NANCY ANN KISSEL v. HKSAR

FACC No. 2 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

FINAL APPEAL NO. 2 OF 2009 (CRIMINAL)

(ON APPEAL FROM CACC No. 414 of 2005)

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J U D G M E N T

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Chief Justice Li, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ:

Introduction

1.  After a very lengthy trial, involving complex and conflicting evidence, before Lunn J and the jury, the appellant, Nancy Kissel, was convicted on 1 September 2005 of the murder of her husband on 2 November 2003 and sentenced to life imprisonment.

2.  The prosecution case was that the appellant killed the deceased in what amounted to a premeditated murder by smashing his skull by five separate blows delivered to the upper right side of his head, with a heavy metal ornament weighing 3.7 kg, any one of which might have been fatal as the fractured skull bone was driven through his brain.  The ornament consisted of two figurines and a baseplate held together by nails.  The prosecution alleged that, at the time when these blows were delivered from above, the deceased was either unconscious or sufficiently impaired by a cocktail of drugs, traces of which were found in his stomach fluid and liver in the autopsy, that he could not defend himself.  Four of the drugs had been prescribed for the appellant in the period of ten days prior to the deceased’s death.  The four drugs were sedatives and had sleep-inducing properties. 

3.  The prosecution alleged that the deceased was tricked by the appellant, on the afternoon of the day of his death, into consuming the cocktail of drugs disguised as a milkshake, which she had prepared.  Mr Andrew Tanzer (“Mr Tanzer”), a neighbour at Parkview, also consumed a milkshake prepared by the appellant at the same time.  There was evidence that, following their consumption of the milkshakes, both the deceased and Mr Tanzer were sleepy, tired and disoriented.

4.  The prosecution also alleged that the deceased was lying prone either on the bed or in the master bedroom when he was attacked.  He was then clad in his sleeping attire, a T-shirt and boxer shorts.  The T-shirt was heavily blood-stained on the left front but not on the back when examined by the forensic pathologist.

5.  Although the appellant accepted that she killed the deceased, she pleaded not guilty, raising by way of defence, self-defence, provocation and diminished responsibility.  She abandoned the diminished responsibility defence after she had been cross-examined at the trial.  The issue of provocation was left to the jury, despite objection by the appellant’s counsel, Mr Alexander King SC.

6.  Before the trial, the prosecution relied on very strong circumstantial evidence that the appellant had killed the deceased, there being no direct evidence at that time of the fact.  At the trial, however, it emerged, at the beginning of the appellant’s cross-examination, that there was no dispute that she had killed the deceased, with the result that the principal issues for the jury were ultimately self-defence and provocation.

7.  The defence case was that the appellant killed the deceased after a violent argument which took place in the family home, the Parkview apartment in Hong Kong.  The appellant gave evidence that the argument began when the deceased informed the appellant that he had filed for divorce and he “was taking the kids”.  She said that he stated that she was not fit to take care of the children – there were three young children of the marriage – and was sick.  After further argument she noticed that the deceased was leaning on a baseball bat, which he then moved from one hand to the other, so she picked up the metal ornamental statue from a table in the hallway.  The deceased then began to assault her, pulled her into the bedroom and attempted to have anal sex with her.  She resisted him and hit him on the head with the ornament causing his head to bleed.  He was then sitting by the closet.  After refusing her offer to help him up, he then threatened to kill her and came at her, hitting her with the baseball bat.  She defended herself by holding the ornament in front of her face.  Although she had no recollection of the cause of the five fatal lacerations to the deceased’s head, she accepted that she killed him with the ornament in defending herself.  The deceased was well-built, athletic, about 40 years of age, 180 cm tall and weighing 69 kg.  The appellant, of like age, was of relatively slight build.

8.  The appellant’s inability to recall the blows that killed the deceased was, she said, caused by memory loss which affected her recollection of events on that day and for some time thereafter.

9.  The appellant’s appeal against her conviction was unanimously dismissed by the Court of Appeal (Stuart-Moore VP, Stock JA and Wright J).  The appellant now appeals to this Court, pursuant to the grant of leave by the Appeal Committee.  The Court certified that the following question raises a point of law of great and general importance: 

“ Whether the prosecution is entitled at trial to cross-examine a defendant by reference to materials relied on by such defendant on bail application(s), such as affidavits, medical reports, and counsel submissions and if so, to what extent, and for what purpose.”

