatrist, was put forward as a lawyer well versed in cases with a psychiatric element, and who vouched for her stable condition throughout, save for the emotional upset when her children were mentioned.
5) The appellant told Dr Wong (and the trial court) that she had memory gaps, so much so that he diagnosed disassociative amnesia, a “second psychiatric disorder”. No such suggestion emerged from Dr Yuen, Mr Clarke or the three sureties.
6) According to Mr Griffiths, the appellant was described by her close friends as “perfectly normal” and, generally, as a person happily free of any psychiatric problem, save for “some emotional liability”. By contrast, when seeing Dr Wong in the weeks and months that followed the bail hearing, she presented herself as agitated, speaking in a disjointed manner, wandering from the topic, and sometimes going into a trance-like state.
7) It was said at the date of Dr Wong’s report, 12 May 2005, that the appellant “continued” to labour from the major depressive disorder that had by then affected her for over two years. Yet in his report dated 24 May 2005, Dr Yuen, the specialist who had seen her regularly from the time of her arrest to that date, and who had last seen her a mere three days before Dr Wong’s report, said that since her remand on bail in November 2004 he had found her “mentally stable, had good reality testing and not morbidly depressed in all the interviews but she seldom talked much about herself.” When he last saw her on 9 May 2005, she was mentally stable.
305. On the face of it, the analysis thus far would seem to dictate that these contrasting portraits deserved the jury’s attention, particularly given the promised defence of diminished responsibility.
The cross-examination
306. At trial, counsel for the prosecution, Mr Chapman, challenged the appellant about her alleged memory loss. She asserted that throughout her stay at Siu Lam there were gaps in her memory about the events of and after 1 November 2003. It was the prosecution case that this memory loss was contrived to enable the appellant to avoid explaining her conduct in the days following the killing. She was asked whether this memory problem remained with her in November 2004 when she made the first bail application. Objection was taken to the course that prosecuting counsel was evidently about to pursue and Mr King prayed in aid s. 9P of the Criminal Procedure Ordinance, Cap. 221, the section that prohibits reporting of bail proceedings, and suggested problems of legal professional privilege. The judge ruled that the proposed cross-examination could proceed.
307. At trial, the appellant confirmed that she was present at the bail hearing and that the submissions made by Mr Griffiths were made on her behalf. She was provided with a transcript of the hearing. However, the transcript was not given to the jury and was not made an exhibit. There has been no suggestion that the transcript was other than accurate.
308. The appellant was taken to Mr Griffiths’ submission that there was “no question of any psychiatric problem. They [the three friends who had visited her frequently in Siu Lam] all say she is perfectly normal and the woman she was before this, save for some emotional liability.” She accepted that that was said on her behalf. She was asked whether it was true, and she said that it was. Her attention was drawn to Mr Griffiths’ reference to Mr Clarke’s opinion that there was no psychiatric element present in the case. She accepted that that is what had been said on her behalf and that it, too, was true.
309. Counsel returned to the submissions made by Mr Griffiths, in particular that she had been visited on a monthly basis by a psychiatrist from whom there had been no suggestion that she was in need of any help. Was that true? Yes, she said, according to the psychiatrist. It was pointed out that there was no hint there of any memory loss and her response was that the fact of memory loss was not necessarily indicative of a “psychiatric condition”.
310. Mr Chapman pointed out that there was no mention in the earlier hearing of memory loss. The appellant insisted, however, that whilst in Siu Lam she had told Dr Yuen about it. She accepted that Dr Yuen was best placed to help as to her psychiatric condition whilst she was in Siu Lam; and it was then that she was asked whether she would consent to the preparation of a report by Dr Yuen, a subject matter to which we will return.
311. Then counsel read to her the references by Mr Griffiths to the Siu Lam admission notes and Mr Clarke’s assertion that there was no suggestion in them of any psychiatric problem, either at the time of her admission or in the period from then to June 2004, which was the date to which the records ran.
312. We have referred at § 277 above to Dr Yuen’s report dated 24 May 2005 for the purposes of Lunn J’s consideration of bail. The following exchange between Mr Chapman and the appellant illustrates how that report came to be, without objection, an exhibit:
“… You consented in this Court in May 2005 to Dr Yuen providing a report at the request of his Lordship presiding over this case. You remember that now?
…
A: Yes.
Q: I want to show you that report.
Mr Chapman: The original is probably with the court, my Lord, I have some copies.
Court: Yes Miss Wong … would you show one to the defendant please?
Q: Have a look at this please. Do you agree that that's the report prepared by Dr Yuen with your consent in May of this year?
A: Yes.
…
Q: And you will see that this report reads ….
Court: Before you go any further, do you intend having this exhibited?
Mr Chapman: My Lord, yes.
Court : In which case the jury can follow it from the hard copy. Yes, the exhibit number?
Mr Chapman : 192D.”
313. Mr Chapman referred to almost the whole of that memorandum, in the course of cross-examination. In relation to the finding that the appellant was “mentally stable, had good reality testing and not morbidly depressed in all the interviews, but she seldom talked much about herself”, she was asked whether the paragraph was accurate. She said that they were a psychiatrist’s opinion. She was similarly asked whether it was accurate to say, as had Dr Yuen, that on 9 May 2005, she regarded her mental condition as the same as before and had little to tell him; and she answered that she could only assume that he was making a correct assessment of “our last visit”.
314. Shortly thereafter, Mr Chapman asked the appellant whether it was true that she had been rather reluctant to tell Dr Yuen about herself, and she said that she had told him about herself in “lots of different aspects”. He asked her as well whether she had ever told Dr Yuen about the deceased’s alleged consumption of cocaine, anal sex and her attempted suicide. She provided a lengthy answer which appears to acknowledge that she did not, because, she said, the doctors only appeared interested in whether the patient was taking the prescribed medication. Then:
“Q: Those comments that you have just made, Mrs Kissel, wouldn’t apply to Mr Clarke or your three friends who provided affirmations to the court in support of the bail application, would they?
A: I don’t know. There is nothing psychiatrically wrong with me; I’m not suffering from mental illness. Depression, yes; feeling sad, feeling remorseful, feeling sorrow, yes; suffering from something tragic, yes.
Q: So there was nothing wrong with you in 2003? Is that your evidence?
A: Nothing wrong with me.
Q: In psychiatric terms, Mrs Kissel, is that your evidence?
A: In psychiatric terms, no I don’t believe there is. My memory loss is something that I work at. I don’t think I – I don’t believe that I am suffering from illness, psychiatric illness.
Q: In 2003.
A: I know I have had dealings with depression in 2003.
Q: Who treated you for depression in 2003, Mrs Kissel?
A: Dr Fung.”
315. Mr Chapman returned to the transcript of the (first) bail proceedings. She was asked if it was true that she had told those at Siu Lam that she had no suicidal history. There is room for the view that the answers that followed were evasive, but in the event she said that she did not know whether she had said that at Siu Lam or not.
316. Counsel for the prosecution later moved to the factual underpinning for Dr Wong’s report. He put to her that Dr Wong’s conclusions were in “stark contrast” to the submissions made to the court in November 2004. Objection was taken on her behalf to this line of questioning on the basis that submissions at the bail proceedings concentrated on the appellant’s condition in November 2004. The judge ruled as follows:
“In light of the breadth of the time period of the defendant’s mental well-being addressed in the application for bail in November 2003, I’m satisfied that the question posed is permissible, addressing as it does, relevant and admissible evidence.”
317. The appellant did not agree with the suggestion of a stark contrast. Mr Chapman then put to her – and no objection has been taken to this in this appeal – information which, according to Dr Wong’s report, the appellant had supplied to him. Mr Chapman cross-examined her about that.
Questions about consent to a report by Dr Yuen
318. The appellant had been attended by Dr Yuen since her admission to, and after her release from, Siu Lam. She acknowledged that he was the only psychiatrist that she had seen whilst in Siu Lam and that he was best placed to provide help in understanding her psychiatric condition. Then Mr Chapman asked the following question:
“Do you consent to Dr Yuen preparing a report on you to enable him to give evidence in front of his Lordship and the jury?”
Counsel for the appellant objected but the judge allowed the question on the basis that the matter was highly relevant. Counsel repeated his earlier question:
“In order to assist his Lordship and members of the jury with the best understanding of your psychiatric condition after your arrest in November 2003, do you consent to Dr Yuen providing an expert psychiatric report about you?”
319. The question of Dr Yuen providing a report arose in this way. By letter dated 9 May 2005, Mallesons advised the Department of Justice that the firm, “…will shortly be serving a psychiatrist’s report which will be relied [on] in the defence case. The report is in the process of being finalized and should be available for service later this week. We note that when we foreshadowed this some months ago you indicated the prosecution would retain Dr Yuen to respond, as he has been seeing the defendant from time to time. We assume that the prosecution wish the defendant to attend upon Dr Yuen in the near future and you may care to schedule appointment(s) in the upcoming days .” (Emphasis added).
320. Dr Yuen then responded to the Department of Justice by a letter, dated 13 May 2005, stating that although he had been seeing the appellant since November 2003:
“… my role has all along been a clinician managing her mental problems. … My role would be quite different if I am going to respond to another psychiatrist’s report or evidence in the trial. In that case, I would be act[ing] [as] an expert witness. I don’t know what opinion I would have at this moment for I know very little about the case and Nancy had never told me anything related to the alleged offence. There is a possibility that my opinion or what I would say in court would affect her mental well-being. As a clinician, this is something which I cannot do for I cannot cause harm to my patient.
Of course, if Nancy is still willing to be examined by me and allows me to respond to another psychiatrist report or evidence despite a possible conflict of role on my part, I would be happy to assess her, give a[n] expert psychiatric report on her, respond to other psychiatric reports and give evidence in court. If Nancy agrees to all these, I’m ready to examine her … on either the 19th or 20th of May 2005….
If another forensic psychiatrist in public service [is] deemed more suitable to be an expert witness in this case, I can arrange Dr SH Lui to examine Nancy.” (Emphasis added)
321. The Department of Justice wrote on 13 May 2005 asking Mallesons to “please obtain your client’s instructions” as to her consent, to which Mallesons responded on 14 May saying that: “We have taken our client’s instructions and she does not consent.”
322. The appellant made clear in her testimony that she would not consent. The cross-examination was used in an endeavour to show that she withheld consent because she realized that Dr Yuen would not support her case of memory loss or of diminished responsibility. She denied that this was the reason, advancing instead the suggestion that Dr Yuen had himself, purely because she was his patient, expressed reservations about the propriety, or effect on her health, of providing to the prosecution a report on the issue of amnesia.
323. She said in cross-examination that she had told Dr Yuen that she had suffered memory gaps and she accepted that, if so, he might be in a position to assist. She was reminded of the assertion by Mr Griffiths in the course of the bail application that there had been no suggestion by Dr Yuen that she was in any need of help.
324. In relation to Dr Yuen, the prosecution, therefore, was seeking to show that the allegation of memory loss that had pervaded the appellant’s testimony and Dr Wong’s report, found no reflection in Dr Yuen’s reports produced at the bail proceedings. The prosecution also sought to show that whereas at that bail hearing they had been offered the opportunity to have her examined, she was at trial unwilling to be examined; a fact that could only, said the prosecution, rationally be explained by her knowledge that such a report would undermine her credibility and the validity of Dr Wong’s conclusions.
325. One of the suggestions originally advanced by Mr McCoy was that the purpose of the cross-examination was to undermine the credibility of the deponents of the affirmations and affidavits. This notion makes little sense. The suggested effect of their testimony was that there was at the date of the bail hearing, as before, nothing psychiatrically amiss with the appellant. An attempt to show that that was a false representation would have been counter-productive to the prosecutor’s more obvious design which was to show the contrast between the testimony of those who had seen the appellant so frequently after the time of her arrest and the proposed evidence of Dr Wong, who had seen her for the first time in January 2005.
326. There was also a written contention that s. 9P of the Criminal Procedure Ordinance, which prohibits the reporting of bail proceedings, forbade the course taken. This, though not abandoned, was not pursued in oral argument, which is as well because the provision has no bearing on the issue.
327. In the event, Mr McCoy refined the suggested objective to a design to counter the heralded defence of diminished responsibility; to undermine the credibility of the appellant by suggesting that she was prone to mould her state of mind or condition according to whatever was expedient; and to refute her claim of memory loss. He later further refined the suggested objective as one designed to establish the appellant’s requisite mens rea .
328. In his reply to the submissions of Mr Zervos on this subject, Mr McCoy’s argument shifted its emphasis to the tension that is said to exist between the protection against self-incrimination and the need for a defendant to testify or otherwise advance factual submissions at a bail hearing if, in reality, he is to have any hope of quelling concerns as to the risk of non-appearance at trial.
329. Fresh written submissions were presented by Mr McCoy on the sixth day of this appeal which substantially altered his approach, from which the following items of complaint can be discerned; that:
1) cross-examination which imported submissions by counsel and affirmations by her solicitor and others at the bail hearing was not permissible because
(i) it is contrary to principle to produce any evidence at trial of testimony proffered or submissions made at a bail hearing and, a fortiori , to permit cross-examination at trial of a defendant about such testimony or submissions; and
(ii) submissions by counsel and the affirmations of the solicitor at a bail hearing could never constitute admissions by the represented individual;
2) insofar as the prosecution wished to establish what the appellant said or did not say to those who had examined her; such evidence had to be produced by the prosecution in the course of its case and not by the device of putting to her statements made by third parties;
3) it was unacceptable to ask, let alone to press, the appellant as to whether she would consent to Dr Yuen providing a report and, when she declined consent, to make capital through cross-examination of that refusal. It was suggested that this was analogous to commenting on the failure to call a witness, and that in any event there was nothing to prevent the prosecution themselves from calling Dr Yuen to establish the appellant’s condition in November 2003 and thereafter and in particular, what she had and had not told Dr Yuen about memory loss;
4) it was not permissible to put to the appellant in cross-examination questions about the opinions of the psychiatrists; and
5) the judge failed to direct the jury as to the approach to the submissions made on the appellant’s behalf at the bail proceedings, in particular to direct them that it was for them to determine whether assertions of fact advanced by counsel were advanced with her authority.
330. Cross-examination of a witness on a previous inconsistent statement of that witness is generally permissible. A witness for this purpose includes a defendant who testifies. The right to cross-examine on a previous inconsistent statement is subject to exceptions as to the substance of the cross-examination, for example, the exclusion of hearsay evidence, of material covered by legal professional privilege and, save in prescribed circumstances, as to bad character; and is subject also to procedural rules.
331. As a mode of attack upon credibility, cross-examination as to prior inconsistent statements has been described as “probably the most effective and most frequently employed.”: McCormick , Evidence (2nd ed), p. 66; and effective cross-examination has been said to lie at the core of a fair trial: R v Henry (2005) 202 C.C.C. (3d) 449 at 454. It is important therefore to ensure that exclusion of cross-examination goes no further than is dictated by sound principle. If it were otherwise, not only would the fact-finder unnecessarily be deprived of a highly probative tool with which to arrive at a just conclusion according to law, but accused persons – and for that matter any other witness – would be furnished with “the right to lie: one can advance any version of the facts without any risk of a comeback at trial; and there one can choose another version with impunity.”: S v Dlamini and others [1999] (4) SA 623 at 677.
332. The first question, therefore, is whether there is anything in the nature of bail proceedings in this jurisdiction that renders the evidence adduced or submissions made in those proceedings immune from revelation at trial and, if not, whether nonetheless there are limitations upon the use to which evidence adduced and statements made at the bail hearing may be put.
333. The exclusionary rule for which the appellant contends is based upon a tension between two competing rights: the right to bail and the privilege against self-incrimination. The presumption in favour of an accused person to admission to bail is expressed by s. 9D of the Criminal Procedure Ordinance though it echoes the implicit requirement of article 9(3) of the International Covenant on Civil and Political Rights to which domestic effect is given by article 39 of the Basic Law. The right against self-incrimination is a long established right at common law but is in any event reflected in article 14(3)(g) of the Covenant.
334. Section 9D provides as follows:
“(1) Subject to this section and section 9G, a court shall order an accused person to be admitted to bail, whether he has been committed for trial or not, when-
(a) he appears or is brought before a court in the course of or in connection with proceedings for the offence of which he is accused; or
(b) he applies to the court before which he is accused to be admitted to bail; or
(c) he applies to a judge under section 9J to be admitted to bail.
(2) An order under subsection (1) may be subject to such conditions as appear to the court to be necessary to secure that the person admitted to bail will not-
(a) fail to surrender to custody as the court may appoint; or
(b) commit an offence while on bail; or
(c) interfere with a witness or pervert or obstruct the course of justice.
….”
335. The circumstances in which an accused person may be refused bail are prescribed by s. 9G:
“(1) The court need not admit an accused person to bail if it appears to the court that there are substantial grounds for believing, whether or not an admission were to be subject to conditions under section 9D(2), that the accused person would-
(a) fail to surrender to custody as the court may appoint; or
(b) commit an offence while on bail; or
(c) interfere with a witness or pervert or obstruct the course of justice.
(2) The court in forming an opinion under subsection (1) may have regard to-
(a) the nature and seriousness of the alleged offence and, in the event of conviction, the manner in which the accused person is likely to be dealt with;
(b) the behaviour, demeanour and conduct of the accused person;
(c) the background, associations, employment, occupation, home environment, community ties and financial position of the accused person;
(d) the health, physical and mental condition and age of the accused person;
(e) the history of any previous admissions to bail of the accused person;
(f) the character, antecedents and previous convictions, if any, of the accused person;
(g) the nature and weight of the evidence of the commission of the alleged offence by the accused person;
(h) any other thing that appears to the court to be relevant.
….
(5) An accused person need not be admitted to bail if he is the subject of a hospital order for the time being in force.
….
(10) An accused person charged with-
(a) murder; or
(b) treason under section 2 of the Crimes Ordinance (Cap 200),
shall be admitted to bail only upon the order of a judge.
….”
336. The procedure in bail proceedings and in particular the prohibition against examination of an applicant for bail as to the alleged offence with which he is charged is dictated by s. 9N:
“In any bail proceedings-
(a) the court may, subject to paragraph (b), make such inquiries of and concerning the person being the subject of those proceedings as the court considers desirable;
(b) the person being the subject of those proceedings shall not be examined or cross-examined by the court or by any other person as to the alleged offence with which he is charged and no inquiry shall be made of him as to that offence alleged;
(c) the informant or prosecutor or any person appearing on behalf of the prosecution may, in addition to any other relevant evidence, submit evidence, whether by affidavit or otherwise-
(i) to prove that the person being the subject of those proceedings has previously been convicted of a criminal offence;
(ii) to prove that the person being the subject of those proceedings has been charged with and is awaiting trial on another criminal offence;
(iii) to prove that the person being the subject of those proceedings has previously failed to surrender to custody;
(iv) to show the circumstances of the alleged offence, particularly as they relate to the probability of conviction of the person being the subject of those proceedings;
(d) the court may take into consideration any relevant matters agreed upon by the informant or prosecutor and the person being the subject of those proceedings or his counsel; and
(e) the court may receive and take into account any other material or representations which it considers credible or trustworthy in the circumstances.”
337. Despite the presumption in favour of bail, there will be cases in which the seriousness of the offence or other factors will in themselves present a significant risk of flight; in other words, where it will not be difficult for the prosecutor who resists bail to establish a strong prima facie case against its grant. In such cases, the reality is that it will in practice then be incumbent upon an applicant, if he or she is to have any chance of release, to make submissions or to present evidence that will allay such concerns.
338. The present case is an obvious example. It is a case in which the applicant for bail was accused of murder and was, in addition, a national of a foreign country where she had her roots and where her family lived. The reality was a need either by her testimony or the testimony of others or by representations made on her behalf, to make statements to the court. Yet, if she were effectively to pursue her application for bail, she was presented with a conundrum if what she chose to say, either herself or by her witnesses or representatives, risked inculpating her at her trial. Policy therefore requires, so the argument runs, that she be free to make her representations and adduce evidence at the bail hearing but that such representations or evidence are then wholly immune from use at trial.
The voir dire rule
339. The analogy was drawn with the immunity from production at trial of testimony given by a defendant in voir dire proceedings conducted to determine the admissibility of an alleged confession. However, authority suggests that that immunity is not total.
340. In Wong Kam-ming v The Queen [1980] AC 247, it was held that it was impermissible for the prosecutor to ask questions in cross-examination of a defendant upon the voir dire seeking to establish the truth of the challenged statement; that where the statement had been ruled inadmissible, the prosecutor was not entitled upon the trial of the general issue either to adduce evidence of what the defendant had said during the voir dire or to cross-examine him on the basis of what he had said; but that where the inculpatory statement had been ruled admissible, there was no justification in principle or otherwise in precluding the prosecutor from cross-examining on material discrepancies between the evidence of the defendant on the voir dire and his evidence on the general issue.
341. The essential tension, or juxtaposition of rights, underlying their Lordships’ concerns was reflected, at 257, in their citation of Chitambala v The Queen [1961] R & N 166 where Clayden ACJ had said at 169-170:
“In any criminal trial the accused has the right to elect not to give evidence at the conclusion of the Crown case. To regard evidence given by him on the question of the admissibility as evidence in the trial itself would mean either that he must be deprived of that right if he wishes properly to contest the admissibility of a statement, or that, to preserve that right, he must abandon another right in a fair trial, the right to prevent inadmissible statements being led in evidence against him … To me it seems clear that deprivation of rights in this manner, and the changing of a trial of admissibility into a full investigation of the merits, cannot be part of a fair criminal trial.”
They cited as well McMullin J (as he then was) dissenting in Ng Chun-kwan v The Queen [1974] HKLR 319 at 328:
“ … What the accused said on the voir dire may not be used as substantive evidence against him or his co-accused. … In this respect evidence on the voir dire is distinguishable from an extrajudicial confession and the basis for the distinction lies in the accused’s right to remain silent upon the trial of the general issue even though he has elected to give evidence on the voir dire .”
