HKSAR v. NANCY ANN KISSEL

FAMC No 63 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 63 OF 2013 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO 66 OF 2012)

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REASONS FOR DETERMINATION

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Mr Justice Tang PJ:

1. Robert Peter Kissel was killed on 2 November 2003 sometime after 6 pm in the master bedroom of his home at Parkview.  His wife, the applicant,Nancy Kissel admitted to killing him.  The deceased was wrapped in a blanket by the applicant who caused the body to be removed to a store room.  The body was not discovered by the police until the early hours of 7 November 2003.  After the killing, the applicant attempted to clean up the master bedroom and bought new bedding to replace what must have been the heavily blood stained items.

2. She was charged with murder and was convicted in September 2005.  That conviction was quashed by this Court on 11 February 2010 because the prosecution was permitted to cross-examine her on her claim during the pre-trial bail proceedings that she had no psychiatric problems in order to undermine her credibility and her defence of diminished responsibility and the claim of memory loss, as well as the admission of hearsay evidence from two witnesses that the deceased had said that he suspected the applicant was trying to kill him by poisoning his whisky. This court ordered a re-trial because it was in the interests of justice that there should be a retrial.[1]

3. After the applicant was charged with the murder of her husband on a fresh indictment,she applied to Mr Justice Macrae J (as he then was) for a permanent stay of proceedings on the basis that: pre-trial publicity had rendered a fairtrial impossible; and that even if a fair trial might be possible, it would be an affront to the public conscience and/or oppressive to permit the prosecution to proceed as the question of retrial only arose because of prosecutorial misconduct, and because her mental health prevented her from participating effectively in any retrial. After a full examination of the relevant principles, Macrae J dismissed the application.[2]

4. The retrial, which lasted over 40 days, then took place before Macrae J and a jury of nine persons in early 2011.  The jury returned anunanimous verdict of guilty.

5. The applicant applied for leave to appeal to the Court of Appeal against her conviction as well as Macrae J’s earlier decision not to stay the retrial.  The hearing took 2 days and the appeal was dismissed on 3 December 2013.[3]

6. Thereafter, the applicant applied to the Court of Appeal for a certificate under s 32(2) of the Hong Kong Court of Final Appeal Ordinance Cap 484 that the following 3 points of law of great and general importance were involved in their decision: 

“Question 1

 On a charge of murder, where (a) the Defendant pleads guilty to manslaughter on grounds of diminished responsibility but such plea is rejected by the Prosecution; (b) the Defence calls expert evidence from a number of medical experts which unanimously support the Defendant’s plea of diminished responsibility; (c) the Prosecution does not challenge the appropriateness or admissibility of calling expert evidence to establish the relevant mental disorder; (d) the Prosecution does not challenge the expertise of the Defence experts; and (e) the Prosecution does not call any expert evidence to contradict or rebut the Defence expert evidence, whether the trial Judge is under a duty to give special directions to the jury as to the importance of expert evidence and the need to proceed with great caution before rejecting it. In particular, whether the Judge should give the jury directions that:-

(1) mental abnormality is a matter on which psychiatrists are particularly qualified to speak;

(2) the absence of any prosecution expert rebuttal evidence is a relevant and/or significant factor for the jury’s consideration on the issue of diminished responsibility;

(3) they should be cautious before rejecting the unanimous medical evidence that the Defendant did suffer from the relevant mental disorder at the relevant time;

(4) they should not take an unduly skeptical approach towards the defence of diminished responsibility, even though there appears to be a component of rationality in the conduct of the Defendant; and

(5) it is relevant that the expert evidence does not depend solely on factual assertions made by the Defendant.

Question 2

 In the circumstances described in Question 1 above, whether:-

(1) the Prosecution is entitled to put forward a positive case and/or positively assert that “the defendant was not suffering from clinical depression at the time of the killing”; or that she “was not suffering from any clinical illness”; or exclude the existence of mental disorder without calling any expert evidence to support such assertions; and

(2) the Prosecution is permitted to invite the jury to take a layman’s approach and to reach a positive finding or conclusion that the Defendant was not suffering from mental illness.

Question 3

 In the circumstances described in Question 1 above, and where the Prosecution has in its possession a psychiatric expert report (commissioned by the Prosecution itself) which supports the existence of mental disorder at the time of the killing but that expert is not called as a witness by the Prosecution, whether:-

(1) the Prosecution has a duty to disclose to the jury the fact that the Defendant was examined by a psychiatrist instructed by the Prosecution, who concluded that the Defendant did suffer from mental problem at the time and he wrote a report confirming to and stating that opinion, before inviting the jury to reject the defence case of diminished responsibility; and

(2) whether the Defence experts are entitled to refer to the fact that such a report exists and supports their views as to the presence of mental disorder at the relevant time;

(3) Or alternatively whether Defence counsel are themselves entitled to refer to the fact that such report exists and supports the presence of mental disorder at the relevant time.”

7. The Court of Appeal dismissed the application.  They took the view that the issues raised in these questions are fact sensitive and are not points of great and general importance. 