10.  The Court restricted leave to appeal to three grounds of appeal.  They are:

“(1)   Ground 1 (Cross-examination on Matters Pertaining to Bail Applications), on the abovementioned point of law and on the ground that it is reasonably arguable that substantial and grave injustice has been done;

(2) Ground 2 (Hearsay Evidence), on the ground that it is reasonably arguable that substantial and grave injustice has been done; and

(3) Ground 3 (Erroneous Direction on Self-Defence), on the ground that it is reasonably arguable that substantial and grave injustice has been done.”

11.  The prosecution contends that, in the event that any of the grounds of appeal are made out, nonetheless the appeal should be dismissed on the ground that there was no miscarriage of justice within the meaning of the proviso to section 83(1) of the Criminal Procedure Ordinance.[1]

The marriage and its breakdown

12.  In order to understand how the issues were dealt with at the trial and the setting in which the questions now sought to be argued arise, it is necessary to give an account of the marriage and its breakdown, the events leading up to the deceased’s death and the events immediately following his death.

13.  The appellant married the deceased in 1989.  They lived in the United States until 1998 when the deceased accepted a position with Goldman Sachs in Hong Kong.  In 2000, he joined Merrill Lynch on an annual income of US$175,000 with commissions and bonuses, which amounted to US$5.25m in the three years before his death in 2003.  His work often involved overseas travel.  According to his second in command and friend, Mr David Noh (“Mr Noh”), he was “extremely professional”, got along with everyone and was a “social drinker”. 

14.  The appellant was the source of most of the direct evidence as to the marriage and its breakdown.  According to her account, the marriage relationship progressively deteriorated in the five years before the death of the deceased due to his excessive drinking, cocaine abuse, violence and increasing demands for anal sex to which she objected, as well as for oral sex.  The prosecution, however, relied on other evidence which showed that the deceased had a pleasant character and personality and was a loving father.  Witnesses said that he was not a violent man and did not drink to excess or use cocaine.  The prosecution pointed also to the absence of independent or medical evidence to support her evidence that she had sustained physical injuries as a result of the deceased’s violence and bleeding from her anus as a result of forced anal sex.  The appellant’s friends testified that they saw injuries or bruises on occasions but they did not identify what caused them.

15.  The appellant described the deceased as becoming more forceful in his sexual demands as time passed, demands which, when they moved to Hong Kong in 2000, included anal and oral sex.  She described a pattern of increasing violence in which he overpowered her so that he could have anal sex, sometimes after he had taken cocaine or alcohol, or both.  He and his brother were taking cocaine, she said, at the time of her marriage, a claim which was denied by others.

16.  According to the appellant, the pattern of violence began as early as September 1999.  In one incident in 2001, she said that he had broken one of her ribs as she resisted his attempted to have anal sex.  When she was given a brace for the injury at the Adventist Hospital, he had ripped it off, causing a fresh injury.  On each occasion she said she made up a story to conceal the real cause of the injury.

17.  By the end of 2002, the marriage relationship had seriously deteriorated.  A family skiing holiday at Whistler, at Christmas 2002, involved a number of unhappy incidents culminating, the appellant said, in one incident in which she was hit across the mouth and fell down a flight of stairs.  On their return to Hong Kong, they discussed marriage counselling, but no action was then taken.

18.  Mr Noh gave evidence that the deceased had disclosed to him that there were problems with the marriage and that the deceased had engaged a private investigator to watch the appellant when she was staying at their house in Vermont between 29 March and 30 July 2003.  Mr Noh said that he had also been told by the deceased that he had installed spyware to monitor the appellant’s computer.  A computer expert, Constable Cheung Chun-kit, gave evidence that the spyware was installed on or about 31 January 2003.

19.  When the appellant and her three children went to Vermont in 2003, she said that, when the deceased joined the family in Vermont in May 2003, she and the deceased argued almost every day.  He was using cocaine and was having huge mood swings.  He was also using a lot of sleeping pills.  Because of the “pretty intense” sexual activity, including anal and oral sex, she crushed an “Ambien” sleeping pill and put it in his scotch whisky bottle “thinking it would calm him down”.  She did not notice that it had any effect.  She also said that she had crushed a pill and put it in the whisky bottle in Hong Kong, but noticed that the crushed pill was visible in the bottle and threw the contents away.  The trial judge correctly instructed the jury there was no evidence of poisoning whisky in Hong Kong. 