342. Their Lordships were surprised that the prosecution had maintained the stance that damaging statements made by a defendant upon a voir dire could, in the face of their exclusion as admissible evidence, be adduced as part of the prosecution case. They then, at 258, addressed the following question:
“But what if the confession is held admissible? In such circumstances, it is unlikely that the prosecution will need to do more than rely upon the confession itself. Nevertheless, in principle should they be prevented from proving in addition any admission made by the defendant on the voir dire ? This question has exercised their Lordships a great deal, but even in the circumstances predicated it is preferable to maintain a clear distinction between the issue of voluntariness, which is unknown relevant to the voir dire , and the issue of guilt falling to be decided in the main trial. To blur this distinction can lead, as has already been shown, to unfortunate consequences, and their Lordships have therefore concluded that the same exclusion of evidence regarding the voir dire proceedings from the main trial must be observed, regardless of whether the challenged confession be excluded or admitted.”
343. They next turned to the question, of some significance to the present issue, namely, whether in the event of the defendant giving evidence on the general issue, he might be cross-examined about statements made by him during the voir dire . They approved what McMullin J had said in Ng Chun-kwan , above, at 328:
“The only way in which evidence of an admission made by the accused on the voir dire may be adduced in evidence is by way of rebuttal if he gives evidence on the general issue and if that evidence is inconsistent with what he has said on the voir dire … we cannot see any warrant for the contention … that everything which transpires in the course of a voir dire is to be regarded as having acquired an indefeasible immunity from all further resort for any purpose whatsoever.”
344. Reference was made to R v Treacy [1944] 2 All E R 229 in which it had been held that it was not permissible to cross-examine in respect of a statement that had been ruled inadmissible. Their Lordships in Wong Kam-ming approved that decision and said that not only was cross-examination as to the contents of a confession impermissible where the court had ruled the alleged confession inadmissible, but was also impermissible if during the voir dire the accused had made self-incriminating statements not strictly related to the confession itself but which nevertheless had relevance to the issue of guilt or innocence of the charge preferred. They continued at 259 F:
“But what if the voir dire resulted in the impugned confession being admitted , and the defendant later elects to give evidence? If he then testifies to matters relating, for example, to the reliability of the confession … and in so doing gives answers which are markedly different from his testimony given during the voir dire he may be cross examined so as to establish that at the earlier stage of the trial he had told a different story? Great injustice could well result from the exclusion of such cross examination, and their Lordships can see no justification in legal principle or on any other ground which renders it impermissible. As has already been observed, a defendant seeking to challenge the admissibility of a confession may for all practical purposes be obliged to testify in the voir dire if his challenge is to have any chance of succeeding, and his evidence is then (or certainly should be) restricted strictly to the issue of admissibility of the confession. But the situation is quite different where, the confession having been admitted despite his challenge, the defendant later elects to give evidence during the main trial and, in doing so, departs materially from the testimony he gave in the voir dire . Having so chosen to testify, why should the discrepancies not be elicited and demonstrated by cross-examination? In their Lordships’ view, his earlier statements made in the voir dire provide as acceptable a basis for his cross-examination to that end as any other earlier statements made by him - including, of course, his confession which, though challenged, had been ruled admissible. Indeed, for such purpose and in such circumstances his voir dire statements stand on no different basis than, for example, the sworn testimony given by a defendant in a previous trial where the jury had disagreed. No doubt the trial judge has a discretion and, indeed, a duty to ensure that the right of the prosecution to cross examine or rebut is not used in a manner unfair or oppressive to the defendant and no doubt the judge is under an obligation to see to it that any statutory provisions bearing on the situation are strictly complied with. But, subject thereto, their Lordships hold that cross-examination in the circumstances predicated which is directed to testing the credibility of the defendant by establishing the inconsistencies in his evidence is wholly permissible ." (The emphasis in this last sentence is added).
See, also, R v Brophy [1982] AC 476.
345. These principles were applied in HKSAR v Sze Sun Man [1998] HKC 231. In that case the statements challenged upon the voir dire had been ruled inadmissible. Nonetheless, the judge took into account the evidence of the defendant’s brother upon the voir dire . The Court of Appeal rejected the notion that it was only the voir dire testimony of an accused himself that was excluded from use upon the general issue.
The approach in bail applications
(a) Hong Kong
346. Turning next to the use at trial of statements made at bail proceedings, the belated endeavours of counsel disclosed the existence of only one Hong Kong case on the point: The Queen v Chan Tung Cheung, CACC198/1995. Mr McCoy pointed out that the bail application as well as the trial to which that appeal related took place prior to the date upon which Part 1A of the Criminal Procedure Ordinance – the current bail provisions – came into effect. One of the grounds of appeal was that the judge erred in permitting the prosecutor to examine the applicant on an affirmation that he had made and used in support of his application for bail pending trial. It was also said that the judge failed to direct the jury that the lie in that affirmation was not probative of guilt. The retort of the respondent to the appeal was that the lie was not relied upon as probative of the applicant’s guilt but went merely to credit. The Court of Appeal held that the cross-examination was legitimate. There is, however, no analysis of underlying principle.
(b) South Africa
347. The issue with which we are now confronted was addressed, albeit not in the context of the same statutory framework, by the Constitutional Court of South Africa in Dlamini , above.
348. The statutory provisions governing bail are covered by Chapter 9 of the Criminal Procedure Act, No. 51 of 1977. As with s. 9G of the Criminal Procedure Ordinance, s. 60 of the Act contains numerous factors to which the court is to have regard in deciding whether to refuse bail. The list is considerably more extensive than our s. 9G but the thrust is similar.
349. The appellant, Dlamini, pleaded not guilty to charges of murder and robbery. His defence was an alibi. But the prosecution was able to show that upon his application for bail in the magistrates’ court, Dlamini had told the magistrate that he had been present when the crimes were committed but had acted under compulsion. At trial, the record of the bail proceedings was ruled admissible and was proved as part of the prosecution case. The appellant did not testify in his own defence and was convicted. The question raised before the Constitutional Court was whether the Constitution “automatically and without more renders statements made by an accused person when applying for bail inadmissible at that person’s subsequent trial.”: Kreigler J at 644, § 17. “If it does,” he said:
“… it would be a material departure from our existing law: it is a well-recognized rule of evidence that a cross examiner may use an inconsistent statement made by a witness on a previous occasion to discredit or controvert the testimony of that witness; and our criminal procedure allows otherwise admissible utterances made by or on behalf of an accused person during bail proceedings to be used against that person at a subsequent trial. The prosecution is entitled to prove the record of the bail application in the course of its case, or it can put the record (or the relevant passage(s) thereof) to the accused in cross-examination. The former is often done when a plea explanation proffered at the arraignment stage of the trial conflicts with what the accused contended earlier in the course of bail proceedings, and the latter when a prosecutor seeks to impugn an accused’s credibility by probing in cross-examination for self contradictions by contrasting evidence at trial with previous statements. Records of bail applications are fruitful sources of such conflicting previous statements by an accused.”
350. At 674, § 86, Kreigler J returned to the central question and the tension between juxtaposed rights:
“What is in issue here is not so much the right of an arrested person to be released on bail, but the different constitutional right enjoyed by every person, upon arrest and thereafter, to remain silent. That right is expressed in a number of complementary ways in the Constitution –
· to remain silent while under arrest;
· not to be compelled while under arrest to make any confession or admission that could be used in evidence against that person;
· to be presumed innocent, to remain silent and not testify at trial; and
· not to be compelled to give self-incriminating evidence at trial.
…
[88] The second leg of the subsection [which rendered admissible at trial testimony of an accused upon a bail hearing] … is where the snag lies. The judgment in Schietekat [1998 (2) SACR 707, 1999 (2) BCLR 240] found this provision to be unconstitutional by reason of its infringement of the protection against self-incrimination, and asked the rhetorical question: “Is it by fashioning this weapon that those who would seek their liberty are to be discouraged from asking for it?”
351. The court then referred to the fact that in S v Botha 1995(11) BCLR 1489, the prosecutor had tried to put in the transcript of incriminating evidence that the accused had given upon his application for bail and had done so in ignorance of his right against self-incrimination, whereas in Dlamini the accused had been fully informed of his right to remain silent but had proceeded nonetheless to make damaging disclosures while arguing his innocence. On that basis, the two cases were different. However, Kreigler J, at 676, said:
“[93] In any event, I disagree with the reasoning and conclusion in Botha that the record of bail proceedings should be kept distinct from the evidence as to guilt, on the analogy of evidence in a trial-within-a-trial as to the voluntariness of a confession. It is true that evidence given at a bail hearing may ultimately redound to the prejudice of the accused. It can therefore not be denied that there is a certain tension between the right of an arrested accused to make out an effective case for bail by adducing all the requisite supporting evidence, and the battery of rights under 35 … of the Constitution. But that kind of tension is by no means unique to applicants for bail. Nor does its mere existence sound constitutional alarm bells. Choices often have to be faced by people living in open and democratic societies. …
[94] Litigation in general, and defending a criminal charge in particular, can present a minefield of hard choices. That is an inevitable consequence of the high degree of autonomy afforded the prosecution and the defence in our largely adversarial system of criminal justice. An accused, ideally assisted by competent counsel, conducts the defence substantially independently and has to take many key decisions whether to speak or to keep silent: Does one volunteer a statement to the police or respond to police questions? If one applies for bail, does one adduce oral and/ or written evidence and if so by whom? Does one for the purposes of obtaining bail disclose the defence (if any) and in what terms? Later, at trial, does one disclose the basis of the defence under s 115 of the CPA? Does one adduce evidence, one’s own or that of others? Each and every one of those choices can have decisive consequences and therefore poses difficult decisions…
[95] In effect the reasoning in Botha wishes to give the accused the best of both alternatives or, as it was put bluntly in Dlamini , the right to lie … . However, the protection of an arrestee provided under the right to remain silent in the Constitution – or the right not to be compelled to confess or make admissions – offers no blanket protection against having to make a choice. It is true, the principal objective of the Bill of Rights is to protect the individual against abuse of State power; and it does so, among others, by shielding the individual faced with a criminal charge against having to help prove that charge. That shield against compulsion does not mean, however, that an applicant for bail can choose to speak but not to be quoted. As a matter of policy the prosecution must prove its case without the accused being compelled to furnish supporting evidence. But if the accused, acting freely and in the exercise of an informed choice, elects to testify in support of a bail application, the right to silence is in no way impaired. Nor is it impaired, retrospectively as it were, if the testimony voluntarily given is subsequently held against the accused.
[96] … As explained in Nomzaza [1996 (2) SACR 14 (A)], there is no general rule at common law excluding from the evidentiary material at trial incriminating or otherwise prejudicial evidence given by an accused at a prior bail hearing; but, if the admission of such evidence would render the trial unfair, the trial court ought to exclude it.
…
[98] … The question to be asked … is therefore still not whether, somehow or other, the right to silence was imperilled by the accused having on advice elected to speak. Under the Constitution the more pervasive and important question is whether the admission of the resultant evidentiary material would impair the fairness of the trial. If it would, the evidence ought generally to be excluded. If not, there is no basis for excluding it. There is no warrant for creating a general rule which would exclude cogent evidence against which no just objection can be levelled. The trial court must decide whether it is a valid objection, based on all the peculiar circumstances of the particular case, not according to a blanket rule that would throw out good and fair evidence together with the bad. Thus, in Dlamini there can be no conceivable objection to the trial Court having taken into account what the accused had said when pressing his bail application.”
352. This policy to allow the introduction at trial of statements – even incriminating statements – made at a prior bail hearing, subject only to the duty of a court to exclude evidence that would impair a fair trial, has not been adopted in other jurisdictions, where the courts have tended to proceed analogously with the principles applied in relation to statements made upon voir dire proceedings.
(c) New Zealand
353. Counsel’s endeavours have produced no relevant authorities either from Australia or from the United States.
354. A recent relevant overseas judgment is R v Darwish [2006] 1 NZLR 688, a judgment of the High Court in New Zealand. Darwish was another case in which the prosecutor sought to have admitted as part of the prosecution case at trial incriminating evidence in the defendant’s affidavit in the prior bail proceedings. Winkelmann J summarized the principles that have emerged from Wong Kam-ming and Brophy and suggested that the rationale by which there is generally excluded from the trial on the general issue statements made in the course of a voir dire applied equally in the case of bail hearings, noting that it was important that an accused person should not feel inhibited in disclosing anything relevant in an application for bail. He went on, at 707, § 129:
“However, against this must be balanced the concern that should the accused be able to present sworn evidence at the bail hearing and then later to contradict that evidence at trial without fear of challenge, that would have the potential to bring the administration of justice into disrepute. This concern can be met by the proviso that the evidence contained in the affidavits is not to be adduced by the Crown at hearing, other than to challenge the giving of contradictory evidence should the accused give evidence at trial in a manner inconsistent with the evidence contained in the affidavits .” (Emphasis added)
(d) England and Wales
355. The position in England and Wales also, by analogy, would appear to permit use of the earlier testimony for cross-examination as to credit. The tension between a statutory requirement for disclosure of information that might incriminate and the right at trial against self incrimination was the subject of a ground of appeal in Martin and White [1998] 2 Cr App R 385.
356. Section 77 of the Criminal Justice Act 1988 empowers the High Court to “prohibit any person from dealing with any realisable property, subject to such conditions and exceptions as may be specified in the order.” An application to this effect was made by the Customs and Excise authorities and an order made which required Martin within seven days to swear and serve an affidavit of his means. In Re O and Another (Restraint order: Disclosure of Assets) [1991] 2 QB 520, the Court of Appeal had been concerned about the potential conflict between the power to make such an order and the privilege against self incrimination: it was thought appropriate that in cases where such an order was made conditions should be imposed upon the use to which those affidavits might be put. The standard condition to be made – and made in Martin – was that: “No disclosure made in compliance with this order shall be used as evidence in the prosecution of an offence alleged to have been committed by the person required to make that disclosure or by any spouse of that person.”
357. At his trial, in which he was charged with fraudulent evasion of duty, Martin said, as part of his defence, that he owned a company which he had used in certain transactions for the export of goods, which transactions mirrored domestic transactions in respect of which no duty had been paid, so that in the event there was no revenue loss. However, in his s. 77 affidavit which purported fully to disclose his income and its sources, no reference was made to that company. Counsel for the prosecution at trial was permitted to cross-examine him on the affidavit.
358. The submission made on Martin’s behalf upon appeal finds an echo in Mr McCoy’s submission to this Court. It was that the affidavit should never have been referred to at trial, still less have become an exhibit for perusal by the jury.
359. Rose LJ, who gave the judgment of the court, stated, at 397, that:
“The imperative for disclosure which underpins the relevant provisions of the Criminal Justice Act 1988, demanded that Martin should have confidence in the words and spirit of the proviso [to the order]. It was not in the public interest that he should be given any justification for being less than candid.”
In those circumstances the court could not, he said, at 397:
“… envisage circumstances in which any such affidavit could become admissible in evidence during a criminal trial at the behest of the Crown, either in the course of the prosecution case or, as was thought to have happened here, by being purportedly proved by way of cross-examination of the accused.”
360. However, to that rule came the following exception:
“But the proviso does not, in our judgment, prevent the Crown from cross-examining the deponent, as accused, to credit, in reliance upon the content of the affidavit sworn pursuant to a restraint order. When Martin gave evidence about substantial trading by [the company] there could be no objection to cross-examination challenging the veracity of that evidence by reference to Martin's failure to mention [the company] in his affidavit. We say this for several reasons.
First, it would be an affront to common sense if Martin could make two seemingly contradictory statements under oath, without any risk that his veracity could be challenged.
Secondly, we find no objection in principle arising out of the proviso. An earlier statement utilised to demonstrate inconsistency, and thus to impugn credit, does not, per se become admissible in evidence: Birch (1925) 18 Cr App R 26, Golder (1961) 45 Cr App R 5… . Provided the use of the affidavit is limited to challenging credit, it is not being used “as evidence in the prosecution”.
Thirdly, however, such use of the affidavit should be subject to safeguards aimed at reconciling the proviso with the immediate needs of the Crown. In our judgment, prosecuting counsel should seek prior directions from the judge as to the precise use which can be made of the affidavit. This will alert the judge and defence counsel to the situation and enable the judge to maintain an oversight that reconciles use of the affidavit with the proviso.” (Emphasis added).
(e) Australia
361. Mr McCoy deployed one Australian decision which he suggested supported his submission. We are satisfied that it does not. It is R v Sanghera [1983] 2 V.R. 130. It is a judgment at first instance in relation to a bail application in the course of which the judge said, at 131, that “[t]he evidence given to enable the judge to make [a decision on whether to grant bail], of course, never goes before the jury”. However, this was not the issue in the case. The issue in the case was whether it was open to the court to receive and take into account evidence that would be inadmissible under the ordinary rules of evidence.
(f) Canada
362. R v Paonessa and Paquette (1982) 66 CCC (2d) 300 pre-dated the Canadian Charter of Rights and Freedoms, s. 13, which states:
“A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in prosecution for perjury or for the giving of contradictory evidence.”
It is a decision upon which Mr McCoy relied but, in our opinion, it does not resolve the matter in the appellant’s favour.
363. The defendant was charged with conspiracy to wilfully set fire to a billiard hall. At the bail hearing, questions were put to him by his own counsel in the course of which he admitted bringing gasoline to the billiard hall. At his trial, prosecuting counsel sought to adduce that evidence. The prevailing statutory provision, s. 457.3(1) of the Criminal Code was in terms very similar to s. 9N(b) of the Criminal Procedure Ordinance. It provided that in any proceedings under s. 457:
“the accused shall not be examined or cross-examined by the justice or any other person as to the offence with which he is charged, and no inquiry shall be made of him as to that offence.”
364. In contravention of that provision, questions directly relevant to the offence with which he was charged were put to the defendant both by his own counsel and by counsel for the prosecution. The court concluded that the statements had been obtained in a manner that was specifically forbidden, wherefore, said Zuber J.A. at 307, the section of the Code “which prohibits the adduction of evidence from the accused as to the offence charged at the bail hearing by implication must prohibit the subsequent admissibility of evidence given contrary to its terms.” Mr McCoy contended that s. 9N embraced the same implied prohibition.
365. As late as the ninth day of the appeal we were handed the decision of the Supreme Court of Canada in R v Henry (2005) 202 C.C.C. (3d) 449. It turns upon the application of s. 13 of the Charter and of s. 5 of the Canada Evidence Act 1985, which provides:
“5(1) No witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.
(2) Where with respect to any question a witness objects to answer on the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering the question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence or for the giving of contradictory evidence.”
366. In the cases reviewed by the Supreme Court, the protection against self-incrimination conferred by s. 13 of the Charter and by other Charter provisions had been tested in several different contexts: where a witness, who was not a defendant, had been compelled (an expression treated by the judgment as including evidence of compellable witnesses: see 465, § 34) to testify in one set of proceedings but was the defendant in the second proceedings; where the defendant in a retrial had been a testifying defendant in the first proceedings but chose not to testify in the second; and where the defendant in the retrial had chosen to testify in both proceedings – and the prosecution sought in the second trial either to introduce as part of its case incriminating testimony given at the earlier proceedings or to cross-examine as to allegedly inconsistent evidence. The court noted that s. 5(2) of the Canada Evidence Act provided to the witness compelled by that section to testify a quid pro quo (reminiscent of the public interest consideration referred to by Rose LJ in Martin and White : see § 359 above) which was expressed in R v Noel (2002) 168 CCC (3d) 193 thus:
“When a witness who is compelled to give evidence in a court proceeding is exposed to the risk of self-incrimination the State offers protection against the subsequent use of that evidence against the witness in exchange for his or her full and frank testimony."
367. A number of earlier decisions were analysed in Henry , including:
1) R v Dubois (1985) 22 CCC (3d) 513, in which it was held impermissible for the prosecution to read in as part of its case at a retrial an admission made by a defendant in the course of his earlier trial, for to do so was to infringe the accused’s right not to be compelled to testify. The prosecutor had to prove his case “without recruiting the accused to self-incriminate”: § 39.
2) R v Noel (2002) 168 CCC (3d) 321, in which a s. 5-compelled witness in the earlier proceedings implicated himself in a murder for which he was then put on trial. The Ontario Court of Appeal held it impermissible to cross-examine him about the earlier incriminating statements but acceptable to cross-examine him upon prior testimony where there was no possibility that the jury could use that earlier testimony to draw an inference of guilt “except to the limited extent that a finding that the accused had been untruthful under oath could be damaging to his defence.”: § 54.
368. In relation to those who had been compelled by virtue of s. 5 of the Act to answer incriminating questions, the court in Henry held that the answers so given were not to be used for any purpose – for that was the express term used by s. 5 – so that necessarily included impeachment of credibility. The distinction made in Noel between cross-examination as to credit and questions going to guilt did not appeal to the court in Henry , because of the view expressed in Henry that it was an unrealistic distinction. The court accordingly held that in any case where the evidence in the first proceedings had been compelled, it was inadmissible in the second proceedings “even for the ostensible purpose of challenging his or her credibility.”: § 50.
369. Henry was a case in which the prosecution had cross-examined both accused as to inconsistencies between testimonies in the first and second trials. In neither trial had the accused been a compellable witness and it was accordingly held that the course taken was permissible. It would have been otherwise, however, had the prosecution in the course of its case simply filed the testimony of the accused given at the first trial. That is because at the second trial the accused were free not to testify and the effect of the adduction by the prosecution of their earlier testimony was indirectly to compel them to testify in the later proceedings.
370. The effect of Henry seems to be as follows:
1) where a defendant has testified voluntarily in both proceedings – typically where he has been a defendant in the first proceedings and a defendant in the retrial – the prosecutor may not file the defendant’s testimony given in the first proceedings as part of its case in the second, for to do so is to infringe his right not to be compelled to be a witness and his privilege against self-incrimination. He may, however, be cross-examined in relation to inconsistencies not only as to credibility but also where the contradiction presented may reasonably give rise to an inference of guilt;
2) where in the earlier proceedings the testimony or statements of the accused have been compelled – whatever his status in those earlier proceedings – it is impermissible for the prosecutor either to adduce his answers at his trial, or to put them to him for any purpose, including the impeachment of credibility.
371. Insofar as Mr Zervos sought to draw support from the court’s conclusion that where a defendant is a volunteer witness in two sets of proceedings, no protection against cross-examination on inconsistencies is provided, the analogy is not useful, for in such a situation there does not exist any tension or juxtaposition of rights that is at the heart of the present issue in this appeal.