8. In the meantime, by a notice dated 27 December 2013,the applicant applied to this court for leave to appeal relying on the same supposed points of great general importance, and on the ground of substantial and grave injustice. 

9. The questions are long and contentious.  They mainlyconcern the defence of diminished responsibility.  One complaint is that because the applicant had adduced expert evidence in support of the defence of diminished responsibility, and the prosecution had called no expert evidence to contradict or rebut the defence expert evidence, the judge was under a duty to give special directions to the jury as to the importance of expert evidence and the need to proceed with great caution before rejecting it.  But what directions are required depends on the circumstances of the case and no point of great general importance is involved.  Although the expertise of the defence expert witnesses was not challenged and they had the requisite qualifications and experience, the reliability and correctness of their opinions were hotly disputed.  The prosecution case was that two of the defence medical witnesses had been duped by the applicant into providing her with sleeping drugs (four such drugs(including a notorious date-rape drug, (Rohypnol)) had been used by the applicant to drug the deceased on the day he was killed).  Indeed, the prosecution asserted, as they were entitled to assert, thatthe reliability of the defence experts’ opinion that the applicant suffered from “battered wife syndrome” or depression, depended on the reliability of her assertion that the deceased was a violent man who drank heavily and abused cocaine.  That applies also to her claim that she had twice attempted suicide.  Apart from the evidence of the applicant,there was no meaningful support for such allegations.

10. Another complaint is that because the prosecution called no expert evidence, it was not entitled to put forward a positive case that the applicant was not suffering from diminished responsibility.  The applicant bore the burden of proof on diminished responsibility.  It was not for the prosecution to prove the contrary. As the judge said in the summing up:

“The prosecution say that this was a cold-blooded and premeditated killing in which the defendant planned to kill her husband and which was followed in the next few days by a determined and conscious attempt to conceal the crime. By her conduct before, during and after the killing, they say that she fully intended to kill her husband and was fully aware of what she had done. Accordingly, they ask you to find her guilty of murder.”

11. On the facts of this case, the prosecution was perfectly entitled to advance the case that the applicant was a cold-blooded murderess. The verdict shows that the jury agreed.  

12. A further point about expert evidence sought to be raised inthese questions relates to the fact that the applicant had been examined by an expert (Dr Lui)on behalf of the prosecution and that Dr Lui had expressed an opinion similar to those expressed by the defence experts.  But as the Court of Appeal has pointed out:

“153. Dr Lui’s opinion, as expressed in his report, was ambiguous and speculative and there was no clear basis upon which he formed his own opinion. Dr Lui’s assessment of the applicant’s condition was based on what she had told him, including her allegations that she had been subjected to years of physical and sexual abuse and that the deceased was trying to attack her with a baseball bat after he had attempted to have anal sex against her wish. Dr Lui’s reportalso referred to the applicant’s allegations that the deceased ‘drank heavily, 3 to 6 glasses of Scotch every night’, and that ‘healso used cocaine, even in Hong Kong’”.

13. We see no basis to fault the prosecution’s decision not to call Dr Lui.  This is not a case where the defence wanted to call Dr Lui but was unable to do so.  

14. Another related point is that the judge refused to allow a defence expert, Dr Wong, to repeat in his evidence what Dr Lui had said in his report.  Nor was the defence allowed to rely on Dr Lui’s report or its content without calling him as a witness.  We agree with the Court of Appeal that the judge was plainly right.[4]  

15. We agree with the Court of Appeal that the supposed questions of great and general importance are fact sensitive and do not arise in the present case.

16. The substantial and grave injustice ground depended essentially on the same points.  The only free standing point is the so-called fundamental flawin the prosecution case.

17. One of the defences at trial was provocation.  The applicant’s evidence was that the deceased had verbally abused her, threatened her with a baseball bat as well as tried to force anal sex on her. Her case was that she struck the deceased whilst he was on the floor.  The prosecution case was that the deceased was killed when he was lying prone on the bed whilst incapacitated or his consciousness was impaired by a concoction of drugs secretly mixed into a milkshake by the applicant which he drank at about 3:45 pm on the day of the killing.  The forensic evidence was that there were 5 fatal blows to the head,concentrated in a relatively small area.  According to the prosecution, the location of those blows and the absence of any defence injuries to the deceased’s arms or hands suggested that the deceased’s consciousness was either impaired or he was possibly even unconscious when he was killed.  The blood stain on his T-shirt was consistent with the attack occurring at the time he was lying in a prone position.  However, the prosecution forensic expert agreed in cross-examination that on the available evidence, the deceased was probably lying prone on the floor.  This is said to be the fundamental flaw in the prosecution case, and that the defence of provocation had not been negated. The significance of such evidence is pre-eminently for the jury. They returned an unanimous verdict of guilty of murder.  The verdict was perfectly open to them. 

18. Lastly, Mr Fitzgerald QC repeated the submission that the re-trial ought to have been stayed.  The submission has been fully dealt with by the judge and the Court of Appeal.  For the reasons given by them, we are satisfied that the interests of justice required a re-trial.

19. For the above reasons, at the conclusion of the hearing on 24 April 2014 we refused leave to appeal.