20.  On his return to Hong Kong, the deceased telephoned Mr Frank Shea (“Mr Shea”) in New York and instructed him to conduct surveillance of the appellant who was still in Vermont and to take note of Mr Michael del Priore (“Mr del Priore”), an electrician, with whom the deceased believed she was having an affair.  Mr del Priore was visiting the Vermont house in connection with “high-end” television and audio equipment which was being installed there. 

21.  Mr Rocco Gatta, who carried out the surveillance, reported his observations along with video footage to the deceased.  The details of his report are not material as, in cross-examination, the appellant acknowledged that she had sexual intercourse with Mr del Priore on “three-ish” occasions.

22.  That the appellant had a close and intimate relationship with Mr del Priore is evident from the terms of e-mails which she sent to him from both Vermont and on her return to Hong Kong where she arrived on 31 July 2003.  The deceased knew of the closeness of that relationship from copies of the e-mails accessed through the spyware equipment and found in his office after his death.  The deceased informed the appellant of his knowledge while she was still in Vermont and asked her to return to Hong Kong.

23.  While the appellant complained of the way in which the deceased treated her, he complained of her aloof and distant attitude to him.  In an e-mail sent to her in Vermont from Hong Kong before his second visit to Vermont when she was still there, he acknowledged their tense relationship and urged her not to inflict emotional pain on him and expressed his love for her.

24.  On 29 July 2003 and thereafter, the deceased sought advice from Hampton Winter and Glynn, solicitors, about divorce proceedings.  He stated that he believed that his wife had formed a relationship with a man in Vermont and he wanted to maintain contact with his children, particularly at weekends.  On 31 October 2003, two days before his death, the deceased told Mr Robin Egerton (“Mr Egerton”), a partner of the firm of solicitors, that he would discuss with his wife their future matrimonial arrangements.

25.  In the meantime, on 20 August 2003, the appellant made an internet search on her computer, again captured by a spyware report, a copy of which was found in the deceased’s office.  The report revealed a search for “sleeping pills overdose on sleeping pills medications causing heart attacks drug overdose”.  In evidence, the appellant said that she made the search because she was contemplating suicide and to protect the children from a realization that this is what she had done, she was looking for a means of concealing this.  By this time the appellant seems to have realized that the deceased had suspicions about her because in a diary entry on 21 August 2003 she acknowledged that he would never trust her again.  She said in evidence that she was so depressed that she attempted suicide on two occasions, once at Vermont in May 2003 and later in Hong Kong on 29 August 2003.  There was no independent evidence of the two suicide attempts.  And she told her psychiatrist, Dr Wong Chung-kwong (“Dr Wong”), that she had not attempted to commit suicide.

26.  In August and September 2003, the appellant and the deceased consulted a marriage counsellor, Ms Ceilidh Halloran (“Ms Halloran”).  The consultations ended in a violent argument, according to the appellant.  It was evident by this time that the marriage was dysfunctional.

Events preceding the deceased’s death

27.  On 29 August 2003, the appellant obtained 10 tablets of “Stilnox” (marketed in the United States as Ambien) from the clinic of Dr Desmond Fung (“Dr Fung”) in Central.  On 30 October 2003, she obtained from the clinic 10 tablets of Stilnox, 20 tablets of Amitriptyline and 15 tablets of Lorivan.  In the meantime, on 23 October, she obtained 10 tablets of Rohypnol from the clinic of Dr Annabelle Dytham (“Dr Dytham”) in Wanchai.  On the same day, she found a website through a Google computer search for Rohypnol which stated that it had similar effects to alcohol as it could “reduce inhibitions, impair judgment and cause the victim to become unconscious” and, as well, that it “can produce amnesia”.  In evidence, the appellant said she took these pills in an attempt at suicide but changed her mind and made herself throw up. 

28.  A pharmacologist, Professor John Yeung Hok-keung, called by the prosecution, described all four drugs as having sedative or sleep-inducing properties.  Traces of all four drugs were found on analysis of the deceased’s stomach contents after a post mortem.

29.  According to the evidence of both Dr Fung and Dr Dytham, the appellant disclosed to neither her visits to the other, nor did she disclose that she had obtained medication for the same professed complaint of sleeplessness.