372. Insofar as Mr McCoy sought to draw support from Henry , he was bound to recognize that there is in the present case no provision akin to s. 5 of the Canada Evidence Act. He sought, however, to derive comfort from the influence upon the Supreme Court’s thinking that such are the difficulties in practice of the distinction between cross-examination as to credit and cross-examination as to guilt, that the same conclusion should be drawn in this jurisdiction. If we were to find that argument persuasive, the element of earlier compulsion upon which he relied is the practical need of an applicant for bail to present evidence or to have statements made on his behalf.
373. In Henry , the judgment of Binnie J makes several references to the difficult distinction between credibility and incrimination. At 456, § 9 he said that it had:
“… long been recognized that the distinction between credibility and incrimination in this particular context is “troublesome” (as Lamer CJC described it in Kuldip ([1990] 3 SCR 618) at p. 635) and “difficult” (as Martin JA described it in Kuldip ) ... .”
374. As an illustration of this difficulty an example from Kuldip was repeated by Binnie J at 464, § 31 in Henry :
“… a witness at a murder trial ... testifies that the accused could not have murdered the victim in Ottawa because on the day in question they were both in Montréal doing a bank robbery. If the witness were later charged with the bank robbery in Montréal and changed his story at his trial to say that in fact he was in Ottawa that day, Lamer CJC said [in Kuldip ] it would not infringe s. 13 to impeach credibility using the earlier admission (despite the fact the statement was incriminating both when given at the earlier trial and when used at a later trial). However the trial judge must warn the jury “that it would not be open to it to conclude, on the basis of his previous statements, that the accused was in Montréal on the day of the alleged bank robbery or to conclude that the accused did, in fact, commit the bank robbery.” (pp 634-53 [Kuldip ]).”
375. Binnie J commented, at 465 § 34, in relation to this example, that the prior testimony was “undeniably incriminatory when given, and would almost certainly have been taken as incriminatory if allowed into evidence at the second trial.” He noted, at 465-466, § 35 that in Kuldip :
“… the Court was required to resort to reliance on the sometimes difficult distinction between the purposes of impeachment of credibility and incrimination. Although this distinction is well established in the law… its practicality in this particular context is frequently questioned. ..,. It is worth setting out in full what was said by Arthur Martin JA , writing in Kuldip , when it was before the Ontario Court of Appeal:
Furthermore, in my view, where the prior evidence is used ostensibly to impeach the accused credibility only, it nevertheless does assist the Crown in its case and, in a broad sense, may help to prove guilt. It is often difficult to draw a clear line between cross-examination on the accused’s prior testimony for the purpose of incriminating him and such cross-examination from the purpose of impeaching his credibility. If the court concludes on the basis of the accused’s contradictory statements that he deliberately lied on a material matter, that lie could give rise to an inference of guilt. [p. 23].”
376. It was because of this difficulty that the court in Henry was moved to hold that prior compelled evidence should be inadmissible under s. 13 as under s. 5(2), even for the ostensible purpose of challenging credibility.
377. Mr Zervos invited this court to say that, as in South Africa, the use to which evidence upon a bail hearing may be put at trial ought to be left to the discretion of the trial judge. We do not agree. The right to seek bail is a right of the applicant, subject to the prohibition of s. 9N(b), to advance such evidence and to have such statements made on his or her behalf as may be thought helpful in rebutting suggestions of a risk of flight, interference with witnesses, or self-harm, and we endorse the concern expressed in other jurisdictions that that right is to be unfettered by the notion that any wholly or partly incriminating statements made for that purpose will be used in subsequent proceedings for the purpose of incriminating the applicant. The solution suggested by Mr Zervos is not in our opinion an attractive one, for it is a solution that is likely to give rise to uncertainty in application. Nor does it sit well with the intention behind s. 9N which serves to emphasize the right against self-incrimination and from the terms of which provision must flow the proposition that it would be impermissible to use at trial, whether as part of the prosecution case or in cross-examination, evidence from the bail applicant that was taken in contravention of the prohibition of that provision. The discretion suggested would sit oddly as well with the approach to the subsequent use of statements made in voir dire proceedings, an approach that has uniformly been adopted in this jurisdiction, at least since Wong Kam-ming .
378. Mr McCoy, on the other hand, would have us impose a blanket prohibition on the use for any purpose at trial, including cross-examination as to credit arising from contradictory statements, of statements made at the bail hearing by or on behalf of the applicant. To this end, he prays in aid the terms of s. 9N as well as the suggested difficulty in practice, emphasized in Henry , of distinguishing between credibility and incrimination.
379. Section 9N proscribes the examination or cross-examination of the accused person “as to the alleged offence”. The section does not prohibit a person who has been charged with an offence from giving evidence himself as to matters otherwise relevant to bail, and does not prohibit him from adducing or endorsing the statements or testimony of others, whether as to the alleged offence or otherwise. Whilst, in accordance with the authorities we have cited, evidence adduced in contravention of the proscription of s. 9N would be inadmissible at trial, whether as part of the prosecution case or as evidence put in cross-examination, we fail to see anything in the terms of the statutory provision that demands the total immunisation for which Mr McCoy called.
380. We acknowledge that there will be occasions when the distinction between credibility and incrimination will be difficult. However, it is a difficulty that is not newly presented. It is not a difficulty that has caused the Constitutional Court in South Africa, or the courts in the United Kingdom or in New Zealand, concern sufficient to preclude credit-directed cross-examination on prior inconsistent statements that have been made by an accused in proceedings in which it may be said he was indirectly compelled to testify or to have statements advanced on his behalf. Nor is it a concern, so far as we are aware, that has emerged in reported judgments, in the application of the principle emerging from Wong Kam-ming that permits cross-examination as to credit where a statement has been ruled admissible. We note too, and respectfully share, the concern expressed in some quarters in Canada about the apparent effect of the decision in Henry :
“Henry is certainly a useful clarification of the law, and should put an end to attempts by lower courts to distinguish between “incriminating” uses of impeachment evidence by simply forbidding any impeachment at all upon prior testimony covered by s. 13. Whether Henry is a desirable development in the law remains to be seen. The decision prohibits the Crown from cross-examining an accused before a jury about prior inconsistencies – or outright lies – given under oath. This will be difficult for many to accept, for it is well-known that “there are fewer more effective moments than when counsel is able to impeach a witness with what he or she had … spoken on the prior occasion” and when used properly, this technique can accomplish a number of goals. It can demonstrate the incredulity of an accused’s story, open up new avenues of enquiry and show weaknesses in memory or perception. While one can understand the rationale behind the Court’s judgment, the result is likely to provoke heated debate over time.
As Professor Quigley has noted, it is undeniable that:
‘There is, on the surface, something disturbing about an accused being free to testify to one version of events at a prior proceeding, then to another at his/her own trial without being challenged on the inconsistency.’”
Mewkott and Sankoff “Witnesses ” Vol 2. p. 15-23.
381. The stark example imported by the court in Henry from Kuldip (see § 375 above) is of a type that is not likely to present itself in the statutory context with which we are concerned. An accused, pursuing an application in bail proceedings in Hong Kong, would not offer the type of directly incriminating statement made in the Kuldip example, because he could not be examined ‘as to the alleged offence’; and if an incriminating statement of that type were in some other way adopted by him at the bail proceeding, we cannot see how it would be proper to admit it either as part of the prosecution case or by introduction in cross-examination.
382. In our judgment, the total immunity for which the appellant contended goes further than is required for the protection of the rights which are juxtaposed, and to extend it to preclude cross-examination as to credit would be inimical to the interests of justice.
383. We are of the opinion that any evidence adduced in contravention of s. 9N may not be adduced in evidence for any purpose at the trial. This means that it may not be produced by the prosecution as part of its case, nor utilized for the purpose of cross-examination whether as to guilt or as to credit. Furthermore, no evidence adduced by an applicant in bail proceedings may be produced by the prosecutor as part of the prosecution case in the trial of that applicant on any charge related to the offence the subject matter of those proceedings. However, we see no justification in precluding cross-examination of the defendant as to credit at trial in respect of such evidence or statements as have been made by him in the bail proceedings, other than “as to the offence alleged”, that are inconsistent with his testimony at trial.
Adoption of evidence
384. This brings us to the next point, namely, whether the submissions made by counsel for the appellant at the bail hearing and affidavits presented on her behalf were, for the purpose of the present issue, “her” statements.
385. The point is of significance in this case because of the established proposition that, save where expressly provided by statute, it is not permissible to prove as against a defendant the content of a statement made by a third party without calling the maker of the statement to testify as to its facts, although if the contents are put to and accepted by the defendant as true, the contents become evidence against him.
386. Mr McCoy argued that this fundamental rule was breached in the present case. He said that what was put to the appellant, in the cross-examination that is sought to be impugned, were statements made by third parties, not by her, so that if what the third parties – whether counsel or deponents – had said contradicted the evidence of the appellant at trial, they were not her contradictions. Furthermore, said Mr McCoy, what the prosecution has done thereby was to split its case; in other words, to breach the rule that the prosecution is bound to call in the course of its case all the evidence upon which it seeks to rely.
387. In R v Gillespie and Simpson (1967) 51 Cr App R 172, dockets made out by third parties who had not been called by the prosecutor were put to the defendants in cross-examination in order to undermine a defence, but the defendants did not admit the truth of what the dockets purported to record. The principle against splitting a case was touched upon in the judgment, at 175:
“At the trial, and again in this court, there was considerable discussion of the rule of practice on which the court pronounced in Rice (1963) 47 Cr App R 79; [1963] 1 QB 857, and in this court attention was drawn to supporting authority in three speeches in the House of Lords in Jones v DPP (1962) 46 Cr App R 129, which is to this effect, that where the prosecution have available evidence to establish an essential part of the case for the prosecution, that evidence should be called as part of the case for the prosecution, and the prosecution should not, as a matter of proper practice, seek to supplement and complete the case for the prosecution by cross examination of the accused; however, the essence of this case does not depend upon any such rule of practice.”
388. In relation to putting documents made by third parties to a defendant, Winn LJ said, at 176, that:
“It is elementary, at any rate as our criminal law now stands, that it is not competent to prove a fact against an accused person by producing a document in which that fact is recorded without calling the maker of the document to say that what he wrote in the document represented a true statement of fact.”
389. However, at 177:
“As it seems to this court, if a document is produced to a witness and the witness is asked: “Do you see what that document purports to record?” The witness may say: “I see it, I accept it as true,” in which case the contents of the document become evidence against him: or he may say: “I see what is there written, I do not accept that as true,” whereupon that which is purported to be recorded in the document is not evidence against that person who has rejected the contents; it becomes what one might call non-evidence, the document itself being nothing but hearsay.”
390. R v Windass (1988) 89 Cr App R 258 was a case in which the prosecution put to the defendant at trial a diary compiled by the defendant’s girlfriend which contained material inculpatory of the defendant. The Lord Chief Justice said, at 262:
“It seems to us that there are two objections which should properly be made to that line of cross-examination. First of all it is quite improper to ask a witness to explain what a third party means by a document written by that third party. No doubt if this witness had been more experienced, he would have said that that was impossible, but then he would have run the risk of being thought to be too clever. As it was, he found himself in the position of trying to explain to the jury what a third party meant by a document written by that third party without his collaboration.
Secondly, perhaps more importantly, it is, in our judgment, quite improper for counsel to take in his hand a statement which is inadmissible vis-a-vis the witness whom he is cross-examining, let alone allowing the jury to have a copy of the statement in their hands whilst he is doing that, and then to ask the witness to explain, almost sentence by sentence, the highly damaging statements inadmissible against him, which the maker of the document had written.”
391. R v McKenzie [2004] 1 NZLR 181 was an appeal founded on an attempt by prosecuting counsel to cross-examine the defendant about propositions derived from a co-accused’s statement. The Court of Appeal in New Zealand held this to be unacceptable, commenting, at 189, that:
“… such questions may not be referenced back to their source [the contents of a co-accused’s statement] as if the statement was evidence against the accused.”
392. The respondent sought to distinguish these cases on the footing that none is a case in which the prior statements of others have on an earlier occasion been adopted by the defendant for their facts and opinion, and none is a case in which the representations of fact and opinion, suggested to be contradictory, have been made on the defendant’s behalf, with the defendant’s prior approval and knowledge as to content.
393. In our judgment, there is force in that argument.
394. What happened in this case was that the appellant presented at the (first) bail hearing a number of affirmations. All the affirmations thus presented were presented on her behalf and, one is entitled to assume, with her knowledge. Indeed, Mr Clarke expressly affirmed that he was authorized by the appellant to make his affirmation. The affirmations and their exhibits spoke of matters within her own knowledge; in particular of her conduct, her health, and her history, most notably whether she had a history of attempted suicide.
395. The following principle appears to be established:
“... generally, the depositions of viva voce testimony of a party’s witnesses … are not receivable against such a party in subsequent proceedings as admissions. But affidavits or documents which a party has expressly caused to be made or knowingly used as true, in a judicial proceeding, for the purpose of proving a particular fact, are evidence against him in subsequent proceedings to prove the same fact … .”
Phipson on Evidence 16th ed., § 4-23.
396. The proposition in Phipson was that stated by Pollock MR in British Thomson-Houston Company, Limited v British Insulated and Helsby Cables, Limited [1924] 2 Ch 160 at164, as established by cases:
“… in which the party advancing the documents, whether affidavit or deposition, knew of its contents beforehand and elected to put it forward in support of his case. Indeed, as Crompton J. said in Richards v Morgan [(1) 4 B. & S. 657]: ‘It must always be remembered that it is not the obtaining the affidavit or deposition, but the making use of it as true with knowledge of the contents , which is the ground on which such evidence is supposed to be receivable.’” (Emphasis added)
397. Atkins LJ, in a more detailed analysis, and in rejecting the contention that oral testimony by a party’s witness may be used to like effect, said at 168-169 that:
“The first matter that appears material is that admissions can only be given in evidence when made by a party, or his agent authorised to make the admission, and that the evidence of a witness is not a statement made by the party, and that the witness is not necessarily, or, indeed, usually, an agent of the party at all either to make an admission or for any other purpose. …. But it is said by calling a witness to prove a fact the party declares that the evidence given by such a witness is true, and that such a declaration is an admission by conduct. In any event, it is said, it is such a declaration and admission when the party uses the evidence as proof of the fact. Such a contention appears to me to distort the whole relation of party to witness. In many instances, perhaps in most, witnesses are called to speak to facts of which the party has no knowledge, often they are called for that very reason. They speak to events when the party was not present and of facts which he would not have understood if he had been present. Often, indeed, the party himself does not know what witness is going to be called, what he is going to say, or what bearing it has upon the suit. … assuming that the party is identified for this purpose with his advocate is it true to say that proffering or using evidence is a declaration that it is true? I imagine that the most optimistic litigant would shy at such a burden. He would say: I assert the affirmative or negative of the issue of fact found between me and my opponent. I tender the evidence of persons who are prepared to swear to facts which, if true, I believe will support my case; but as the facts are not within my own knowledge I have no means of judging whether they are true or not.”
398. Atkins LJ then discussed the distinction that had been drawn hitherto as to affidavit evidence, albeit qualifying his remark by saying, at p. 171, that “whether these cases are rightly decided need not be determined in this case, for all the cases of this description expressly draw the distinction between affidavit evidence and parol evidence, treating an affidavit read on behalf of a party as a statement directly made by him.” He referred at 172 to Brickell v Hulse 7 Ad. & E. 454 in which Lord Denman had said:
“It is very important that this question should not be left subject to doubt. There can, I think, be no question but that the statement which a party produces on his own behalf, whether on oath or not, becomes evidence against him. There is nothing to distinguish it from the statement made by the party himself. Rushworth v Countess of Pembroke [(1667) Hard. 472] at first seems opposed to this view; for there the defendant was not permitted to use any of the depositions made in an equity suit, where the plaintiff had been defendant. That decision, however, was founded on the nature of the proceedings in equity. A party who uses such depositions does not know, beforehand, what they are; if he did, such cases would stand on the same footing as the present. He can only refer to what he expects will be produced; … It is quite different from a case where a party produces, as part of his own statement, an affidavit of which he knows the contents.”
399. In Brickell , Coleridge J. had remarked that:
“A man does not make all that is said by a witness whom he calls evidence against himself hereafter. In Chancery, the depositions are sealed up from the time of their being taken until publication passes. That is like the case of a party calling the witness, whose evidence he does not hear till it is given. The present is the case of a party using a statement which he has seen before he uses it, and which is neither the more nor the less admissible for being made upon oath.”
400. Where a defendant previously has put forward, in judicial proceedings, facts attested to by the affidavits of others, we see no reason in principle why the same rationale should not apply to criminal cases, at least for the purpose of cross-examination as to credit - especially where those facts are within his own knowledge.
401. By tendering the affirmations in this case and the various reports exhibited, the appellant was in effect saying (as we see from her counsel’s submissions): these are the facts about my state of well-being in the period before, at the time of, and after, the fatal incident of 2 November 2003. She put forward at that hearing, as exhibits to affirmations, exculpatory evidence; for example, doctors’ reports to show that she had injuries in early November 2003. Although they were the reports of others, they were presented as fact adopted by her, in respect of matters within her own knowledge. The same is true for the other evidence she presented at that hearing.
402. She herself knew whether she had shown suicidal tendencies in the past, and the representation made by her by the production of that evidence, including the Siu Lam report, was that she had had none. She herself knew whether or not she had a long history of depression. The history of the suggested depression of which Dr Wong spoke in his report was a history entirely from her own mouth: that she had for long been depressed and could not sleep; how unrefreshed she felt in the mornings; how her mood was even more depressed when she went to the USA; and how it all worsened after her return to Hong Kong. The categorisation of any such depression, if it existed, was for a psychiatrist but the fact of it or its absence was a matter that was within her own experience. By the same token, she knew whether the content of the Siu Lam admission notes to the effect that she was willing to express her feelings, was having no abnormal perceptions, and had never attended psychiatric services, was based on fact conveyed by her.
403. There was no oral testimony at the bail hearing, no evidence the nature or detail of which could not be predicted by her with exactitude, or the content of which was outside her knowledge. The long and the short of these affirmations and exhibits, their assertions and their purpose, were all matters that must be taken to have been known to her in advance of their presentation to the court. By them, and through counsel, she was stating to the court that she had no history of psychiatric illness; was at the date of the hearing and before that perfectly normal, save for the deep upset when her children were mentioned; and that she was and never had been a suicide risk. If it be said – though this has not been argued – that that is an exaggeration of the effect of what was represented at that bail hearing, then that would be a matter of comment that went to the question whether or not there were indeed contradictions. It would not go to the question whether the representations of fact were to be treated as hers.
404. Reliance was placed by both parties to this appeal upon the judgment in Bryan James Turner (1975) 61 Cr App R 67 where at 82 Lawton LJ said:
“Whenever a barrister comes into Court in robes and in the presence of his client tells the judge that he appears for that client, the court is entitled to assume, and always does assume, that he has his client’s authority to conduct the case and to say on the client’s behalf whatever in his professional discretion he thinks is in his client’s interest to say. If the Court could not make this assumption, the administration of justice would become very difficult indeed. The very circumstances provide evidence first, that the barrister has his client’s authority to speak for him and secondly, that what the barrister says his client wants him to say. Counsel should never act without instructions, and they seldom do.”
405. Mr McCoy used that to suggest that since a bail hearing is not in open court and therefore counsel is not robed, the same principle does not apply. We do not agree. It is the formality and nature of the proceedings to which regard must be had and although the rules of evidence are relaxed for bail proceedings, we take the view that an assertion of fact within the client’s knowledge put forward at such a hearing in the presence of the client must be taken to be an assertion made against the background of express instructions and with the client’s approval. We note in this case that not only was the appellant present, but that from time to time instructions were taken from her. In any event we do not think that the principle articulated in Turner takes the matter further in this particular case, since Mr Griffiths’ submissions were largely an emphasis on assertions of fact that emerged from the affirmations.
Credibility or guilt
406. It remains only for us to consider whether the cross-examination was indeed cross-examination as to credit, or as to guilt.
407. We state first that, in our opinion, none of the assertions of fact put forward by the appellant at the bail proceedings in respect of which cross-examination was conducted was an assertion “as to the alleged offence.”
408. Assertions were made at the bail hearing “as to the alleged offence.” These were the assertions in the affirmation of Mr Clarke that the appellant had been subjected to violence and degrading sexual practices; and aspects of some of the medical reports exhibited went in support of the same assertions. These assertions were repeated by Mr Griffiths in his submissions by reference to Mr Clarke’s affirmations and medical reports, in his submission that categorized as “rubbish” the allegations that drugs found in the deceased’s body had had a significant effect upon the deceased, and in his contention that there was “a very flimsy foundation” upon which to suggest that the appellant had engaged upon an extra-marital affair. But the assertions that there was no history of any psychiatric disease, that there was no history of suicide attempts, that she was in November 2003 as in November 2004 someone who was in a stable condition, a person who was perfectly normal, were, in our judgment, not representations as to the alleged offence. They were representations of fact that went solely to the issue whether there was something in the appellant’s general and medical history that might render it unsafe to release her.
409. Incriminating evidence is, we suggest, evidence that helps in establishing the commission of the offence by the defendant charged with it. It was said in Johnstone v Law Society of British Columbia (1987) 40 DLR (4th) 550 at p 564 – 565 that:
“Merely because a witness gives certain testimony in a proceeding and later gives what may be conceived to be contradictory testimony when testifying as a witness at his own trial does not necessarily mean that the evidence is incriminating. … Merely because a trier of the fact, whether it be a jury or a judge sitting alone, disbelieves the testimony of an accused which was essentially exculpatory in nature would not incriminate him within the accepted meaning of that word, or any of its connotations. On the other hand, if the sole purpose of the cross examination on what is alleged to be a prior inconsistent statement of the accused is to incriminate him (or her), it contravenes s. 13 of the Charter.”
410. It is important to note that none of the evidence, none of the assertions of fact or of opinion, advanced at the bail hearing on behalf of the appellant was incriminating. This was not a case like Brophy , where in earlier proceedings the defendant had admitted membership of a proscribed organisation, the very matter with which he was charged in the second proceedings; where in the second proceedings the prosecution sought to use an admission in the first of presence at the scene, as in Wong Kam-ming ; or where, as in Darwish , there had in the earlier proceedings been an admission of the use of a passport in another’s name, again the very subject matter of the charge. The entire tenor of the matters put on the appellant’s behalf at the bail proceedings was exculpatory.
411. The question then becomes whether the purpose of the cross-examination as to contradictory evidence was to incriminate or was directed to credit. For the purpose of incriminating the appellant in the offence charged by the indictment, it was incumbent upon the prosecution to prove that the appellant killed the deceased, that she had no lawful justification for so doing (in this case, that she was not acting in self-defence), and that the assault by her upon him that resulted in his death was carried out with an intent to kill or to cause serious bodily harm.
412. We fail to see that any of the cross-examination as to the contradictions that were demonstrated between assertions on her behalf at the bail hearing, on the one hand, and, on the other, her testimony at trial and the assertions of fact underpinning Dr Wong’s report, went to establish any one of those elements. They were directed at undermining the factual basis of the anticipated defence of diminished responsibility. That did not go to incriminate, for the burden of establishing the defence was upon her, and arose only once the prosecution had established against her all the elements of the offence of murder.
413. Insofar as the cross-examination was directed to contradict the appellant’s testimony at trial that she had twice attempted suicide, this in our judgment went purely to credit: it was her explanation, raised for the first time in the course of her evidence in-chief, that the reason she had conducted an internet search in August 2003 to ascertain the effect of drugs that had been prescribed for her was because she contemplated suicide, as she had in the past. We are of the view that unless that lie – if that were the jury’s conclusion – was used by the jury in support of the prosecution case, the cross-examination went to credit rather than to incrimination.
414. We recognize that it is open to a jury to conclude on the basis of contradictory statements that a defendant has deliberately lied on a material matter, and that that lie can go to support the prosecution case. That is the effect of the standard direction that is regularly given. What a jury is often told is that the mere fact that a defendant tells a lie is not in itself evidence of guilt, but that if they are sure that there is no innocent explanation for the lie, the lie may be regarded as evidence which supports the prosecution case. No direction to the latter effect was given in this case.
415. We note as well the manner in which the matter was put by counsel for the prosecution in his closing submissions to the jury. He said:
“If I can turn now to aspects of the defence case which have been presented in evidence before you, members of the jury. In this trial, the accused has given evidence. A central issue therefore in this case is Nancy Kissel’s credibility – whether you accept her evidence or you reject her evidence. In the prosecution submission, Nancy’s evidence is not worthy of belief. Her version of events before her arrest differs dramatically from her account in the witness box before you ….”
Having outlined a number of matters which illustrated these differences, he dealt next with the contradictory evidence arising from representations made at her application for bail:
“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 claims of loss of memory before you, members of the jury are equally untrue.”
416. In our judgment, the cross-examination about the statements made on the appellant’s behalf at the bail hearing was permissible.
Miscellany
417. There were complaints about the use to which prosecuting counsel put Dr Yuen’s reports and correspondence. The original sparse presentation of these complaints was substantially expanded by counsel for the appellant in a lengthy written submission dated 21 April 2008, well into the hearing of the appeal.
418. Dr Yuen’s reports and correspondence emerged in three phases: first, his report in November 2004, then the letter dated 13 May 2005 to the Department of Justice and, last, his report dated 24 May 2005 to the court.
419. The complaints were directed to the fact that Dr Yuen’s reports and correspondence were made exhibits when they should not have been; and that cross-examination upon them ought not to have been permitted.
420. There was no complaint in the perfected grounds of appeal or in the original written submissions about the use of Dr Yuen’s report of 3 November 2004. However, we see reference to that report in the written submissions produced during the hearing as one of six categories in respect of which allegedly improper cross-examination took place. That is odd, because there was no cross-examination about that report and the first time that it was placed before the jury was in re-examination of the appellant.
421. Insofar as it was contended that the letter dated 13 May 2005 ought not to have been introduced, the short answer is that it was first mentioned in evidence by the appellant herself. What happened was that after prosecuting counsel asked the appellant whether she consented to the preparation of a report about her by Dr Yuen, Mr King suggested in the absence of the jury (but, of course, in the appellant’s presence) that this was an unfair line of questioning. In support of his objection, he flourished the letter of 13 May, contending that because Dr Yuen had expressed himself to be professionally constrained from producing a report, the proposed questioning was unfair. The logic of that is difficult to follow, since Dr Yuen had said that he was nonetheless prepared to provide a report if the appellant consented. The judge overruled the objection and cross-examination resumed.
422. When prosecuting counsel then revived the question of consent, he did so without referring to the letter but the appellant herself raised it. She said that Dr Yuen had written a letter expressing reservations and added:
“I think when you hear that psychiatrist who has been treating me for a period of time has reservations about that, I would have to agree in not consenting in someone who has reservations for their own reasons as a professional.”
423. It is hardly surprising that the judge thought that the jury should follow her explanation by looking at the correspondence. It is to be noted that no objection was taken by defence counsel to the proposed course; no doubt because he was still of the view that the correspondence assisted his client. Time was taken for copies to be made, the correspondence was shown to the appellant and the letter of 13 May was made an exhibit, again without objection.
424. We therefore see no valid basis for this complaint.
425. The appellant asserted in cross-examination that she had spoken to Dr Yuen “in great detail” about her memory loss. Prosecuting counsel did not challenge that then but, in pursuing the question of her lack of consent, suggested that Dr Yuen would, if she were to consent to a report by him, “… be able to help establish this issue of memory loss, if what you say is correct.” She answered: “He may be able to, yes.” The memory loss issue thus far had been concentrated upon this question of consent; and when counsel put to her that the real reason she was withholding consent was that there was “absolutely no psychiatric problem with you,” she answered “Yes” and added that memory loss was not to be equated with mental disorder.
426. However, the matter was not left at that for, shortly thereafter, prosecuting counsel pointed out that as against the appellant’s assertion that she had told Dr Yuen of her memory loss, Dr Yuen had said in the 13 May letter that he knew very little about the case because the appellant had never told him anything relating to the alleged offence. Her answer was that their consultation sessions were always short and much time had been spent discussing her children. Counsel left it at that.
427. Counsel then turned to the report dated 24 May: we have already described how that came to be an exhibit. In relation to the phrase in that report “… reluctant to tell me about herself,” she was asked, not about memory loss, but whether she told the doctor about cocaine, anal sex and suicide attempts.
428. It is noteworthy that in his lengthy closing address, prosecuting counsel made no reference whatsoever to the May report and correspondence in support of his assertion that the appellant’s memory loss was fake. Nor, in this context, was it addressed by defence counsel in his speech.
429. There is, in our judgment, no valid basis for the contention that the judge ought to have precluded prosecuting counsel from cross-examining the appellant about her lack of consent to the preparation of a report by Dr Yuen. The argument was that she was exercising a right of silence and, that being so, no further questions could properly be asked. We do not agree. The prosecutor could have required Dr Yuen to testify but, given the fact that he was the only psychiatrist to have seen her from the time of her admission to the psychiatric centre until January 2005, her insistent refusal to provide consent was a matter which, in our opinion, the prosecutor was entitled to explore.
430. Such cross-examination as contrasted the appellant’s assertion that she had discussed memory loss with Dr Yuen with the contents of the letter of 13 May was very brief and the answer not pursued, either in that cross-examination or in counsel’s speech. In any event, the letter as a whole had been introduced by the appellant.
431. It is difficult to see why Dr Yuen’s report of 24 May was made an exhibit; but if that step was an irregularity it was not material. That is because it added nothing to the letter of 13 May and no objection was taken to its introduction.
432. Insofar as it was suggested that it was not permissible to put to the appellant in cross-examination questions about the opinions of the psychiatrists, the fact is that their opinions inevitably followed from the matters revealed to them by the appellant. The overwhelming thrust of the cross-examination in this particular regard was directed at what the appellant had or had not told them. The psychiatric categorisation of her mental health was in context a matter of much less significance.
433. There was also a suggestion, at the foot of ground 6(a) that: “…the Learned Trial Judge failed to direct the jury in relation to the use that could be made of…” the psychiatric reports upon which the appellant had been cross-examined. We do not regard the complaint as valid.
434. Insofar as this suggestion related to the report of Dr Wong, cross-examination in respect of it was directed to the contrast between what the appellant had told Dr Wong and what had been said at the bail proceedings. There was no suggestion by her that Dr Wong had wrongly recorded, in any particular, what she had said to him. In the event, she accepted that there been nothing mentally wrong with her, save for memory loss, at any material time. Dr Wong did not give evidence and his report was not in the possession of the jury. It is difficult, in the circumstances, to know what it is that the judge ought to have said to the jury about the contents of that report which might have assisted the applicant and was not said.
435. In relation to the report dated 24 May 2005 prepared Dr Yuen, much of what we have just traversed explains why we see no substance in this complaint. The introduction of his earlier letter was, in the manner we have described, triggered by the appellant herself and the report not only added nothing of significance but was of more assistance to the appellant than the letter in that it was noticeably more open to the suggestion that she indeed had discussed matters with him. It is not surprising, therefore, that the earlier suggested conflict between her testimony and what seemed at first to emerge from Dr Yuen’s letter was not pressed by prosecuting counsel either in further cross-examination or in his address to the jury. We think that, in the circumstances, it would have been contrary to the appellant’s interests for the judge to have invited the attention of the jury to it.
436. It was said, finally, that the judge failed to direct the jury about the approach to the submissions made on the appellant’s behalf at the bail proceedings and to direct them that it was for them to determine whether the assertions of fact advanced by counsel had been advanced with her authority.
437. We do not agree. She accepted as much during cross-examination and she regularly insisted that what had been said on her behalf at that hearing had been true. The judge gave an adequate direction to the jury about their approach to inconsistencies generally and to lies suggested to have been told by the appellant. Whilst the particular contradictions were mentioned in a mere passing reference in the summing-up, we note two facts: first, that the summing- up necessarily was directed towards many other stark contradictions between the appellant’s testimony and what she had or had not told others, so that emphasis on these further contradictions would not have enured to her benefit but, secondly, and more importantly we think, the bail contradictions were largely drawn out in anticipation of the defence of diminished responsibility. That defence was not in the event run. For the judge then to have reminded the jury of the contradictions between what she had said at the bail hearing and what she had told Dr Wong would have served to highlight the fact that Dr Wong was never called on her behalf, an emphasis that would have been to her disadvantage.
438. For the reasons that we have provided, these grounds fail.
Ground 7: Professor Drummer’s report
439. Ground 7 read:
“The judge erred in removing from the trial bundle a report made by a Defence expert witness, Professor Olaf Drummer…which had been put before the jury at the request of the learned Trial Judge and with the agreement of the prosecution and was received by prosecution witnesses Dr Cheng Kok-choi… and Professor Yeung Hok-keung…, which was extensively referred to and commented on during both the evidence in chief and cross examination of these two witnesses… Moreover the learned Trial Judge failed to direct the jury what use they could make of those passages of the Drummer report which the above witnesses had attested were true and correct.”
440. This had changed by the time of written submissions to the proposition that the report had been withdrawn “…on the basis that the answers of Dr Cheng and Professor Yeung in [commenting upon] the report were the evidence…”.
441. We are able to deal with this ground shortly: it was only faintly argued on appeal, understandably so for it has no merit.
442. This was another instance where the appellant’s representatives had unequivocally indicated to the court and to the prosecution that a witness, important, they said, to the appellant’s case, would be called to testify in order to controvert evidence from experts called by the prosecution. It was another instance, too, where the witness was not called.
443. In anticipation of Professor Drummer’s evidence, a copy of his full report had been provided to prosecution witnesses, a Government laboratory toxicologist, Dr Cheng Kok Choi, and a pharmacologist, Professor Yeung: in turn, they had prepared reports commenting on that which had been given to them. At trial, prosecuting counsel showed Professor Drummer’s report to them and also asked them to amplify their reports. In order to facilitate the jury’s comprehension of the evidence of those witnesses, and their observations on Professor Drummer’s promised testimony, an edited version of Professor Drummer’s report was provided to the jury.
444. The submission that the report was put before the jury at the “request” of the judge is at variance with what occurred. The record shows the following exchanges:
“Court: Before you go any further, Mr Chapman, the witness is now going to deal with a report from a defence expert and the jury’s supposed to follow this without having the report?
Mr Chapman: I’m happy to provide a copy of the relevant paragraphs, my Lord.
Court: Mr King?
Mr King: It’s rather stealing my thunder, my Lord.
Court: It may have that effect, Mr King, but the jury have to try and follow this and unless they know what it is that the witness is addressing, how are they supposed to try and do that?
Mr King: Well, indeed, and we must try and help that -- my Lord, I’m just going to have to ask, I’m sorry, for five minutes to consult with those instructing me in relation to it.
…
Court: If we were to proceed in that way, it would be certain paragraphs, would it, Mr Chapman?
Mr Chapman: My Lord, yes. It would be paragraphs 14 to the signature page, 41, effectively.
Mr King: I’m grateful for that indication.
Court: Yes. Very well. Members of the jury, let’s see if we can’t provide you with something that will make the evidence more meaningful for you. We’ll take an adjournment whilst that’s being discussed. So adjourn until, I hope, five or 10 minutes. We’ll see how long it takes.
…
Mr King: My Lord, I’m much obliged. We have no objection to that -- those passages being put before the jury to assist them in following the matter.”
445. It also has to be said that both Dr Cheng and Professor Yeung substantially agreed with the contents of the report: where they were unable to agree there were few outright rejections of Professor Drummer’s views but, rather, either a qualified comment or the observation that the witness was not qualified to express an opinion on what appeared in Professor Drummer’s report.
446. When it eventuated that Professor Drummer would not be called to testify, prosecuting counsel requested that the report be withdrawn from the jury. The judge acceded to that request. In our view, he was right to do so. Without Professor Drummer’s testimony there was no basis, absent express agreement, upon which his report could properly be before the jury irrespective of the fact that it had been suggested that it formed an aide memoire .
447. When Mr Chapman made his request, just before Mr King closed the defence case, that the abridged report be removed from the jury the following exchange occurred:
“Mr Chapman: … The statement of Professor Drummer is one such matter that springs immediately to mind.
Court: It’s not an exhibit, is it?
Mr Chapman: I believe it’s been placed in trial bundle 5, at TB--1712.
Court: Yes. It’s been given a prosecution number.
Mr Chapman: It’s 186, I believe.
Court: P186. That’s just part of the report.
Mr Chapman: My Lord, yes.
Court: And what is it that you apply in respect of that?
Mr Chapman: Well, my Lord, it’s simply it’s not been the subject of any proof whatsoever.
Court: What’s your application then?
Mr Chapman: That it be removed.
Court: Mr King, what’s your response to that?
Mr King: My recollection was it was the portion that was placed in was placed before the witness in order to allow the witness’s evidence to be more readily understood by the jury. I don’t believe it was my application to do it. I can’t recall, without looking at the transcript, which I don’t have with me, whether it was my learned friend or whether your Lordship suggested it, but it came about as a result of there being discussion.
Your Lordship I do recall mentioning that it was there as an aide-memoire and a great deal of examination of two witnesses, Cheng Kok-choi and Professor Yeung, related to the Drummer report and actual paragraphs of it, and sometimes those paragraphs were read and sometimes they were simply just referred to in evidence: “Paragraph 28 of Professor Drummer’s report, what do you say about that?”.
And what, in my submission, is that when the jury come to recall those parts of the evidence, that without having the report as an aide-memoire, the task becomes very difficult.
Court: But it has no evidential status now because it’s not been proved. It’s not there for evidence of the truth of what’s contained in it.
Mr King: No. The evidence that arises is the evidence that arose in evidence-in-chief or in cross-examination.
Court: Yes.
Mr King: From the witnesses as to Professor Drummer’s report. But a number of the witnesses, in my recollection, in relation to the report simply were asked about certain paragraphs of Professor Drummer’s report “and you were in agreement with that,” “Yes, I am”.
Court: Yes. Well, it’s their oral testimony that is the evidence, not the report.
Mr King: Yes, but when they say, “Yes, I am,” they had in front of them for the purposes of their cross-examination or examination-in-chief, they had Professor Drummer’s report there and they were looking at it. So in my submission, it should remain in the bundle for the purposes for which it was put before the jury originally. It was an abridged report put there as a document that made the jury’s task easier in relation to following the evidence of the prosecution witnesses.
Court: Mr Chapman.
Mr Chapman: Well, my Lord, it’s the oral evidence that really matters at the end of the day. No reliance can be placed on the report if it’s unsupported by the expert himself.
Court: Yes. And following from that, what is it that you wish the court to do?
Mr Chapman: As I originally postulated, my Lord, I submit that it should come out.
That exchange continued later:
Mr King: … In relation to Professor Drummer’s report, the witnesses have commented upon paragraphs and they have adopted those paragraphs on occasions, said they’re correct, and in those circumstances, in my submission, those parts of the report become evidence. If that report is to come out, then, in my submission, similar consideration must be given to withdrawing the statements of Mr Cheng and Professor Yeung in relation to the reports that they placed in.
Court: Which exhibit numbers are they?
Mr King: If your Lordship goes to P187, TB-1718.
Court: Yes.
Mr King: This is the report of Mr Cheng, as edited, and the paragraphs were read by the witness, and what you’ll see is paragraph 3 starts: “As requested by the prosecution counsel, my comments to the pharmacologist’s report by Professor Olaf Drummer is as follows” and then he proceeds to, in relation to each of the paragraphs, give his comments. And again this report, in a sense, becomes meaningless without...
Court: But he gave evidence under oath or affirmation in court and was cross-examined.
Mr King: Yes, indeed.
Court: That’s not the category that Professor Drummer is in.
Mr King: No, but if he gave evidence, but what we have here is in relation to his -- the written document that went to the jury, is it makes reference to a number of paragraphs of Professor Drummer’s report, and he says whether he agrees or disagrees, or whether he has any comment or whatever. And if Professor Drummer’s report is to be taken out, then this document here assumes a -- first of all, it’s difficult to understand because they won’t be able to reference Professor Drummer’s report, and it then assumes an importance, a status above the oral evidence that was given.
So if the evidence is going to be dealt with in that way, then these pharmacology reports come out and we deal with the oral evidence as given by the witnesses.
Court: Mr Chapman.
Mr Chapman: Well, my Lord, I’d simply endorse your Lordship's observation that they have given oral evidence, but I do take my learned friend’s point that there is perhaps a problem if what they’re addressing is not there as well.
Court: Well, obviously there is a problem if one looks at TB-1720 when there’s a series of references to paragraph numbers with things like “no comment”. So that’s meaningless. But the descriptions that are given at paragraph 17, that has its own weight and was addressed orally.
Mr Chapman: My Lord, yes.
Court: Anything else you wish to say?
Mr Chapman: The jury could simply be directed to only consider the material that is explained.
Court: Well, this is my ruling. I rule that because they have not been proved, Exhibits D49 and P186, part of the proposed report of Professor Drummer, be removed from the jury’s bundle of exhibits. Now, given those rulings, Mr King, is it still the position that the defence wish to close their case and their case is closed?
Mr King: Yes, it is.”
448. It is clear, therefore, that even if, arguably, it may have been helpful to the jury for those portions of Professor Drummer’s report to have been left before them, it was the appellant’s decision to close her case in the full knowledge that the abridged report would not be with the jury, and still not to call Professor Drummer to testify.
449. The reality is that an abridged version of Professor Drummer’s report was made available to the jury purely to enable them more easily to comprehend the evidence that the prosecution witnesses would give: by withdrawing it from the jury, at the request of the prosecutor, such disadvantage that there may have been would have affected the prosecution, not the defence.
450. The judge clearly explained to the jury that the reason why the abridged version of Professor Drummer’s report was being taken back was because the appellant had decided not to call him as a witness.
451. We are satisfied that by reference to the oral evidence which they had heard, during the course of which Dr Cheung and Professor Yeung had also made reference to their written comments on Professor Drummer’s report, the jury was fully alive to that aspect of the evidence. The judge accurately summarised their oral evidence for the benefit of the jury without making reference to Professor Drummer’s report.
Ground 8: Hearsay
452. Ground 8 is formulated thus:
“The learned trial Judge erred in allowing into evidence recitations of conversations between the deceased and various witnesses on the basis that this evidence was relevant to the deceased’s state of mind as to the state of his marriage when such evidence was irrelevant to the issues to be decided by the jury in the trial. Alternatively, the judge failed to put to the jury non-hearsay evidence that showed the deceased's state of mind in relation to the marriage was different to what the prosecution were endeavouring to portray. Further the judge misdirected the jury in relation to the use they could make of the hearsay assertions of the deceased.”
453. With the exception of the evidence about the deceased’s expressed fear that he was being poisoned, it has not been easy to identify the precise evidence under this head to which Mr McCoy took objection. The grounds of appeal did not particularize a single item. The original written argument devoted to this ground covered one and a quarter pages of double-spaced print with only the very broadest of references to the prosecution witnesses Ms O’Shea and Mr Noh but, again, without itemising the reported comments to which objection was taken. Only two authorities were cited in the written argument but many more, which required particular study, emerged spasmodically as the oral argument proceeded. Such an approach was particularly unhelpful. We have much the same criticism in relation to the manner in which grounds 5 and 6 were presented, where it was left for the court to uncover key authorities. Out of consideration for the families of the deceased and of the appellant, who had travelled considerable distances for a hearing that had long ago been set down, we decided to proceed with the hearing rather than adjourn in the hope of obtaining the quality of prior written presentation that is required for any appeal, let alone one of this complexity. The court, in the circumstances, has had to conduct considerable research and analysis of its own.
454. At an early stage of his summing up, the judge said to the jury:
“… may I turn to a direction that I have given you from time to time during the course of the trial in respect of particular witnesses. The evidence adduced in the trial of assertions of fact made by Robert Kissel, orally and in writing – that is, spoken or e-mails is what we have got – to witnesses called in the trial is not admissible in respect of the truth of the assertions made. They are admissible only as evidence for you to consider in respect of Robert Kissel’s belief of the state of his marriage. It is relevant in the context of the steps that Robert Kissel took in respect of the marriage in the months leading up to his death.
For example, Robert Kissel’s assertion to Bryna O’Shea, David Noh, Robin Egerton, Andrew Kissel and Frank Shea that the defendant was having an extramarital affair, and his assertions to Bryna O’Shea, David Noh, Robin Egerton and Frank Shea that following his return to Hong Kong in late August 2003, the defendant was continuing her liaison with her lover by telephone, those assertions are not evidence of the truth but only evidence in respect of his belief of the state of his marriage.