30.  After the appellant’s first visit to Dr Fung’s clinic on 29 August 2003, the deceased telephoned Mr Shea and said that he was concerned that his wife was trying to kill him by poisoning him.  He had drunk some scotch whisky from the decanter at home and felt “woozy and very disoriented”.  Although the appellant admitted putting sedatives in his whisky at Vermont, she denied doing so in Hong Kong, apart from one incident already mentioned.  In the history she gave to Dr Fung she could not recall for how long she continued putting sedatives in the deceased’s whisky after the episode in Vermont.  The reception in evidence of the deceased’s statement to Mr Shea and of statements made by him to Ms Bryna O’Shea (“Ms O’Shea”), referred to below, are the subject of the second ground of appeal.

31.  The events which led to the deceased’s death began when Mr  Tanzer brought his daughter Leah to play with the Kissels’ daughter June at the Kissel’s apartment that afternoon.  Mr Tanzer took Leah there at about 2:45 pm.  He and the deceased conversed in the living room for about 45 minutes while the children played elsewhere.  As Mr Tanzer was about to leave, June Kissel asked him to stay for a drink.  She returned with two tall glasses filled with a milkshake.  Mr Tanzer described them as having a reddish colour and as tasting quite sweet, with a banana flavour.  He finished the milkshake and thought that the taste was strange.  As he was leaving, he asked the appellant “What was in that milkshake?”  She replied that it was a “secret recipe”.

32.  Mr Tanzer went straight home.  Although he had not had any alcohol to drink that day, he found that for most of the rest of the day he either blacked out or was semi-conscious or asleep.  The next morning he felt “quite disoriented”, unable to recall much of what happened after 4 pm the previous day.  He described it “as a little bit like amnesia”, an experience which he had not previously encountered.  His family noticed his unusual appearance and condition.

33.  At 4:51 pm the deceased made a telephone call to Mr Noh.  The call lasted for ten minutes.  Mr Noh said that the deceased was talking on a different tangent and kept saying how tired he was feeling.  The answers which the deceased gave seemed bizarre; he seemed “very mellow” and his speech was slurred.  The deceased did, however, mention that he would later be discussing the issue of divorce with the appellant.  Later that evening, the deceased did not participate in an important telephone conference call between Merrill Lynch personnel, in which he was scheduled to participate, which was arranged for that evening. 

34.  The deceased, who had been in the children’s playground with his son Reis, returned to the apartment at 5:15 pm, following a request to do so by the appellant, conveyed to him by Maximina Macaraeg, known as “Min”, one of the two domestic helpers.  When Min and the children returned to the apartment at 6:15 pm, the appellant asked Min to tell the children not to make a noise as “their Daddy was sleeping”.  In the meantime, between 5:15 pm and 6:15 pm, the appellant and the deceased were alone in the apartment.  It appears that the deceased was killed at that time when, according to expert evidence, the drugs which, it is alleged, he consumed would have been at peak concentration. 

35.  Although, in paragraph 7 above, there is a short account of the violent argument which led to the deceased’s death, it will be necessary later to set out in detail what the appellant said in evidence about the incident.  Her evidence is the only direct evidence of what then happened and it was critical to the defences of self-defence and provocation, in particular to the third ground of appeal which relates to the trial judge’s direction on self-defence.

Events following the death of the deceased

36.  In the days which immediately followed the deceased’s death on 2 November, the appellant engaged in a series of activities which were calculated, if successful, to conceal the deceased’s death.  She arranged for the purchase of items including bleach, carpets, furniture, cushions, towels, cardboard boxes, adhesive tape, bedding materials and peppermint oil.  When discovered in the Kissel’s storeroom in Parkview on 6 November 2003, the deceased’s body was found in a sleeping bag with towels inside a rolled-up carpet over which was placed plastic sheeting secured by rope and masking tape, with four cushions placed on top and held together by adhesive tape, along with items of furniture.  The appellant had arranged for the Parkview staff to carry the rolled up carpet, containing the deceased’s body from the living room of the apartment to the storeroom elsewhere in the building, evidently having herself moved the body from the master bedroom to the living room, a distance of 25 metres.  Also placed in the storeroom were a wooden cabinet, two chairs taken from the master bedroom, the deceased’s golf clubs and some cardboard boxes.

37.  The appellant had previously arranged for the storeroom to be cleared of its earlier contents after she had discovered, in response to her inquiry, that there was no additional storeroom available for rent.  The new bedding materials replaced those which were bloodstained while one new carpet was used to replace a bloodstained carpet in the bedroom.  Some bloodstained items were discovered later in the children’s bedroom.