Of course, elsewhere in the evidence in respect of those matters, there is available for your consideration evidence that you may or may not accept as to truth. For example, the defendant’s admission in testimony before you that she had sexual intercourse with Michael del Priore on several occasions in Vermont in June and July 2003 and that she maintained frequent telephone contact with him in late August to early November 2003. Also there are the telephone records of the second mobile telephone as it has been called, the one registered at the Parent Faculty Office of Hong Kong International School.
Another example: Robert Kissel’s assertions to Bryna O’Shea and David Noh that he had discovered that the defendant had accessed “dark web sites” involving drugs and death is not evidence of the truth of that assertion.
Of course, elsewhere in the evidence in respect of the use of the Sony laptop computer spoken to by the computer expert, the constable, and admitted by the defendant in her testimony, there is evidence of the defendant typing in Internet Explorer on the 20 August 2003 what I have quoted to you already, “sleeping pills overdose on sleeping pills, medications causing heart attacks, drug overdose” and of her subsequent access of internet web sites. Of course, when you look at that evidence, you will have regard to the evidence that the defendant has given you of why it was that she was looking at the website, or making that search.
Robert Kissel’s assertion to David Noh that a list of divorce lawyers had been mailed to the family e-mail address rather than to his Merrill Lynch address, together with his assertion, after David Noh had stepped out of Robert Kissel’s office at Merrill Lynch on Thursday 30 October 2003, that he, Robert Kissel, had had a telephone conversation with his wife and they were to discuss the issue of divorce on Sunday 2 November 2003, is not admissible in respect of the truth of the facts asserted. It is not evidence of the fact of the receipt of the e-mail at the Kissel home e-mail address, nor that Robert Kissel had had a telephone conversation with the defendant in which it was agreed that divorce would be discussed on that Sunday, 2 November 2003. It is not evidence of the truth of any of those assertions. It is evidence only evidence of Robert Kissel’s state of mind in respect of the marriage, and on this occasion, of his stated intention.
Finally, Robert Kissel’s assertion to Frank Shea after his return to Hong Kong in late August 2003, assertions made in e-mails 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 whisky in Hong Kong.”
455. That summary encapsulates the nature of the testimony to which Mr McCoy took exception, relating as it does samples of the evidence.
456. The thrust of Mr McCoy’s submissions was that evidence of the state of mind of the deceased as to the state of his marriage was, in this case, irrelevant to the issue whether the appellant had murdered him. The fact that the deceased may have feared the appellant did not tend to prove that she murdered him. The evidence admitted under this rubric was not evidence, he said, that was relevant as part of the res gestae , nor was any of it admissible as a dying declaration. He took particular objection to evidence that the deceased feared that he was being poisoned by the appellant with an intent to kill him. That evidence was objectionable, he said, because it could only have been adduced to prove that the deceased’s fear was well founded, presented therefore for the suggested truth underlying the assertion: that was not only inadmissible hearsay, but was also testimony the prejudice of which greatly outweighed any possible probative value. There was, he contended, no evidence that the deceased’s suspicions led him to act in a particular way and no evidence that the appellant was aware of those suspicions. In that the appellant herself admitted that she had administered drugs to his drink months before the killing, that was qualified by the motive she provided, namely, to calm him down; whereas, by contrast, his assertion to third parties was that she was thereby seeking to kill him.
457. The fundamental rules of evidence relevant to the issue raised in this ground are synthesized in the judgment of McHugh NPJ in Oei Hengky Wiryo v HKSAR (2007) 10 HKCFAR 98. At § 35, his Lordship commenced his analysis of the law with a “working definition”, as he described it, of the hearsay rule which is that:
“An oral or written assertion, express or implied, other than one made by a person in giving oral evidence in court proceedings is inadmissible as evidence of any fact or opinions so asserted.”
458. The ambit of that rule is often misunderstood. It applies only when the assertion of fact or opinion is adduced in order to establish its truth. It does not apply where, instead, evidence of the assertion is put forward to establish the fact that the assertion has been made, so long as the fact that it has been made is relevant to a fact in issue or a fact relevant to a fact in issue.
459. This we see highlighted in the judgment of McHugh in Oei from § 39:
“ To determine whether the hearsay rule has been breached, it is necessary to determine the purpose for which evidence of an out-of-court statement is tendered. An out-of-court statement, made in the absence of a party, is not necessarily inadmissible. As long as its contents are not relied on to prove a fact recited or asserted, it will be admissible if it tends to prove a fact in issue or a fact relevant to a fact in issue. As Mr Justice Ferguson explained in “Hearsay Evidence” (1927) 1 ALJ 195 at p. 196 in a passage cited with approval by Gleeson CJ and myself in Kamleh v The Queen (2005) 79 ALJR 541 at 544:
‘The hearsay rule does not forbid the proof of what somebody said out of Court. What it does forbid is the proof of a fact by telling what somebody said about that fact out of Court, a very different matter. Whether the evidence in any particular instance is admissible or not depends upon the question what fact it tends to prove.’
40. In Subramaniam v Public Prosecutor [1956] 1 WLR 965 at p. 970, in a passage that has come to be regarded as a classic statement of the hearsay rule, the Judicial Committee of the Privy Council said:
‘Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.’
41. … The reported cases show many examples of out-of-court statements, made outside the presence of a party, which do not infringe the hearsay rule. In most cases, they are statements that were tendered to prove or disprove the state of mind, intention, knowledge or conduct of a person or to prove a transaction where proof of that state of mind, intention, knowledge, conduct or transaction was either a fact in issue or relevant to a fact in issue. Often the fact inferred from the statement is used to infer another fact in issue or relevant to a fact in issue. In all these cases, the words, figures or utterances in the out-of-court statement may be used as evidence, alone or in conjunction with other evidence, to prove another fact or facts as long as the contents of the statement are not assumed to be true in proving the fact or facts to be proved. In some cases, however, the coincidence between “other evidence” and the words, figures or utterances may be so exact that an inference can reasonably be drawn that the words, figures or utterances are true. In this latter class of case, the contents of the statement, but not its truth, are compared and combined with the facts established by other evidence to reach the conclusion that the only reasonable explanation of the statement and the other facts is that the contents of the statement are indeed true, if factual matters, and valid, if matters of opinion.
42. Thus, evidence as to what is said by a party or person out of court will be admissible to prove that person’s state of mind where it is a relevant issue. …
43. Evidence as to what is said to a party or person out of court will also be admissible to prove that person’s state of mind where it is a relevant issue. A classic example is Subramaniam … where the Judicial Committee held … that the hearsay rule would not be infringed by evidence of threats made by terrorists to the accused. The evidence had been tendered to prove that the accused had acted under duress in having illegal possession of ammunition.
44. Evidence that a person had said that he or she was intending to meet somebody or to do something may be evidence of conduct that is relevant to an issue and therefore admissible because a statement of intention is admissible to prove that the person did the intended act. …
…
46. Evidence of an out-of-court statement by one person may also be admissible because it gives rise to a factual inference that proves or disproves the conduct of another person. …
…
53. The purpose of this extended discussion of hearsay cases is to show that, in a variety of contexts, out-of-court statements may be admissible in evidence, whether or not they were made in the presence of a party affected by its admission, and to show that inferences may properly be drawn from those statements both to prove a fact in issue or to provide a factual foundation for inferring a fact in issue. In some cases, the out-of-court statement may be used alone or in conjunction with other facts or statements to disprove a fact.”
460. It is more appropriate to treat statements by a declarant as to his state of mind as original evidence than as an exception to the hearsay rule:
“It is well established law that a person’s state of mind may be proved by contemporaneous statements made by that person. Such statements are not hearsay because they are not adduced for the purpose of proving the truth of the statements. They are original circumstantial evidence tending to establish the state of mind. Their evidentiary value is derived from experience of human behaviour which indicates that people tend to express their intentions or their state of mind. For that reason what a person says is some evidence of what he is thinking. It is circumstantial evidence which may form a basis for an inference as to his intention or other state of mind.”
per King CJ in The Queen v Hendrie [1985] SASR 581 at 585.
461. The same point is made by Mason CJ in Walton v The Queen [1987-1988] 166 CLR 283 at 288-289:
“… evidence of a relevant out-of-court statement is admissible evidence of the maker’s knowledge or state of mind when he made the statement in a case where such knowledge or state of mind is a fact in issue or a fact relevant to a fact in issue: Reg v Blastland [[1986] AC 41]. Similarly, a person’s statements or declarations are an accepted means of proving his intentions in circumstances where it is material to prove what those intentions were. As Mellish L.J. remarked in Sugden v Lord St. Leonards [(1876) 1 P.D. 154 at p 251]:
‘[W]herever it is material to prove the state of a person’s mind, or what was passing in it, and what were his intentions, there you may prove what he said… .’
The point is that the making of the statement is itself evidence of the author’s intentions at the time the statement was made. Evidence of the making of the statement may be given by the author himself or, in the case of oral statement, by any person who heard it made.
Statements by a person about his intentions or state of mind are often admitted into evidence, whether described as an exception to the hearsay rule or as original evidence. … But the better view is that evidence of such statements is not merely hearsay. Even when the testimony proffered is not that of the maker of the statement, but that of a person who heard the author make the statement, it is original evidence. It is because the making of the statement has independent evidentiary value in proving the author’s intentions, those intentions being a fact in issue or a fact relevant to a fact in issue, that the witness’s testimony does not infringe the hearsay rule. It is original evidence rather than an exception to the hearsay rule. … It would be otherwise if a contemporaneous statement were not admissible evidence of the author’s intentions. Then testimony by another that he heard the author make the statement would be hearsay because it would be tendered merely for the purpose of proving the truth of what the statement asserted. Since the statement is admissible as original evidence, there is no requirement that the evidence also satisfy criteria for admissibility under the res gestae rule.”
462. Some reliance was placed by the respondent in the court below and before us on the suggested admissibility of ‘relationship’ or ‘background’ evidence, an avenue for admissibility for which there is a significant amount of recent authority but in respect of which it has been submitted “that such evidence is often highly prejudicial and judges should be sceptical about claims that such evidence is ‘necessary to give the jury the full picture’”: Phipson 16th ed., § 16-12. It must not be assumed that whenever there is a killing of one spouse by another, relationship or background evidence, thereby opening the door to receipt in evidence not only of statements by an accused but also of statements by the deceased to third parties, automatically becomes receivable. It is always a question of relevance to an issue in the case. That is a point that we see made frequently in the authorities, especially those emanating from Australia and comprehensively reviewed in R v Clark (2001) 123 A Crim 506 to which we shall shortly turn.
463. The case primarily proffered in support of the “continual background” argument is R v Phillips [2003] 2 Cr App R 528. Phillips was a case in which the appellant’s wife had been killed by drowning in her bath. It was the prosecution case that he had murdered her because the marriage had broken down and he feared that she would leave him. His case, however, was that he was a caring husband in a loving marriage. One of the purposes of introducing evidence of remarks made by the wife about the appellant and the marriage, which showed the marriage to be unhappy, was to rebut that assertion. Dyson LJ, in supporting the trial judge’s decision to admit that, as well as other evidence of its kind, said, at 532:
“It seems to us that the basis on which the judge considered the evidence to be admissible was clear enough. He said … that it was capable of amounting to relevant and probative evidence. … He referred to “a continuing history of events” which reflects the language of R v Pettman (unreported, May 2, 1985) where this Court said:
‘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.’
But it is also clear that the judge had well in mind the Crown’s suggestion that the appellant had a motive or perhaps motives for killing his wife: the judge understood that it was in the main to this issue that the disputed evidence related. He also took into account the passage in the appellant’s interview to which we have already referred about the marriage being a happy one. The judge plainly thought that the evidence was admissible to rebut the appellant’s claim that the marriage was a happy one.”
464. Then, later, at 535 to 536:
“We do not propose to conduct an exhaustive analysis of all the authorities to which we were referred. To a great extent, they turn on their own facts. 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 argument in the present case has been directed to the first rather than the second of these questions.
We do not consider it helpful to treat evidence that the appellant had a motive for killing his wife as belonging to a separate compartment from evidence in rebuttal of his claim that he had a happy marriage. 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. So too was the link between the evidence adduced to rebut the claim and to show that he had an admittedly irrational motive for killing her. …
In this case, we consider that the evidence that the marriage was not happy was plainly relevant. It was relevant to rebut the appellant’s claim that the marriage was happy and that he, therefore, had no motive for killing his wife. …
…
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. They would have known that the appellant was used to sleep in a bed by himself in his office, and use to communicate with his wife by sending her notes. They would certainly have wanted, and, in our judgment, would have been entitled to know a great deal more about this marriage.”
465. R v Frawley (1993) 69 A Crim R 208 was a murder case. The appellant lived in a de facto relationship with the deceased and evidence was admitted tending to show a troubled relationship between them. There was testimony of a neighbour of hearing arguments and of the appellant saying that he was sick and tired of the deceased and had decided to leave her. In this context, Gleeson CJ noted, at 218, that in R v Wilson (1970) 123 CLR 334:
“Barwick CJ observed (at 337) that the fundamental rule regarding the admissibility of evidence is that it be relevant. He said that it was quite apparent that the nature of the current relationship between the appellant and his wife was relevant to the question to be decided by the jury. Evidence of a close and affectionate relationship could have been accepted by the jury in favour of the accused, and evidence that there had developed mutual enmity could be used to support the conclusion that the accused had deliberately killed his wife. The evidence of the fact of the quarrels was relevant. What was said in the course of the quarrels was not evidence of the truth of what was asserted but was simply part of the quarrel and was admissible on that basis. His Honour cited a passage from a judgment of Kennedy J in Bond [1906] 2 KB 389 at 401 who said:
‘The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime of which the accused is on his trial.’”
466. Gleeson CJ continued at 219-220, still in reference to Wilson :
“As a matter of logic, a question arises as to why the fact that the wife’s accusations against her husband were made in his presence should be essential to the admissibility of such evidence, bearing in mind that the evidence was not led to prove the truth of the accusations. Menzies J, with whom McTiernan and Walsh JJ agreed, said (at 344):
‘Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was the relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them that the wife, in the course of a quarrel, should charge her husband with the desire to kill her.’
In terms of the relevance of the evidence, it might be asked what the words “in the course of a quarrel” add to the point being made in the last sentence of that passage. Yet, as was noted earlier, Barwick CJ treated that as the key to the admissibility of the evidence. Why might it not also speak eloquently of a bitter relationship between husband and wife that the wife should tell a third party, in the absence of her husband, that her husband wanted to kill her?
…
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 the 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.” (Emphasis added)
467. What troubled the court in Frawley was evidence given by the deceased’s daughter of conversations in which the deceased had made allegations of misconduct and violence on the part of the appellant and of her fear of him and also the production of a diary note in the deceased’s hand listing reasons for ending her relationship with the appellant. Gleeson CJ stated the purpose for which out-of-court statements, not only as to fact but also of opinion, knowledge, or belief, were admissible, namely, to show, where it was relevant to do so, that the state of mind, opinion or belief or knowledge was held, but he said, at 222 – 233:
“In my view the preferable approach in a case such as the present is not to consider the matter in terms of generality as to “relationship” but, rather, to consider whether the evidence in question is direct evidence of any fact relevant to a fact in issue.
…
… the note was direct evidence of the fact that the deceased had made a list of reasons for terminating her relationship with the appellant, from which it might be inferred that she was contemplating such a termination. There is, however, no evidence that she ever told that to the appellant. That fact, therefore, does not tend to prove that he intended to kill the deceased, or had a motive for doing so, or even (although this was not seriously in issue) that it was the appellant who killed the deceased.
Secondly, the note was direct evidence of the deceased’s state of mind in various respects. Her annoyance at the appellant’s treatment of the dog was an irrelevant state of mind. What, however, of her fear of the deceased and her apprehension of violence? The fact that the deceased feared the appellant does not tend to prove that he killed her, or that he acted towards her with a certain intent. What would tend to prove that would be evidence that the fear was well founded on the basis of past happenings, but that is the very matter which the document cannot be used to prove.
Thirdly, the document was direct evidence of the fact that the deceased, in a private diary note, made statements severely critical of the appellant. There is no evidence that she communicated those statements to him. I am unable to see how this fact has probative significance in relation to an issue in the case.”
468. Frawley was distinguished in Clark , above, another judgment of the Court of Criminal Appeal of New South Wales. Clark was a murder case though not against the background of a matrimonial relationship. The issue in the case which is of relevance to this case, arises from the evidence of five witnesses who testified of separate conversations taking place between each and the deceased in the days and weeks before the killing. They were of statements by the deceased that, for example, she did not like the appellant; that she was very scared of him; that he had assaulted her; and even that he, Clark, was out to kill her. At issue was the admissibility of these statements, none of which was made in the presence of the appellant. The court held that they were admissible.
469. As in the present case, counsel for the appellant in Clark relied on the fact that none of the statements of the deceased’s state of mind had been expressed to the accused and that the context and reliability of what the deceased had said could not be tested. The court referred to many authorities including, at 554, the following statement by Sir Lyman Duff CJ in Barbour [1939] 1 DLR 65 at 67:
“If you have acts seriously tending, when reasonably viewed, to establish motive for the commission of a crime, then there can be no doubt that such evidence is admissible, not merely to prove intent, but to prove the fact as well. But I think, with the greatest possible respect, it is rather important that the courts should not slip into a habit of admitting evidence which reasonably viewed cannot tend to prove motive or to explain the acts charged merely because it discloses some incident in the history of the relations of the parties.”
470. As to this Barwick CJ had said in Wilson, above, at 336, that:
“If the words “or to explain the acts charged”, which are to be found in the latter part of this quotation were inserted as they may well have been intended to be, after the word “motive” in the earlier part of the statement, I would respectfully agree with what the learned Chief Justice said: but otherwise I am unable to accept the limitation on the admissibility of the evidence which the learned Chief Justice’s words if not expanded would seem to imply. Here the question is not whether a motive or some particular intent can be found or assigned for or in connection with the killing but of choosing between the competing views in point of fact of accidental discharge of the gun and its discharge by the act of the accused.
…
… If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence , then in my opinion on general principles, because it is relevant, it is admissible. Of course if it does not have that relevance it is inadmissible. … It is not that all evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn.” (Emphasis added)
471. The court in Clark referred also, at 565, to Vollmer [1996] 1 VR 95 where it was said, at 132 that:
“… it is ordinarily relevant to the prosecution case in offences against the person such as murder, manslaughter, recklessly causing injury and false imprisonment, to establish the relationship between the accused and the victim, whether that goes to prove intent, to negative accident or to negative defences which may be raised thereafter , subject to the possible rejection of that evidence or parts thereof on the ground of prejudice.” (Emphasis added)
472. In United States v Brown 490 F.2d 758 (1974), the trial court had admitted testimony of the victim’s wife that the victim had said that he was frightened that the defendant was going to kill him. It was not a case in which the defendant asserted self-defence, suicide or accidental death. The Supreme Court emphasized, at 767, that:
“The threshold requirement of the admissibility of such hearsay statements of fear of defendant in homicide cases is some substantial degree of relevance to a material issue in the case. While there are undoubtedly a number of possible situations in which such statements may be relevant, the courts have developed three rather well-defined categories in which the need for such statements overcomes any possible prejudice. The most common of these involves defendants claim of self-defense as justification for the killing. When such a defense is asserted, a defendant’s assertion that the deceased first attacked him may be rebutted by the extrajudicial declarations of the victim that he feared the defendant, thus rendering it unlikely that the deceased was in fact the aggressor in the first instance.”
473. The court examined examples saying, at 768 that:
“Perhaps the most appealing and consistent decisions are those involving the claim of self-defense. Here the cases are largely in agreement in allowing such testimony where self-defense is an issue and excluding it where it is not. Some discussion of these decisions is helpful in understanding the proper approach in such cases.
In People v Schindler , 273 Cal. App. 2d 624… (1969), a prosecution witness was permitted to testify that the deceased had stated in a telephone conversation that “the gun was missing from the closet and she was afraid her husband was going to kill her.” The court recognized that to determine whether the evidence was properly admitted, it must examine the issues. It found that since self-defense was raised, the deceased’s fear of the defendant was relevant to the ‘likelihood of her having taken aggressive action against appellant. If June [the victim] were afraid of appellant and fearful that he might kill her, then an inference could be drawn that it was unlikely she would do anything to provoke him and unlikely that she would produce a loaded firearm at a time when appellant was angry and had just quarrelled with her. Because of the defense of self-defense June’s state of mind became relevant and the evidence became admissible on the issue… .’”.
474. One further authority is germane. It is R v Matthews (1991) 58 SASR 19. The accused said that he had had intercourse with his wife whereafter, as a result of taunting comments that she had made, he killed her. At issue on appeal was the admission of evidence at trial of statements made by the deceased to others about her fear of the appellant. Bollen J said, at 32:
“Be it original or hearsay the statements of the deceased here challenged were admissible to prove her state of mind. The evidence of those people who could give evidence of her utterances which suggested fear and a wish not to see the appellant was admissible. The evidence was not admissible to prove any assertion of fact in the utterances of the deceased. They were inadmissible “on” each charge. On each charge the fact of the state of the deceased’s mind was relevant. She was unlikely to have consented to intercourse in her state of mind. She was unlikely to receive the appellant at her home, suggest that they have intercourse, participate willingly in intercourse and when it was concluded say (as the accused suggested): “You might as well just come and take the lot and me with it.” … In other words the appellant’s case in part was that on the fatal night there was intercourse suggested by the deceased and a suggestion from her that she should return to live with the appellant, that is a reconciliation or an attempt at reconciliation. That evidence fell to be judged against the background of the state which the married life of the appellant and the deceased had reached. Evidence proving the state of mind made the evidence which the accused gave incredible. It was relevant on that score. Evidence proving the state to which the relationship of the parties had descended was relevant to the charge both of rape and murder. It negated or tended to negate the evidence of the accused which I have just mentioned. And, moreover, the history of the relationship was relevant as background against which the central allegations touching murder and rape had to be considered by the jury. The jury was entitled to have information of that background.”
475. Amongst the principles that may be drawn from these authorities as well as others already familiar to this jurisdiction are, we suggest, the following:
1) Out-of-court statements are not necessarily inadmissible. “As long as its contents are not relied on to prove a fact recited or asserted, it will be admissible if it tends to prove a fact in issue or a fact relevant to a fact in issue.”: Oei , above, at 116A.
2) Statements adduced to show a state of mind, where that is relevant to a fact in issue, are not hearsay because they are not adduced for the purpose of proving the truth of the statements. They are original circumstantial evidence.
3) The principle, admitting testimony of out-of-court statements to prove or disprove a state of mind of the declarant, includes proof of intention, knowledge, or conduct: see Oei at 116, § 41.
4) Evidence of the making of the statement may be given not only by the declarant but by any person to whom it was made.
5) Since such a statement is admissible as original evidence, it is not necessary to satisfy the criteria for admissibility under the res gestae rule.
6) It is not to be assumed that whenever there is a killing of one spouse by another, relationship or background evidence is admissible. Background evidence may become necessary to adduce where, without it, the jury would be constrained to assess key evidence in a vacuum or where such evidence would be incomprehensible, but for the contextual background. Background or relationship evidence is admissible only if it is relevant to a material question to be decided by the jury. The essential test is relevance: it is necessary to identify the issue in the case in respect of which the proposed evidence is said to be probative. If that test is passed, there remains only the question whether the court, in the exercise of its discretion, should exclude the testimony because its probative value is outweighed by the prejudice that would be occasioned by its admission.
7) It is not a condition precedent to the admissibility of such evidence that the statement made by the alleged victim has been made in the defendant’s presence although there will be cases where the declarant’s state of mind, knowledge, or belief will only be relevant if it has been communicated to the defendant.
8) Since relevance is the test, admissibility is not restricted to statements of the defendant’s state of mind, but extends to evidence of the victim’s state of mind. Similarly, that evidence is admissible to negative such defence as is raised or anticipated.
476. It was not suggested that any of the statements with which issue was taken was admissible as evidence of the truth of its content. The impermissibility of using any of the statements for that purpose was a fact frequently driven the home by the judge to the jury.
477. The stance taken by the respondent before Lunn J was that the testimony was receivable for a number of reasons. The evidence of Mr Egerton and of Mr Noh was, they said, relevant as to the deceased’s state of mind in respect of his marriage in the period immediately before the killing and, in particular, of his intention to seek a divorce, not to claim custody of the children, and to convey those facts to his wife on 2 November 2003. They submitted, in addition, that evidence from Ms O’Shea and Mr Shea was relevant to rebut the core of the appellant’s case that it was the deceased who had for long been the aggressor in the relationship, a fact relevant, so she asserted, to the culmination of that aggression on the evening of 2 November 2003. The evidence of the deceased’s reaction to a series of events in the months prior to that date countered the picture drawn of a violently vengeful man, without which evidence the jury would have been left with an entirely one-sided account of the nature of the relationship. We shall return to the question of his belief that he was being poisoned.
478. In his detailed ruling on the subject, the judge demonstrated that he had well in mind evidence of 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; a non-vindictive attitude that sat contrary to the appellant’s description of the respective attitudes of the parties to this marriage; and 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.
479. It is our opinion that the judge’s admission of this evidence, for the specific purpose for which it was received, was justified.
480. The questions that need to be asked are these:
1) Did the utterances by and written messages from the deceased afford evidence of his state of mind?
2) If so, was his state of mind, intention or belief circumstantially relevant to a fact or facts in issue in the case?
481. It was not contended that the utterances and messages did not evidence a state of mind. The issue in this appeal is relevance and, if relevant, whether more prejudicial than probative.
482. To determine relevance, we need to identify the facts in issue and facts relevant to the facts in issue.
483. The killing of the deceased by the appellant was not in issue. What was in issue were the circumstances that led to that killing.
484. On the one side was the prosecution case that this was 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.
485. On the other side was the appellant’s case, which it was incumbent upon the prosecution to disprove, namely, that she was 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. It was her case that she was so afraid of him that she was constrained periodically to administer drugs to him to protect herself; and that so unhappy was she as a result of his conduct that she twice attempted suicide. However, despite her love for the man with whom she had formed a relationship in America, and despite her husband’s behaviour over a period of years it was her case that she “decided to commit [herself] to the marriage … to the world that [she] had created for [herself] in Hong Kong with [her] family, both [her] husband and [her] children” and that she was “very much determined to make things work”. According to her comments to Dr Wong it was she, not the deceased, who had suggested marriage counselling but that he had been “reluctant to go”. Nonetheless, as a result of the final episode of abuse in November 2003 she was forced to defend herself to the extent that she did.
486. 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.
487. Whilst conscious of the fact that the burden lay upon the prosecutor to disprove the appellant’s account, we are satisfied that the challenged evidence was admissible since it was probative of facts that the jury had to determine when considering two diametrically opposing explanations of the occurrence that constituted the killing of the deceased: the challenged evidence was relevant to factual issues that they had to decide. In addition, those acting for the appellant gave notice that it was intended to run a defence of diminished responsibility, and the report of Dr Wong depended for its reliability on extensive detail provided by the appellant to him of her own and the deceased’s alleged attitude to the marriage. It was incumbent on the prosecution to rebut, if it could, the factual substratum of that report.
488. Since those acting for the appellant provided no particularized list of the evidence to which objection is taken, but merely a blanket all-embracing suggestion, it is not our intention – indeed not our function – to pick through the evidence to search for every conceivable instance of evidence of an utterance by the deceased. We shall take some examples.
Example 1
489. We start with an example which, unsurprisingly, was not chosen on behalf of the appellant. It is an example of statements made by the deceased to the appellant in mid-June 2003. The fact that it was made to the appellant does not change its status as an out-of-court statement. What makes it so relevant as an example is the distorted picture with which the jury would have been left without evidence of the deceased’s state of mind.
490. In May 2003, the appellant had been in Vermont with the children for over a month. The deceased joined them for the whole of May. In her testimony in-chief, the appellant described a horrific picture of the deceased’s callous behaviour that month. What happened, she said, was that the appellant was overly strict with the children, as evidenced at one stage by his hurting Elaine. That apart, there were frequent arguments about his drug abuse. “We had a huge argument that he brought drugs into
my house like that … and the drugs and the alcohol and all the mood swings that go with that, he wouldn’t let up on the kids.” More particularly, there was “a lot of pretty intense sexual-wise between us … the same forceful sex on me you know, him coming in and wanting what he wanted at that particular time, whether it was midnight, two o'clock in the morning, four o'clock in the morning. … Sometimes, you know, just being there in the office where he was when I would walk by and he’d grab me and … the anal sex again and oral sex for him. … he’d use his elbows on my legs … till my legs would hit the sides of the bed.” “And how many occasions during this month of May?” she was asked, to which she answered: “A lot.” She described how she became really scared about the children, not only herself, and that is when and why she decided to put Ambien in his scotch bottle.
491. This account, if correct, was part of a lengthy and increasingly serious history of the deceased’s abuse of her and was directly relevant to the defence that she raised of self-defence and the partial defence of provocation identified by the judge. Apart from the testimony of those who knew the deceased well, there was little to gainsay this story of constant drunkenness, violence, and sexual abuse. That is all that would have been before the jury had it not been for evidence of the deceased’s state of mind, his hopes and his qualms, at or about the material time. That is precisely why that evidence was relevant.
492. In this regard, we note the content of an e-mail sent by the deceased to the appellant in June 2003, a few weeks after the events which she described. What he said to her in that e-mail was that there was a need for communication between the two of them, and that:
“Last time in Vermont was extremely difficult for both of us as you said. I wanted to be with you and the kids, and had to juggle work. Certainly not the best situation, but life throws curveballs sometimes. I didn't care if you were temporarily mad at me, or if it was something else temporary. But that was not the case. It was completely different. You were not available to me. You shut yourself off to me completely. It was very close to me not even existing. You shut yourself off to participating with the kids when I was involved. I feel like sometimes I have been almost forced into being an outsider in the family. You may not be doing this consciously, and I don’t know if you realise any of this. But it is extremely painful to me. I know that you are going through a lot, but please try, as I am trying with you, to not inflict this emotional pain on me. … I think that you should come home earlier than planned and we should get to work on ourselves. … I will try my best to make it as stress free for you as possible. I love you.”
493. What this e-mail shows of the deceased’s apparent state of mind and the degree to which, the fact-finder might well think, that state of mind and those perceptions were held, sits entirely at odds with the story provided by the appellant. This was, so the jury might well have concluded, hardly the perception of a man who was abusive of his children and violent to his wife. It was precisely the type of contemporaneous statement that was relevant to rebut the picture portrayed by the appellant, a picture that went to the heart of her defence. It was therefore relevant and admissible.
Example 2
494. The appellant returned from the USA to Hong Kong on 30 July 2003. The deceased had been in hospital in Hong Kong for back treatment between 7 and 17 July. On 29 July, he consulted Ms Ser, the solicitor, about his marriage and told her that he was undecided what to do: he made it clear that he had made no firm decision. Although it is common ground that by that date he knew of the appellant’s adultery, he did not disclose that fact to Ms Ser.
495. The appellant testified that between her return to Hong Kong on 30 July and his departure for New York a few days later, their relationship was very bad. She said that they did not speak much and, most particularly that “the sexual violence was pretty bad and it kind of, I guess, picked up where it had left off where it had always been and, I guess in a strange way, it’s kind of back to that routine again of everything else.”.
496. Without evidence of communications between the deceased and third parties, the jury would not have known of the deceased’s concern about the state of the marriage as evidenced by his visit to the solicitor on 29 July, nor, in particular, of an e-mail he sent on 30 July to Ms O’Shea in which he described his meeting with the appellant at the airport upon her return that day. Having spent a lot of time with the children and with her, he wrote:
“She involved herself in everything we were doing, like normal people do. It felt like a family. Opposite to what she had been doing, which was a strategy of exclusion. She has been warmer than she has in over several years. She even went after my hand to hold it when we were in the playroom. I actually got some attention. … Meanwhile, I was shocked she wanted to go with me [to New York]. I am shocked at how I have been treated. I will not forget though the pain I have felt and the lies that have been told. … She is really fucking with my head. … and I love her, or the way it was five years ago, but there is so much she had to get through.”
497. It may reasonably be inferred that this was not the attitude or state of mind of a man who at that very time was engaging in “pretty bad” sexual violence, a mere continuum of the bad times of old, conduct guaranteed to wreck whatever hope there may ever have been for this marriage. That is why passages such as these are admissible.
Example 3
498. The appellant provided testimony about a joint session with a therapist, Ms Halloran, on 15 September 2003 in the course of which she, the appellant, announced that she was done with the marriage and herself wanted a divorce. She said that he became crazy, out of control, kicked a chair and stormed out of the meeting. That display in front of a third party (not called at trial) was, the appellant alleged, followed that night by his over-consumption of alcohol and forced anal sexual intercourse. It was therefore precisely the type of conduct that had previously driven her to drug his whisky, twice to contemplate suicide and that manifested itself yet again on the night of the killing. It was again evidence by her that was directly relevant to her defence of self-defence and to the alternative partial defence of provocation.
499. Yet we know from contact which he had with others – evidence which is said to be irrelevant – that by then he suspected that she was trying to poison him. It is a matter for consideration, along the lines of the referred to in Schindler above, whether a person perceiving such a threat would continue with the very conduct that (he must have appreciated) was causing her to put poison in his drinks.
500. We see, furthermore, that the day immediately following the deceased’s suggested outburst in front of the therapist, and the alleged buggery of his wife the same night, the deceased wrote an e-mail to Mr Shea in which he said: “Strange development at home. Nancy has made a 180-degree turn and wants to stay together. A bit of a roller coaster I have to say.” It transpires that there was evidence from the appellant herself that supports the fact suggested by that e-mail, namely, a friendly disposition on her part that day, because she testified that she had apologized to the deceased and some days later went to his office to decorate it.
Example 4
501. At § 484 above, we chose the phrase “unwelcome smothering attentions” as a juxtaposition to the appellant’s case of callous and cruel violence. In this regard, it is interesting to note an entry in the appellant’s diary dated 13 August 2003, not long after the deceased’s expressions of pleasure at the seeming improvement in the marriage. It coincides with their presence in New York after his operation there. In her testimony, she said that whilst there he was abusing her again: ‘The oral sex continued, the anal sex continued.’. However the diary entry reads:
“He wants kissing … sex ... sex … sex. ... sex ... if I dare so no … he’ll get all emotional and g little me .. poor rob … poor rob… poor rob … he doesn’t trust me … and no he doesn’t wanna be away from me … but I can’t take smothering … il explode. …”.
502. It is true that there she asserts a desire for sex on his part. However, not only is there no allegation of force but, to the contrary, it is a picture of a man feeling sorry for himself, who, far from treating her callously, is smothering her with his attentions. There is, we think, much utility to the fact-finder in matching these diary entries with the utterances and e-mails of the deceased and then comparing them with the picture painted by the appellant in her testimony.
Example 5
503. Mr Egerton’s testimony was that in late August 2003, the deceased asserted that there was a 50-50 chance of the marriage continuing and that in the course of a discussion as to what might happen if the spouses separated, the deceased expressed an intention of seeing the children at the weekends; an intention reiterated on 31 October 2003 after the deceased had discovered continuing contact between the appellant and her lover. Mr Egerton’s evidence was that by the meeting of 31 October 2003, the deceased had come to accept that the children would live with the appellant. This was evidence that could correctly be admitted of his intention to forego custody of the children, thereby lending credibility to the inference that if the subject was indeed broached on 2 November, he is unlikely to have told the appellant that he had filed for divorce and was taking the children.
504. In summary, we are satisfied that the oral and written statements by the deceased were admissible as original evidence of his state of mind when he made them. The fact that he held the beliefs, hopes, and intentions evidenced by those statements, were relevant to material facts in controversy at the trial, and the evidence was legitimately advanced to render less probable claims by the appellant about what was happening within the marriage at given times, which in turn was relevant to the defence that she raised. The evidence was relevant to assist the fact-finders when considering the two contradictory explanations of the occurrence that lay at the heart of the case and, ultimately, relevant in rebuttal. It is unnecessary in the circumstances to determine whether they were admissible also as “background” or “relationship” evidence, although we are of the opinion that on that footing too, the evidence was admissible.
505. We turn next to statements by the deceased that he believed that the appellant was poisoning him.
506. Mr McCoy’s submission in relation to this evidence was that it could have no bearing on any relevant action of either the deceased or the appellant and was not put forward in rebuttal of any denial from the appellant, for in the present case she admitted – and indeed had told Dr Wong – that she had put Ambien in the deceased’s whisky on more than one occasion. Insofar as the statements were admitted to show the deceased’s state of mind about his marriage, it was contended that those suspicions did not lead the deceased to act in any particular way; and there was no evidence that he had communicated his suspicion to the appellant. The evidence was, Mr McCoy submitted, inadmissible; but if admissible its prejudicial effect was overwhelming whereas its probative value was insignificant.
507. 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 the appellant’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, ensuring that he and he alone consumed it. Instead, the picture that emerged was of a milkshake laced with drugs and delivered to the deceased not by the appellant herself but by one of the children and, moreover, delivered not only to the deceased but also to a third person, Mr Tanzer.
508. 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 the deceased’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 the appellant, stood this apparently odd feature, seemingly in her favour.
509. 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.”
510. 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. So much was, eventually, acknowledged by the appellant in cross-examination:
“Q: And in relation to his whisky drinking, that was something that would put a stop to it straight away, Mr Kissel’s whisky drinking.
A: No.
Q: Do you agree with that?
A: No, I don't.
Q: He didn't trust you; he didn't trust his whisky. He had an eBlaster report with an orange highlight through it, you searching the net, “sleeping pills, overdose of sleeping pills”.
A: Yes.
Q: So by that time, September, Mr Kissel would have been-or Robert Kissel would have been on red alert about anything you did. Do you agree with that?
A: I would imagine so, yes.
Q: The level of mistrust between you and Robert Kissel was extreme by that time, Mrs Kissel, wasn’t it?
A: I would imagine it was.”
511. 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.
512. It follows that the evidence of his suspicions was relevant evidence, not to prove a past fact, but as evidence of a state of mind from which might be inferred further facts relevant to rebut the account advanced by the appellant about the events of 2 November 2003.
513. Given the relevant purpose for which those statements were admissible and given also the fact that the appellant admitted lacing the deceased’s drink in late August 2003, we do not agree with Mr McCoy’s contention that the prejudicial effect of the testimony outweighed its probative value.
514. Accordingly, this ground fails.
Ground 9: Self-defence
515. It was suggested that there were a number of material misdirections and non-directions in relation to self-defence.
516. The jury was told at the outset of the summing up that the defence in this case was that of self-defence, the appellant “having 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”, but that the prosecution case was that this was a case of premeditated murder.
517. When he came to the law of self-defence the judge directed the jury that it was for the prosecution to make them sure that the appellant was not acting in self-defence. He then said, at 42-43:
“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).
518. The appellant complained, first, of the passage there emphasized:
“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.”
519. It was said that this constituted a material misdirection of law because there are circumstances in which self-defence is available to a person who was the initial aggressor, as well as to the person who nurtures a desire for revenge.
520. The proposition of law that the initial aggressor or a person who is angry or spiteful may nonetheless in some situations avail himself of the defence is non-contentious. It is however entirely a fact-sensitive question, and it is instructive to note the facts of some of the cases drawn to our attention in which the issue was live and, thereafter, to examine the evidence by reason of which it is said that the issue was live in the present case.
521. In Burns v HM Advocate [1995] SLT 1090, the trial judge directed the jury that one of the preconditions to the defence was that “the accused must not have started the trouble.” The problem with that direction in the context of that case was that there was ample evidence produced by the prosecution that the accused had “started the trouble” in the sense that he had earlier assaulted several people in the street, then caused a disturbance in a nightclub and then, outside the club, had assaulted the deceased’s cousin. After the fight came to an end, the cousin and the deceased followed the appellant who, according to the defence he advanced, thought that they were chasing him, so he reacted with violence. His case was that it was in response to their pursuit after he had walked away that he reacted in self-defence.
522. It can readily be seen why in those circumstances the court held that there had been a misdirection. The fact that the appellant had, at an earlier time, started the trouble could not, if his account were or might be true, justify the deceased’s later pursuit of him, and he was entitled to defend himself against the new attack which was threatened. The point made was that a person who is in general the assailant was not thereby necessarily excluded from a plea of self-defence. Their Lordships said, at 1093:
“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.
In our opinion the proposition was in any event too broadly stated for it to be appropriate in the circumstances of this case. The incident in which the blow was struck was the culmination of a whole series of acts of aggression and violence, including the assault upon [the cousin] in the street, of which the appellant might be said to have been the originator. 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.” (Emphasis added).
523. R v Howard (2003) 20 CRNZ 319 is another case of a two-stage event. During the first stage, when the appellant and the complainant were the worse for drink, there was a heated altercation with pushing and shoving. After a break, during which the complainant went outside and returned, there was a second incident in the course of which the complainant came off second-best and suffered injuries. The appellant’s case was that at the second stage, the complainant had attacked her in response to which the appellant bit the complainant. It was the bite that led to the conviction in respect of which the appeal was launched. The judge directed the jury that the law did not protect a person from the consequences of acting out of revenge, retribution, spite, or anger.
524. It is, once more, not difficult to see why, in the circumstances of that case, the New Zealand Court of Appeal held that to be a misdirection, for if the complainant had indeed attacked the appellant in the manner suggested and the appellant’s reaction was no more than was reasonable in the circumstances, as honestly perceived by the appellant, no more was needed to found the defence. It is implicit from the judgment, at § 25, that the court agreed with counsel’s submission that self- defence was concerned with meeting future possibility and could not “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. Any such additional mindset would not prevent the accused from availing herself of the defence.”
525. The principle articulated in Burns has been endorsed by the Court of Appeal in England in R v Balogun [1999] EWCA Crim 2750, in which a judge had directed a jury that the person who starts the violence could not avail himself of the defence; and in R v Rashford [2005] EWCA Crim 3377 where the judge directed the jury that the defence was not available if the defendant had gone to the place of the eventual fatal attack “for revenge because then of course he has gone to the incident, it's not that the violence has come to him, he has taken the violence to [the victim].” Balogun was a case in which there had been earlier violence at a stage different from that in which the fatal wound had been inflicted; and Rashford was a case in which there had been an earlier trivial argument which apparently engendered a grievance in the defendant.
526. In Rashford , the court noted, at § 19, it was “common to find in a summing up a direction … that a person who acts in revenge does not act in self-defence.” It was a direction to be afforded only where appropriate and that if the judge wished to give a direction along those 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.”
527. None of the authorities to which we have been taken suggests that the proposition stated by the trial judge and which is at the centre of this ground of appeal is of itself objectionable. There is a distinction to be made between two forms of reaction to another’s conduct: on the one hand, reaction in the form of defence, which looks to an anticipated act and is based, as Howard puts it, upon the fear of a future assault and, on the other, reaction in the form of revenge which looks merely to the past. Where there is evidence, as there was in the present case, of past abuse, it becomes appropriate to draw that distinction to the jury’s attention and to instruct them that mere reaction to past abuse does not of itself constitute self-defence. As was pointed out in Rashford , whether a statement of the law to that effect requires qualification or “something more sophisticated” depends upon the facts of the case. In our judgment, no such qualification was required in this case.
528. In the instant trial, the case for the prosecution was of a premeditated and entirely unprovoked attack by the appellant. There was no suggestion in any evidence led by the prosecution of some earlier event, that might have been the cause of some delayed reaction by, or wellspring of spite in, the appellant. As against that, the appellant’s case was of a prolonged history of abuse by her husband. It was her evidence to that effect that made it appropriate for the judge to warn the jury that prior abuse could not render lawful an attack born of revenge. Nor was it any part of the appellant’s case that she had been the aggressor, at any stage. According to her, it was the deceased who had taunted her that evening with threats of divorce; he it was who first armed himself with a weapon and had dragged her into the bedroom seeking to force himself upon her; and he it was who, after she had defended herself against his first attack, had threatened to kill her and had then attacked her with a baseball bat.
529. In those circumstances, it would have been odd for the judge to have instructed the jury that a person who was the initial aggressor might nonetheless be acting in self-defence. Had he done so, he would, to make sense of it, have had to explain the findings of fact in respect of which that direction would be applicable. We fail to see an evidential basis for it.
530. However, Mr McCoy postulated one. It went something along the lines that the jury might have found that, having drugged the deceased, the appellant struck him with the ornament but that, insufficiently drugged to render him helpless, he roused himself, went berserk, attacked her with the baseball bat to which, in self-defence, she reacted by striking him the fatal blow or blows. This was a fanciful scenario. It would have served only to puzzle the jury.