38.  The appellant also concealed the deceased’s death by saying to others, even to the police and her own father, that the deceased had left after a violent argument.  In these statements she conveyed to others that he was alive but she was unaware of his whereabouts.  She said to the police that she had left messages for him.  The prosecution relied on all these aspects of concealment of the deceased’s death as evidence of consciousness of guilt.

39.  Another aspect of the appellant’s conduct in the days following the deceased’s death was her complaint of pain and injuries which she said that she had sustained in the violent argument on 2 November 2003.  For the purposes of this appeal, it is unnecessary to dwell on the extensive evidence which related to this issue.  The medical evidence contradicted her claim that an injury to her hand was a burn caused by the oven toaster.  Dr Iris Li (“Dr Li”), who examined the appellant at Ruttonjee Hospital on 7 November 2003 and found bruises on her hands, arms and elbows, concluded that the bruising could be 2 to 3 days old but was unlikely to be 4 to 6 days old.

40.  Dr Dytham, with whom the appellant obtained an appointment on 4 November 2003, considered that the appellant was exaggerating the pain of which she complained.  Dr Dytham noticed, as did Dr Li, puncture wounds on the inner creases of her right hand (which could have been caused by the nails that held the figurines to the baseplate of the ornament before they were detached in the episode that resulted in the deceased’s death) and what were possibly carpet burns to both knees (which could have been caused by dragging the deceased’s body from the master bedroom to the living room).

41.  The appellant said to Dr Dytham that the puncture marks may have been caused by her holding a fork the wrong way round when she was defending herself during the violent argument.  At no time did the appellant mention to Dr Dytham that the deceased used a baseball bat; the appellant told Dr Dytham that the deceased used his fist and feet.  According to Dr Dytham, no area of the appellant’s injuries implied serious forceful blows.  Although the appellant complained to Dr Dytham and others of fractured ribs and fingers, X-rays revealed no fractures.

42.  The prosecution invited the jury to disbelieve the appellant’s account of the history of the marriage and of the critical events on the ground that aspects of her account were contradicted by her own statements to others and by the evidence of a number of witnesses.  The answers she gave to a questionnaire put to her by Dr Dytham on 26 February 2002 provide an example.  In her answers, she said that she had no physical or emotional problems with sex and that there was no bleeding after intercourse and that it was not painful.  She also told Ms O’Shea, a mutual friend of the deceased and the appellant, that they had a “wonderful sex life”.  It does not appear when that statement was made; it would have been before the marriage had deteriorated in 2002 and quite possibly earlier than that.

43.  The prosecution relied heavily on the appellant’s failure to make any mention of the baseball bat in her various references to the violent argument on 2 November 2003, when she reported to others what had happened.  Indeed, she first mentioned the baseball bat in giving her history to Dr Wong, the psychiatrist, on 28 January 2005, almost two years after the deceased’s death.  It will be recalled that, on 4 November 2003, less than 48 hours after the deceased’s death, she told Dr Dytham that the deceased used his feet and fist.

The defence case as to the appellant’s memory loss and metal meltdown

44.  In order to consider the appellant’s grounds of appeal, it is necessary to focus on the defence case at trial as to the appellant’s claimed memory loss and mental meltdown.  According to the evidence, the appellant seemed to suffer some sort of breakdown late on 6 November or early 7 November when she realized that the police were about to search the Parkview storeroom.  She was taken to the Ruttonjee Hospital where she continued to tremble over the whole of her body and was unable to speak.  In the early hours of 7 November she was arrested for murder.  She was later transferred to the custodial ward of Queen Elizabeth Hospital where she did not respond to questioning.  On or about 18 November 2003 she was taken to the Siu Lam Psychiatric Centre (“Siu Lam”) where she remained until released on bail. 

45.  When cross-examined at the trial in relation to the events of 2 November 2003 and the days which followed, the appellant answered that she had no recollection.  According to her, the loss of memory persisted for a period of six months while she was in Siu Lam when “images and pieces of things” began to come back but the overall memory loss still affected her when she gave evidence. 

46.  In response to the prosecution case that the appellant had given false accounts of what happened in the evening of 2 November 2003 and the whereabouts of the deceased thereafter in order to cover up the fact that she had killed him, Mr King SC for the appellant, in his closing address, invited the jury to find that she had suffered a mental meltdown.