531. What the judge told the jury in the sentence that immediately followed the one about which complaint is made, was that far from suggesting that she was an aggressor or one acting out of revenge – a circumstance which would not provide a defence – the appellant’s case was that she had been the victim of an unwarranted attack by the deceased in circumstances which, if true or possibly true, did provide a defence. He was correct to do so.
532. The argument was then advanced on an alternative basis. It was said that a direction to the effect that a person who had been the initial aggressor might nevertheless be acting in self-defence ought to have been delivered because in addition to the defence of self-defence in this case, there was also a defence of provocation – although, as we will discuss later, the appellant specifically disavowed that defence at trial. Provocation necessarily connotes anger, so that in a case in which the two defences are run, a comment such as that made by the judge is, it was argued, inevitably inappropriate.
533. We do not agree. What is appropriate is the factual context in which directions are given and the delivery of correct and clear directions suited to the case at hand. In this case, it was appropriate that the jury knew that violent visitation of revenge for past conduct by the victim was not the basis for a defence of self-defence. That is what the judge told the jury.
534. There were a number of further complaints about the judge’s directions in relation to self-defence; namely, that the judge:
1) failed to direct the jury that a pre-emptive strike was permissible;
2) failed to direct the jury that there was no duty upon the appellant to retreat;
3) failed to bring home to the jury the fact that the reasonableness of force used was to be assessed against the threat as genuinely, even if mistakenly, perceived by the appellant; alternatively, that his directions in this regard were confusing; and
4) ought to have directed the jury that for the purpose of deciding whether the force used was reasonable, they were to disregard any blows struck after the fatal blow.
535. Judges are enjoined to tailor their summing up to the case. That is because the interests of justice are better served by a comprehensible and accurate summing up than by one that covers all conceivable terrain no matter whether irrelevant or incomprehensible.
536. There was no suggestion in this case of a pre-emptive strike. What possible point there would have been in telling the jury of the permissibility of pre-emptive strikes is difficult to see, save only as a meaningless exercise by a judge concerned more to tick boxes than to deliver a contextually sensible summing up.
537. As for retreat, it is true that counsel for the prosecution put to the appellant that she could have left the house rather than grab the ornament, but that was to test the credibility of her rather strange account that she walked some distance away from the deceased to take hold of the ornament because he was allegedly wielding a baseball bat and then walked back to him. It was put to her that this was an odd thing to do; that she had more easily accessible weapons at her disposal. It was the very act of going to where she did that was suggested to be strange. In any event, this was directed to a stage of events well before the actual attack allegedly initiated by the deceased. There was no suggestion by counsel for the prosecution that once it became clear that she was to be attacked she had a choice other than to defend herself. It would have been clear to the jury that if the account given by the appellant was or might be true, she had acted in self-defence. The prosecution case, rather, was that there was never a hint of an attack by the deceased but that this was a premeditated murder.
538. We do not agree with the third additional complaint. The judge made it clear in his summing up that the jury was to ask itself two questions: the first was whether the appellant believed, or may honestly have believed, that it was necessary to use force to defend herself; and the second was whether, taking the circumstances as the appellant believed them to be, the amount of force which she used was reasonable. Those were the correct questions to pose.
539. It was suggested that the jury must have been confused because, when introducing the meaning of the word “unlawful” earlier in the summing-up, the judge said: “… it is both good law and good sense that a person who is attacked, or believes that she is about to be attacked, may use such force as is reasonably necessary to defend herself”, without qualifying that by making it clear that reasonableness was to be viewed in the circumstances as the appellant perceived them. Yet again, this is to ignore context and what later followed. This passage was delivered in the context of introductory remarks directed at explaining to a jury what might be a lawful killing and what might be an unlawful killing. It was not directed to the precise questions that had to be asked when dealing with the meaning of self-defence, a point to which the judge shortly after, specifically and accurately, directed the jury’s attention.
540. A similar error, it was said, was made later in the summing up when the judge said: “ … if you think that the force the defendant used was or may have been reasonable, she is not guilty.” That was a general closing remark which, we are entirely satisfied, did not qualify the specific and correct directions as to the meaning of self-defence, which directions were afforded added prominence by the fact that they were reduced to writing and handed to the jury.
541. The last of the four additional complaints was based on the premise that the first of the five major blows was fatal and that the remainder were part of a frenzied attack on a man who happened then to be dead.
542. The premise was not established. Even if it were, the argument is not sound. The evidence of the pathologist was that each of the five blows was potentially fatal. Not surprisingly, no-one was able to say whether death resulted from the first blow or from a combination of that blow with one or more of the others. The direction for which Mr McCoy contended would nonetheless have required the jury to determine whether death occurred after a particular blow and, if so, which. That would have presented an impossible, pointless and academic exercise: impossible, because the evidence did not tell them the answer; pointless, because the action of striking five forceful blows was relevant in assessing the reasonableness of her reaction to his alleged assault; and academic, because it is patently clear from the evidence that each blow in itself was heavily violent and capable of causing death.
543. Every conceivable point has been taken in relation to the subject of self-defence. In our judgment, none has merit.
Ground 10 : Provocation
544. Ground 10 asserts that the judge misdirected the jury on the first of the two questions which the jury needed to consider in regard to the partial defence of provocation.
545. The judge summarized the appellant’s evidence relating to the deceased’s conduct which related to the issue of provocation in the following manner:
“In this case, have regard to the evidence led before you of the many years of physical abuse visited upon the defendant by Robert Kissel, according to the defendant. The defendant testified that over a five-year period in which she and Robert Kissel were residents of Hong Kong, he repeatedly inflicted forced anal sexual intercourse on her, notwithstanding her continued and continuing resistance. He required her to perform oral sex on him, which she made clear she did not wish to perform. Also have regard to her testimony of acts of physical violence done to her by Robert Kissel over the same period. He caused her, so she testified, broken ribs, bruises and black eyes. Throughout this period, so the defendant testified, Robert Kissel abused both cocaine and alcohol, visiting his resulting mood swings upon her in particular, but the family in general.
Immediately before the World Fair, the Hong Kong International School event, in 2001, he had broken one of her ribs whilst positioning her to inflict anal sexual intercourse upon her. During the family skiing holiday in Whistler at Christmas 2002, whilst in the condominium, he slammed her into the wall of the bathroom causing her head to hit a shelf. On 8 September 2003, during an ongoing argument that they had after a visit to the marriage counsellor, Ms Halloran, whilst on the balcony of their home in Parkview, he slammed her into a glass door causing both of them to fall over and break a chair.
Have regard to the evidence relating to the conduct of Robert Kissel to the defendant and members of the family over that period of years when you come to consider the events of the evening of Sunday, 2 November 2003.”
The judge then went on to set out, in detail, the appellant's version of events that occurred that night.
546. In R v James and R v Karimi [2006] 2 WLR 887, [2006] EWCA Crim 14 the Court of Appeal in England followed the decision of the Privy Council in Attorney General for Jersey v Holley [2005] 2 AC 580, [2005] 3 WLR 29, effectively overruling the decision of the House of Lords in R v Smith (Morgan) [2001] 1 AC 146. Holley identified the ingredients of the defence thus:
“...The first ingredient, known as the subjective or factual ingredient, is that the defendant was provoked into losing his self-control. This concept is not without its own difficulties, but it is not necessary to pursue them on this occasion. Suffice to say, in deciding whether this ingredient exists in a particular case all evidence which is probative is admissible. This includes evidence of any mental or other abnormality making it more or less likely that the defendant lost his self-control.
The second ingredient, often called the objective or evaluative ingredient, raises, in the language of the statute, "the question whether the provocation was enough to make a reasonable man do as he did ... [taking] into account everything both done and said according to the effect ... it would have on a reasonable man". Broken down, this objective ingredient has two elements. The first element calls for an assessment of the gravity of the provocation. The second element calls for application of an external standard of self-control: "whether the provocation was enough to make a reasonable man do as he did".
The statutory reference to a 'reasonable man' in this context is, by common accord, not the best choice of words. It is difficult to conceive of circumstances where it would be 'reasonable' for a person to respond to a taunt by killing his tormentor. Rather, the phrase is intended to refer to an ordinary person, that is, a person of ordinary self-control.”
547. Those elements were encapsulated succinctly in R v van Dongen and van Dongen [2005] EWCA Crim 1728:
“There are thus three elements:
there has to be evidence on which the jury could find that the person charged was provoked;
there has to be evidence on which the jury could find that he lost his self-control;
the provocation has to be enough to make a reasonable man do as he did.
The last of these three elements is by statute left for the jury. The first two are usually in the authorities combined as a single composite.”
548. Mr McCoy accepted that the judge initially correctly directed the jury in respect of the first question when he said:
“There are two questions that you will have to consider before you are entitled to conclude that the defendant was or may have been provoked on this occasion.
(1) May the deceased's conduct, that is the things he did or things he said or both have provoked, that is caused, the defendant suddenly and temporarily to lose her self-control?”
He also accepted that the judge correctly directed the jury in respect of the second question when he said:
“If, however, your answer to that [first] question is "yes", then you must go on to consider the second question, and question 2 is this: may that conduct have been such as to cause a reasonable and sober person of the defendant's age and sex to do as she did?”
549. The perceived difficulty arose when the judge elaborated on the first question. In explaining that the jury was entitled to have regard to past behaviour by the deceased as well as to the immediate act which was said to have provoked the appellant, the judge said:
“Provocation only applies in the case of a sudden and temporary loss of self-control of the kind that makes a person for the moment not the master or mistress of her mind. So a defendant who plans an attack in revenge for provocative conduct does not act under provocation as I have defined it because, in such circumstances, she has not suffered a sudden, temporary loss of self-control. Although provocation which reduces murder to manslaughter applies only if the act of the defendant is committed suddenly from a provoking event, that does not require you to ignore past behaviour by the deceased, since an incident which is trivial when examined in isolation may nonetheless be one which might cause a reasonable woman to react explosively in the context of provocation over an extended period.” (Emphasis added)
550. The appellant contended that by using the phrase "a reasonable woman" as opposed to "the defendant" the judge incorrectly imported an objective standard into the first question or, at the least, the use of that phrase and his subsequent explanation of it in regard to the second question would have confused or muddled the jury.
551. The Court of Appeal in Holley elaborated on the approach to be adopted by the judge in directing a jury, at § 25:
“The second point their Lordships wish to mention concerns the three examples given by Lord Steyn in his dissenting opinion in Luc Thiet Thuan v The Queen, [1997] AC 131 at 149. Lord Steyn instanced cases of women who are more prone to lose their self-control because they are suffering from postnatal depression, or "battered woman syndrome", or a personality disorder. Lord Steyn suggested that, on the majority view of the law expressed in that case, in those three instances the judge would have to direct the jury that on the defence of provocation the evidence of the woman's condition was admissible on the "first and subjective inquiry" but not on the "second and objective inquiry". Their Lordships respectfully differ. This is not wholly correct. As explained above, the evidence of the woman's condition may be relevant on two issues: whether she lost her self-control, and the gravity of the provocation for her. The jury will then decide whether in their opinion, having regard to the actual provocation and their view of its gravity for the defendant, a woman of her age having ordinary power of self-control might have done what the defendant did.”
552. We accept that the judge was wrong to have used the “reasonable woman” phrase in the particular passage that we have cited at § 549 above, and that had the jury been left with the impression that the test in the first question was objective, that would have been a material misdirection. However, in our judgment, in full context, the jury could not have been left with that impression. The question expressly posed was whether the deceased's conduct caused the appellant suddenly and temporarily to lose her self-control. That was a question of fact which could only be answered by looking at what in fact happened, and at what the appellant in fact did. That much would have been clear by the terms of the question which the judge had posed shortly before he used the impugned phrase. This would have been reinforced, very shortly after the use of the phrase, when the judge returned to the first question, saying correctly:
“So returning them to that question that I have posed to you and I will just repeated for you - may the deceased's conduct, that is the things he did or things he said or both, have provoked, that is caused, the defendant suddenly and temporarily to lose her self-control?
If you are sure that the answer to that question is "no", then the prosecution will have disproved provocation,...”
553. We are satisfied that it must have been entirely clear to the jury that the first question which they needed to address was whether it was the conduct or words of the deceased which provoked the appellant.
554. This ground fails.
Ground 11 : Diminished responsibility
555. Putting aside for the moment the question of fresh evidence, there are two limbs to the attack on the judge’s approach:
1) that there was evidence before the jury of diminished responsibility, for which reason he had a duty to leave that issue; and
2) that he had a discretion himself to call evidence, which was in his possession in the form of the various reports, which he ought positively to have exercised by calling the evidence and, having done so, there would then have been a duty to leave the issue to the jury.
556. This submission was then developed in argument before us, the proposition being refined to the suggestion that where there is some evidence of any defence the judge has a “crystal clear” duty to leave it to the jury.
557. Coupled with this ground of appeal is an application pursuant to the provisions of s. 83V of the Criminal Procedure Ordinance for leave to adduce in evidence two psychiatric reports and one psychometric assessment.
558. It is necessary to return briefly to the factual background concerning this issue as the facts are relevant both to the supposed failure on the part of the judge and the application to adduce evidence. As has been seen from a consideration of ground 8, above, there was an initial application for bail by the appellant on 1 November 2004. At that hearing, the solicitor acting for the appellant made an affirmation in support of her application in which he stated, in terms:
“Should the prosecution prove that Mrs Kissel was responsible for the death of her husband, on the materials I have seen and the instructions I have taken, the following defences are available to Mrs Kissel in this case, (i) self defence; (ii) provocation and (iii) diminished responsibility.”
559. This theme was developed by leading counsel for the appellant who appeared in those proceedings, albeit emphasising that if the defence were run, it would be on the basis of a “heat of the moment" diminished responsibility. The possibility of the defence of diminished responsibility being raised was, even prior to that hearing, apparent to the prosecution.
560. However, despite the provisions of s. 65DA of the Criminal Procedure Ordinance, no report was filed until May 2005. On 9 May 2005, in advance of the trial which was scheduled to commence on 19 May 2005, the appellant's solicitor wrote to the prosecution advising that they would "... shortly be serving a psychiatrist's report which will be relied [on] in the defence case.". The report referred to was that of Dr Wong. The report itself is dated 12 May 2005 and was served on 14 May 2005.
561. On 6 June 2005 a further report, dated 18 April 2005, by a Dr Calais Kin-yuen Chan, which had been prepared at the request of Dr Wong, was served on the prosecution. Also served on the prosecution, on 13 June 2005, was a report dated 7 June 2005 of a Dr Susan Weitzman. It seems that the judge was not given a copy of this particular report: it is unclear whether the judge or the prosecution was told that she would be called as a witness. For the sake of completeness, there was also a report, dated 22 June 2005, prepared by a Dr Lui, a psychiatrist in the employ of the government. That report came into the possession of the defence as part of the prosecution's unused material: Mr King indicated that the defence did not propose to call Dr Lui.
562. On 19 May 2005, there was discussion between Lunn J and counsel in the course of which the judge made reference to the issue of diminished responsibility. The judge was reminded by Mr King that the issue had been before Burrell J as it had been set out in the solicitor’s affirmation.
563. On 3 June 2005 the judge delivered his ruling subsequent to argument which he had heard regarding the potential admissibility of various aspects of the evidence. In the course of that ruling he observed:
“The prosecution face the real prospect of having to meet the defence of self-defence and the partial defences of provocation and diminished responsibility.”
There was no suggestion by Mr King, who, as the transcript shows, demonstrated no reticence over interjecting, that this statement was in any way inaccurate.
564. At the close of the prosecution case on 1 August 2005, there were discussions between the judge and prosecuting and defence counsel concerning the various reports and also concerning, amongst other things, objections which it was anticipated might arise in the course of presentation of the appellant's case. It was quite clear that the issue of diminished responsibility was still a live issue at that stage and remained so whilst the appellant was being cross-examined and right up to the stage when she closed her case.
565. In the event, the appellant did not call any of the four doctors who had prepared reports. It will be recalled that there had been an express indication to the prosecution in this connection that Dr Wong and Dr Chan would be called. A notable feature of the way the defence was conducted was that there had also been a clear indication to the court that Professor Drummer would be called to give expert evidence and that the appellant’s solicitor would also be called to testify in connection with various matters. Neither of these foreshadowed witnesses was called either.
566. Given the way in which the case had developed and in, particular, the appellant’s testimony, the decision to abandon the defence of diminished responsibility is readily understandable for, by that stage, it had no prospect of success. The only sensible conclusion that may be drawn in the circumstances is that the appellant, with the benefit of advice, made a conscious and informed decision not to proceed with that defence. In any event, whilst, of course, it is open to an accused to conduct a defence how he or she sees fit, within the limits of propriety, it does not lie in his or her mouth to complain if a tactical decision does not produce the desired result.
567. In summary, by November 2004 the prosecution was aware of the possibility of having to meet a defence of ‘heat of the moment’ diminished responsibility; by May 2005, reports had been submitted to the prosecution and the court upon a case of long-term major depressive disorder; the court had been told that the authors of the reports would be called in regard to the content of them; and that promised defence remained a live issue until the conclusion of the defence case on 22 August 2005.
568. There has been no suggestion by the appellant that her decision not to lead the evidence available to her was in any way affected by an ongoing mental condition such as was the case in, for example, R v Borthwick [1998] Crim. L.R. 274 and R v Weekes [1999] 2 Cr. App. R 520.
569. Mr King specifically contended before the judge that he should not leave the partial defence of provocation to the jury, only a defence of self-defence having been advanced. It is clear from the judge’s discussion with counsel regarding the proposed directions to the jury that he regarded the appellant as having chosen not to pursue the issue of diminished responsibility. At no stage during those discussions did either counsel, but particularly Mr King, suggest to the judge that this was an appropriate case in which to leave diminished responsibility for consideration by the jury.
570. Our attention was invited to the decision in HKSAR v Coady (No.2) [2000] 3 HKLRD 573 as authority for the proposition that there is a duty upon a judge to leave any defence to a jury if there was evidence to support that defence even if the defence had not sought to rely on it, or indeed, even if, as in the present case, the defence had specifically disavowed that line. Coady related solely to the duty that has been held to exist in regard to provocation. It is self-evident from the fact that the judge left the issue of provocation to the jury over the protestations of Mr King that he was fully aware of that decision.
571. We recognize that in the course of Coady reference was made to the decision of the Privy Council in Von Starck v R [2000] 1 WLR 1270 which was described as "not in the context of provocation"but the emphasis in von Starck in regard to a judge's duty is qualified by Lord Clyde’s observation that:“…the issues in a criminal trial fall to be identified in the light of the whole evidence led before the jury. ” (Emphasis added.)
572. A singular feature of the present appeal is that despite the appellant being in possession, prior to trial, of material which she contended would have formed the basis for the claim of diminished responsibility and despite her specific indications to the court that those able to give that evidence would be called as witnesses, that evidence was not led before the jury as a result of a conscious decision on her part.
573. In this connection, we note the dicta of Lord Steyn in Luc Thiet Thuan v R [1996] 2 HKCLR 45 at 65F as follows:
“I have not lost sight of the existence of the defence of diminished responsibility....
The burden of establishing this defence is on the defendant who raises it. It is an optional defence. Only if it is relied on by the defendant may the trial judge leave it to the jury. It is often a matter of tactical judgement whether a defendant, who suffers from an abnormality of mind, will be advised to rely on both defences or should simply rely on provocation where he shoulders no burden of proof. In any event, it is restricted to "an abnormality of mind" which "substantially impaired (the defendant’s) mental responsibility for his acts". It does not cover the whole field of significant mental attributes which may affect provocation.” (Emphasis added)
574. We regard it as important to bear in mind that, unlike the partial defence of provocation where the prosecution bears the onus, to the usual criminal standard, to negative the defence, the partial defence of diminished responsibility is one in respect of which the appellant bears the onus to establish the defence, albeit to the lower civil standard.
575. In Campbell (1987) 84 Cr.App.R. 255 the Court of Appeal held that the Homicide Act 1957 not only placed the burden of proving diminished responsibility on the defence, it also left to the defence the decision whether to raise the issue at all, saying, at 259, after reviewing the evidence of a consultant psychiatrist:
“That was the full extent of the evidence given by Dr MacKeith, and in our judgment it is clear that the doctor never even addressed himself in his evidence to the final matter which would have to be proved by the defence in order to establish diminished responsibility, namely that the abnormality was such as substantially to impair the mental responsibility of the appellant for his acts and omissions in doing the killing.
...
Accordingly when Dr MacKeith left the witness box there was not before the jury even prima facie evidence of the defence of diminished responsibility. The defence had not undertaken to prove diminished responsibility, nor had they succeeded in doing so, even per incuriam So the judge was right when he said that there was no evidence whatsoever to substantiate that defence.
If there had in fact been prima facie evidence, a difficult situation could have arisen. It is unnecessary for us in this case to attempt finally to resolve the difficulty. As Mr Burton for the appellant pointed out, where on the evidence a defence such as self defence or provocation can be seen to exist, a judge must leave that defence to the jury, even if it is not relied upon by those appearing for the defendant at trial (see, for example, Porritt (1961) 45 Cr.App.R. 348; [1961] All E.R. 463). He submits that the same onus should be cast upon the trial judge if there is evidence of diminished responsibility.
However, section 2 (2) of the Homicide Act 1957 provides that "it shall be for the defence to prove" diminished responsibility. It seems to us that those words not only dictate which party shoulders the burden of proof once the issue is raised, but also leaves it to the defence to decide whether the issue should be raised at all. As this court indicated in Kooken (1982) 74 Cr. App. R 30, 33, this is really an optional defence, and, at least in cases where the defendant is represented by counsel, it seems to us that the most that a trial judge should do if he detects or thinks that he detects, evidence of diminished responsibility is to point out to defence counsel, in the absence of the jury, what he has detected, so that the defence can decide whether they regard the issue as one for the jury to consider. The judge 's knowledge of the evidence available in relation to the issue of diminished responsibility will inevitably be limited, and if he does more than I have indicated he may cause serious damage to a defence which has been put forward, without adding anything to the case.”
576. In R v Arnold 31 BMLR 24, Hobhouse LJ noted:
“The cases of R v Kooken (1982) 74 Cr App R 30 and R v Campbell (1987) 84 Cr App R 255 emphasise that the decision whether to raise the defence of diminished responsibility is one for the defence at the trial and not the court.”
577. Campbell is of particular relevance as, in that case, a psychiatrist had testified on the issue of diminished responsibility but his evidence did not go sufficiently far even to establish a prima facie case: the appeal court held that in such circumstances there was no duty on the trial judge other than to draw to counsel’s attention the potential existence of this defence. In the instant matter, even though the appellant and her advisers were in possession of various medical reports, which it is now suggested would have established the diminished responsibility, a conscious decision was made not to lead the evidence on this issue.
578. In any event, putting aside what may be said to be the special considerations that attach to the defence of diminished responsibility and a judge’s duty in regard thereto, the general duty upon a judge to leave an alternative verdict to a jury arises only where the evidence presents that alternative as an obvious and viable one; where, in other words, there is evidence of a defence that is fit to be left to the jury. Here there was none.
579. The written submissions in this regard are quite extraordinary in the particulars given of the evidence that allegedly emerged in support of the defence of diminished responsibility. In what constitutes the most voluminous section of the written submissions, no fewer than 14 pages are devoted to such particulars. Those particulars rely entirely upon questions put by counsel for the prosecution at trial in the course of his cross-examination of the appellant referring to the opinion of Dr Wong and to some of the opinion of Dr Yuen. There is nothing in Dr Yuen’s reports which supports a defence of diminished responsibility. Insofar as Dr Wong is concerned, it is trite that counsel’s questions, and citation of Dr Wong's report, did not constitute evidence of the truth of what was in that report, which was never made evidence. The point of that cross-examination is expressly recognized in the written submissions:
“79. The intention of prosecution counsel's cross examination of the [appellant] was clearly to juxtapose the submissions previously made by senior counsel at the bail application .. and compare them with the diminished responsibility evidence that the prosecution counsel believed was going to be lead (sic ) by the applicant at the trial - that of Dr C K Wong.”
580. The fact is, however, that no such evidence was led and that is the end of the matter. The only medical evidence adduced at trial on behalf of the appellant, namely, that of Dr Dytham and Dr Fung, fell far short of the type of evidence that might support a defence of diminished responsibility. As a consequence, there was simply no evidence before the jury which may be said to have triggered any form of intervention by the judge.
581. In the event, on any approach to the matter, there was no duty upon the judge, on the evidence available, to have left the defence of diminished responsibility for the jury's consideration. On the contrary, it would have been a bizarre step for him to take. It is difficult to envisage what he would have said to the jury that, in the context of the evidence adduced and a standard direction on the law of diminished responsibility, would have made sense.
582. We do not accept that there is any justification for extending the duty referred to in Coady from a situation where the prosecution bears the onus to negative a defence which has become apparent to one where the judge would effectively be foisting upon an accused a defence on which he or she bears the burden especially where it is apparent that the accused apprehended the availability of that defence.
583. Does a discretion, as opposed to a duty, vest in the judge himself to adduce evidence of diminished responsibility even if to do so would be contrary to the wishes of the accused?In favour of this proposition, reliance is placed on the decision of the Court of Appeal in Jimmy Johnson v R [1983] HKLR 344 in which it was held that a trial judge in a criminal case does have a discretion to raise the issue of insanity or diminished responsibility of his own motion and that the discretion may be exercised against the will of the accused, to the extent of calling witnesses if necessary, if the interests of justice demand such a course.
584. McMullin VP in delivering the judgment of the court said, at 354:
“Inevitably there will be cases... where the court will be reluctant to approve the exercise of a discretion which takes away the right of an individual, however mentally impaired, to assert his independence of choice in the very forum where that right is held most sacred. Undoubtedly the highest courts in other jurisdictions have hesitated to recognize such a discretionary power... there remains however the serious objection that introducing the issue in this way against the wishes of the accused may prejudice his legitimate interests if, being fit to plead, he has decided that he wishes to concentrate on rebutting the evidence and gaining an acquittal. It would also conflict with such a partial defence of provocation since the jury, with such evidence before them, might well be disinclined to give much weight to his testimony.
In a fitting case however, the balance is surely in favour of public interest as distinct from the interest of the individual offender...
Clearly this is a power which will need to be exercised with circumspection.
There will be cases where the proper exercise of the judge's discretion will favour letting the defendant do what he wishes, in other cases when it will be properly exercised in the public rather than private interest. Which way it will be exercised in the individual case will have to be left to the good sense of the trial judge.”
585. Jimmy Johnson was followed in HKSAR v Tang Kin Kwong CACC488/2002 where the appellant had been unrepresented at trial: the trial judge had left the defence of diminished responsibility as one of the options open to the jury after himself having called evidence concerning the appellant’s mental state and when after the appellant had expressly disavowed that defence at trial.
586. Stock JA, giving the judgment of the court, said at §13:
“Such a course will be exceptional and it is a discretion to be exercised with care bearing in mind the factors to which the decision refers including those which may sometimes appear to conflict, that is, the right of an individual to insist upon his own line of defence and the interests of justice.”
He continued at §15:
“What the court in Campbell [[1987] 84 Cr. App. R 255] said was that the statutory words…underscored the fact that the defence was an optional defence and that the course a judge should normally adopt was to point out the available defence to counsel ‘at least in cases where the defendant is represented’.”
587. A significant feature in Tan King Kwong , entirely different from the present matter, is evidenced in this observation of the court at § 21:
“There was no question in this case of the evidence about mental illness impinging on the prospect of an outright acquittal. There was in reality no such prospect”
588. It will be remembered that the major thrust of Mr King’s objection to the judge leaving provocation to the jury was that this might undermine the appellant’s defence of self-defence in which she had placed total confidence.
589. We see no reason to depart from these earlier decisions: there does vest in a judge a discretion, as opposed to a duty, to adduce evidence of diminished responsibility and having done so then to leave that as an issue for the jury’s consideration - even if in doing so he is acting contrary to the wishes of a defendant. That will be a discretion to be exercised with great circumspection and only in exceptional circumstances. Such a course would not have been justified in the present case.
590. We have little doubt that if the judge had decided in this case to call Dr Wong to give evidence, despite the considered decision of those acting for the appellant not to do so, that judicial decision would have been a ground of appeal and, almost certainly, a successful one. Counsel for the prosecution would, in our judgment, have had a field day in cross-examination of Dr Wong. He would have been able readily to expose the fact that Dr Wong’s conclusions were based entirely on assertions made by the appellant contradicted by objective evidence; and he would have been able to demonstrate a series of material facts which had not been drawn to the attention of, or had been ignored by, Dr Wong. The result would have been to underscore other justified attacks that had been made on the appellant’s credibility.
591. As for the suggestions in Dr Wong’s report that she had for long been depressed and was at the date of the killing in the throes of a major depressive illness, we note the total absence from that report of any recognition of the appellant's ongoing and detailed plans to go to San Francisco for cosmetic surgery on 16 November 2003, a fact which she had confirmed to Ms O’Shea on 4 November, a mere two days after the killing; no reference to the active and lengthy photographic session she had conducted on 1 November; no reference to Dr Dytham’s comment on seeing the appellant on 23 October as to how well she looked and to the appellant’s improved mood on 28 October; and no reference to the cheerful tone of the e-mails she was sending after 2 November to her friends and others, including one on 4 November saying that her dog had just arrived from America and that “we are all loving her once more.”.
592. In the circumstances of this case, the notion that the judge ought himself to have insisted on adducing this testimony is not one that ought to have been advanced in this appeal. It is as unmeritorious a suggestion as might be imagined and, we regret to say, typified the approach to this appeal, an approach that has included anything conceivable whether arguable or not.
593. In relation to the application for fresh evidence to be adduced before this court, we have had regard, de bene esse , to the three reports, those of Dr Wong, Dr Chan and Dr Lui which have been placed before us. We are empowered by s. 83V(1) (c) of the Criminal Procedure Ordinance to receive the evidence, if tendered, of any witness. Section 83V(2) provides:
“Without prejudice to subsection 1, where evidence is tendered to the Court of Appeal thereunder the Court of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if
(a) it appears to it that the evidence is likely to be credible and would have been admissible in proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(b) it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.”
594. In dealing with an application for leave to adduce fresh evidence on appeal pursuant to the provisions of s. 23 of the Criminal Appeal Act 1968, which is in similar terms, in an appeal involving an attempt to persuade the court to receive evidence which might lead to a defence of diminished responsibility being available to the appellant, Lord Bingham observed in R v Criminal Cases Review Commission, ex parte Pearson [1999] 3 All ER 498 at 517f:
“... it is plain that all applications to adduce fresh evidence... turn on their own peculiar facts. This is as it should be, since the exercise of a discretionary power must be conditioned by the merits of the case before the court as the court perceives them... judicial reactions, being human, are not uniform... the cases do identify certain features which are likely to weigh more or less heavily against the reception of fresh evidence: for example, a deliberate decision by a defendant whose decision making faculties are unimpaired not to advance before the trial jury a defence known to be available; evidence of mental abnormality or substantial impairment given years after the offence and contradicted by evidence available at the time of the offence; expert evidence based on factual premises which are unsubstantiated, unreliable or false...”
595. In order for the evidence to be adduced, the appellant first would have to satisfy us that the evidence would afford a ground for allowing the appeal, then establish that the evidence was likely to be credible and would also have been admissible in the trial and, finally, that there was a reasonable explanation for the failure to adduce it. See Chan Tung Cheung v HKSAR [1998] 1 HKLRD 36 at 38F-G.
596. We do not accept that if the evidence were accepted it would afford a ground for allowing the appeal. Our comments hitherto amply illustrate why the evidence was not credible.
597. We add that there is nothing before us which suggests that, immediately preceding and immediately following the commission of the offence, the appellant was receiving medical treatment for the abnormality of the mind to which the reports now advert despite having consulted, in the weeks leading up to the commission of the offence, each of the two medical practitioners who did testify on her behalf. Nor is there anything in the evidence of either of them that indicates that such abnormality of the mind then existed: the evidence of Dr Dytham, in particular, is to the contrary.
598. The reports which it is sought to introduce were prepared some 17 or 18 months after the commission of the offence.
599. The report of Dr Lui is significantly qualified, in express terms indicating "Based on the above examination, which was incomplete , and necessarily the documents available to me, I have come to the following views...". (Emphasis added)
600. The report of Dr Wong contains simply a recitation of what he was told by the appellant and, apparently, by her mother. It also contains selective supportive extracts from or references to statements, notes and records of third parties.
601. There are in any event material inaccuracies in the information imparted to Dr Wong, assuming him to have related it accurately: for example, in § 93 he relates how the deceased had allegedly broken the arm of one of his daughters, which the appellant accepted during her testimony, after Min had testified that he had nothing to do with it, was not true; in § 95 there is an assertion that was it the appellant who suggested marital counselling in which the deceased was reluctant to participate, when the unchallenged evidence is that it was he who was actively seeking a suitable counsellor; at § 23 he describes the appellant as "a social drinker" which is in direct contradiction of the evidence of Dr Dytham.
602. In the circumstances it has not been shown to us that the expert evidence is based on factual premises which are other than unsubstantiated, unreliable or false.
603. We do not accept that there is a "reasonable explanation for [her] failure to adduce" the evidence. There was, as we have indicated, a deliberate and informed decision made by the appellant not to lead the evidence at trial. There is no explanation other than that this was a conscious (and prudent) decision.
604. There should be active discouragement of a tactical decision being made to withhold available evidence from a jury in anticipation of an appellate court later receiving the withheld evidence so as to result in a retrial during which an amplified or substitute defence may be run - particularly where, as here, specific indications have been given that it was intended to call the relevant witnesses. See Ahluwalia (1993) 96 Cr.App.R. 133, R v Straw [1995] 1 All E.R. 187, Jones (Steven) [1997] 1 Cr.App.R. 86, Stephen Weekes, above.
605. The application for leave to call additional evidence is dismissed. This ground of appeal fails.
Ground 12: Circumstantial evidence
606. The 12th ground of appeal advanced by leading counsel reads as follows:
“The judge failed to direct the jury that as the prosecution case depended upon circumstantial evidence, that before an unlawful killing could be inferred they had to first be sure that at the time of his death the deceased was unconscious. The defence evidence pointing to a reasonable inference that the deceased was conscious and that there was a fight was not properly left in context to the jury.”
607. This ground was not developed in oral argument. It was not abandoned and we were instead expressly invited to consider the written submissions on the point, consisting of five brief paragraphs. No list was provided, or even a sample, of what specific countermanding factors there ought to have been but were not drawn to the jury’s attention.
608. We suppose that what is meant by the suggestion that the jury “had to first be sure that at the time of his death the deceased was unconscious” is that they had to be sure that the prosecution version, that the appellant had rendered incapacitated him with drugs, had been proved. This was made as clearly implicit in the summing up as any matter could be. That was the prosecution case. There was no other.
609. The basis upon which it was contended by defence evidence that the inferences relied upon by the prosecution were not proved, was the testimony adduced by and on behalf of the appellant and in the cross-examination of prosecution witnesses. The counter-argument, the defence explanation of what happened and what evidence lay in support of what happened, was summarized by the judge at the beginning of the summing up, again in considerable detail when he summarized the defence evidence in the last section of the summing up, and also when, in the course of summing up the prosecution case, he reminded them of the specific points put to expert witnesses as allegedly undermining their testimony.
610. The written argument continued: “The judge stresses that circumstantial evidence can be very ‘powerful’ but does not properly direct the opposite, that it can also be more readily subject of fabrication or interpretation.”
611. We do not agree that circumstantial evidence by its nature is more readily subject to fabrication than direct evidence. The reliability of each item of evidence depends upon its nature and provenance. Nor was there any need to give a direction that circumstantial evidence was more readily the subject of interpretation. That was self-evident from the nature of the subject matter and from the judge’s directions as to inferences.
612. The next complaint was that : “The judge directed that the jury had to consider whether circumstantial evidence proved guilt or whether on the other hand it ‘reveals only circumstances which may be unreliable and cast doubt on the prosecution case.’” (Emphasis added.) The complaint continued: “This is the wrong way round and suggests a burden disproving circumstantial evidence is on the Applicant.”
613. What the judge said was:
“Circumstantial evidence can be powerful evidence. Indeed, it can be as powerful, or even more powerful, than direct evidence, but it is important that you examine it with care, as with all evidence, and consider whether the evidence upon which the prosecution rely to prove its case is reliable, and whether it does prove guilt, or whether, on the other hand, it reveals only circumstances which may be unreliable and cast doubt on the prosecution case.
Finally you should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Speculating in a case amounts to no more than guessing, or making up theories without good evidence to support them, and neither the prosecution, the defence, nor you should do that.” (Emphasis added).
614. We fail to discern in those passages anything that hints at a reverse onus but, in any event, when the judge turned immediately after the question of circumstantial evidence to the question of inferences, he made it abundantly clear that an inference might only be drawn if it were the only reasonable one that could be drawn.
615. One or two other complaints are made under the rubric “non-direction on circumstantial evidence”, but we see nothing in them.
Ground 13: Agreement on factual basis
616. Ground 13 was based upon the decision in R v Brown (1984) 79 Cr App R 115, contending that the judge failed to direct the jury that they must not only be satisfied of each ingredient of the offence but must be so satisfied on the same factual basis, there being more than one distinct factual basis which may lead to a conviction.
617. In determining the applicability of Brown to the present circumstances, it is necessary briefly to relate its facts. Relevant is the following, at 116 and 117:
“The prosecution case against the appellant was that he fraudulently induced four persons to enter into agreements for acquiring shares in a company and fraudulently attempted to induce another to do so, by making statements all of which he knew to be misleading. Each count contained particulars of a number of different statements relied on by the prosecution as constituting the inducement.
The jury had asked the judge two questions. He dealt with these in his summing up. He said ".... the second question was: "If the individual members of the jury find him guilty of different parts of the count, is he guilty on the whole count, and is a verdict of guilty unanimous?” Members of the jury, the answer to that is this: what you have to be satisfied of in relation to each of the counts is that the defendant dishonestly made the statements and by making them induced the victim concerned to act in the way set out in the count."
He then gave an example... and continued: "... So if you find some of you are satisfied that representation A was made out, some of you are not satisfied about that but are satisfied that representation B was made out, then it does not matter, provided that you are all satisfied that there was the dishonest inducement made..."
It is said that in answering the second question the learned judge misdirected the jury. It is said that the direction made it possible for the jury to convict without there being unanimity upon any particular statement relied upon as constituting the inducement...
Counsel for the appellant was correct in his submission that it is a fundamental principle that in arriving at the verdict the jury must be agreed that every single ingredient necessary to constitute the offence has been established. The false statement is an essential ingredient.”
618. The principles that resulted are expressed at 119 in these terms:
“In a case such as that with which we are now dealing, the following principles apply: 1. Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction). 2. However, where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so , then it is enough to establish the ingredient that any one of them is proved; but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury. The jury should be directed accordingly, and it should be made clear to them as well that they should all be satisfied that the statement on which they are agreed was an inducement as alleged.” (Emphasis added)
619. The appellant contended that it would have been open to the jury to find either (a) that there had been no fight between the appellant and the deceased and that the appellant killed the deceased whilst he was asleep or otherwise incapacitated or (b) that there was a fight between the during which the appellant used excessive force in defending herself.
620. This court, differently constituted, recently had cause to consider the applicability of Brown in HKSAR v Tai Chi-wah and Another CACC497/2006 (unreported). Although Mr McCoy did not formally abandon this ground before us he did not argue it, accepting that that judgment would be regarded as “persuasive”.
621. We do not propose to repeat in detail what was said in Tai Chi-wah and Another . This court took the view, which we share, following R v Agbim [1979] Crim L. R. 171, R v More (1998) 86 Cr. App. R. 234, R v Price [1991] Crim. L.R. 465, R v Mitchell [1994] Crim. L.R. 66, R v Hancock and Another [1996] 2 Cr. App. R 556, HKSAR v Tse Koon Kit CACC388/1997 and Ting James Henry v HKSAR CACC318/2005 that there needs to be a realistic and discernable risk of inconsistency.
622. However, the observations appearing in paragraphs 55 and 56 of Tai Chi-wah and Another are of equal applicability in this matter:
“55. In the instant matter there was no suggestion by any of the very experienced counsel involved in the trial that a Brown direction was necessary. That is not definitive of the matter but it is an indicator that, despite having been present throughout the trial, one another's speeches and the summing up, neither counsel nor the judge saw there being any risk, let alone a discernible risk, of disagreement. (Hancock at p. 560C)
56. At the conclusion of the judge's summing up the prosecutor and counsel for both appellants were afforded, and took, the opportunity of raising matters which arose from the summing up. Neither, directly or indirectly, raised the issue of a Brown direction.”
623. Put shortly, the prosecution bears the onus to establish the commission of the offence beyond a reasonable doubt and, as was the case here, to negative self-defence if it is raised by an accused. That defence only becomes relevant once the prosecution has established the commission of the offence to the satisfaction of the jury. In this context the judge correctly directed the jury. There was, consequently, no "alternative " basis upon which the jury was able to arrive at that conclusion.
624. In the circumstances we are satisfied that this was not a case which lends itself to a Brown direction.
625. This ground fails.
CONCLUSION
626. We have indicated already that leave to appeal is granted on grounds 5 and 6 (cross-examination), ground 8 (hearsay) and ground 10 (provocation). Although each of those grounds was arguable, we are satisfied that none of these nor any of the other grounds had merit.
627. Given the complexity and unusual length of the appeal, as it was presented, with the large number of grounds and ever-shifting sub-issues, we took the precaution of inviting argument on the question of the proviso to s. 83(1) of the Criminal Procedure Ordinance, in the event that we were to conclude that there had been a material misdirection or irregularity in the course of the trial. Arguments were advanced.
628. It will be apparent from our judgment that we have concluded that there have been no material misdirections or irregularities.
629. If, contrary to that finding, any of the matters arising under grounds 5, 6, 8 and 10 constituted a material misdirection or irregularity, we are satisfied that none would have affected the inevitability of a conviction. This would be pre-eminently a case for the application of the proviso.
630. This was as cogent a case of murder as might be imagined. In the welter of arguments and details that have been churned in the course of this case, both at first instance and upon appeal, the wood is in danger of being obscured by the trees. There are a number of central and clear features, about which there can be no reasonable argument:
1) the appellant killed the deceased;
2) shortly before his death, the deceased consumed a milkshake which had been prepared by the appellant;
3) that milkshake contained drugs; so much is self-evident not only from the testimony of Mr Tanzer, Mr Noh and Min, but also from the fact that
4) in the deceased’s stomach were found five drugs of which four had been prescribed for the appellant 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) the appellant had previously put drugs into the deceased’s whisky;
7) the appellant had searched websites for the effects of Rohypnol and for the side-effects of drugs, including heart attack;
8) the forensic evidence that the deceased was lying prone on his bed when the fatal blows were struck to his head;
9) the forensic evidence that the deceased’s body bore no defensive wounds;
10) the killing of the deceased occurred when the appellant 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 the appellant, 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 the appellant’s defence that she had been attacked by the deceased with a baseball bat. Yet that stood in dramatic contrast to the account given by the appellant 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) the appellant proffered a variety of lies to all who enquired, to explain the deceased’s absence after the killing;
iv) it was central, too, to the appellant’s defence that the deceased 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 the appellant – work colleagues, relatives on either side, friends of the appellant or the deceased, domestic helpers – knew nothing of this suggested behaviour either from their own observations or from the appellant. The only exception is Dr Dytham who, when the appellant 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 the appellant and the appellant denied that the assaults involved rape and made no mention of anal sex;
v) in none of the appellant’s own diary entries was there a single record of violence or sexual abuse by the deceased;
vi) when the appellant saw Dr Dytham on 4 November, two days after she had killed the deceased, 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 the appellant 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 the deceased’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.
631. The appeal is dismissed.
(M. Stuart-Moore)
(Frank Stock)
(A R Wright)
Vice-President
Justice of Appeal
Judge of the Court of First Instance
Mr Kevin Zervos, SC, Ag DDPP, Mr PS Chapman, SADPP, and Ms Ada Chan, SGC, of the Department of Justice, for the Respondent.
Mr Gerard McCoy, SC, and Mr Adrian Halkes, instructed by Messrs Mallesons Stephen Jaques, for the Appellant.