47.  The only witnesses called for the defence at the trial to give medical evidence were Dr Dytham and Dr Fung.  Their evidence neither supported a defence of diminished responsibility nor went so far as to say that the appellant was suffering from amnesia or any psychiatric condition that resulted in, or contributed to, amnesia, loss of memory or mental meltdown.  Dr Fung, whom the appellant again consulted in October 2003, said she was then in a “distressed mental state” but he did not relate that condition to amnesia, loss of memory or mental meltdown.  However, in re-examination, he said that dissociative amnesia was a condition from which a person sometimes suffered after being exposed to a traumatic situation and that it involves loss of memory varying from minutes to years and that recovery from it may come back bit by bit.  Dr Wong’s conclusion that the appellant suffered from dissociative amnesia had emerged in the appellant’s cross-examination.  Dr Fung also said that he did not detect any evidence “she was making a story”.

Ground 1: Cross-examination of the appellant in relation to the bail proceedings and other matters

(a)   The report of Dr Wong

48.  The appellant was, however, cross-examined on matters that went to the contents of a report dated 12 May 2005 by Dr Wong who had interviewed the appellant on 13, 20, 28 January, 1 and 8 February 2005.  Dr Wong’s report was served on the respondent on 13 May 2005 under section 65B of the Criminal Procedure Ordinance.  And the legal representatives of the appellant informed the court and counsel for the prosecution that Dr Wong would be called as a witness.  The first indication that the prosecution received that Dr Wong would not be called was at the close of the appellant’s case.  So the appellant was cross-examined by the prosecution in the belief that Dr Wong would be called and that diminished responsibility was a live issue.

49.  In his report, which was not tendered in evidence, Dr Wong concluded that the appellant was suffering from major depressive disorder and probably dissociative amnesia on 2 November 2003.  Dr Wong also said that it was likely that she then suffered from dissociative fugue for a few days.  His view was that the dissociative amnesia probably continued for a few weeks or even longer, while she continued to suffer, as at the time of his report, from a mild degree of major depressive disorder.  Dr Wong’s conclusions were based largely on the history which she and, to a much lesser extent, her mother provided of a troubled upbringing and a dysfunctional marriage.  The appellant’s account to Dr Wong was of a husband who became violent, assaulted her, drank to excess, used cocaine and forced her to have anal sex which she disliked, as well as oral sex, a marriage which culminated in the violent argument on 2 November 2003 and resulted in the deceased’s death.

50.  The prosecution therefore cross-examined the appellant with a view to destroying the factual basis on which Dr Wong’s report was based.  And it is, and was, the prosecution’s case at trial, that the factual basis for Dr Wong’s opinion founded on what the appellant told him was severely damaged, if not destroyed, by the cross-examination of the appellant and other evidence. 

51.  The cross-examination of the appellant on the bail proceedings, which is the subject of the first ground of appeal was designed (a) to undermine the defence of diminished responsibility and the claim of memory loss by establishing that the appellant’s case in the bail proceedings was that she had no psychiatric problems; and (b) to suggest that the appellant was not a credible witness by reference to the inconsistency between the case presented in those proceedings and the case to be presented at trial.  The use at trial of the materials in the bail proceedings was relied on in the cross-examination to show that in those proceedings the appellant had put herself forward as a person with no psychiatric problems.

(b)   The report of Dr Yuen

52.  Dr Henry Yuen Cheung-hang (“Dr Yuen”) was another psychiatrist.  He treated the appellant while she was in Siu Lam.  His report dated 24 May 2005, with the consent of the appellant, was received by the judge, but not by the jury.  Dr Yuen said that he regarded the appellant as “mentally stable”, a view which was consistent with his earlier report dated 3 November 2004 when he said she was “mentally fit to be released”.

(c)   The documents comprised in this ground of appeal

53.  The two applications for bail were heard on 1 November 2004 (Burrell J) and 19 May 2005 (Lunn J, the trial judge) and were granted.  The hearing before Lunn J was after arraignment shortly before the commencement of the trial and related to the continuation of the appellant’s bail.  The appellant was represented by Mr John Griffith SC instructed by Mr Simon Clarke (“Mr Clarke”) of Mallesons Stephen Jaques.  The documents which are the subject of this ground of appeal and featured in the cross-examination of the appellant at the trial fell into six categories.  They are:

(a)  the transcript of the representations by Mr Griffiths SC to Burrell J;

(b) affirmations by the appellant’s solicitor Mr Clarke;

(c) the exhibits to those affirmations, including medical records from 18 November 2003 to 3 July 2004 of the appellant by persons at Siu Lam where the appellant had been a patient following her arrest until she was released on bail;

(d) affirmations/affidavits of the appellant’s three sureties;

(e)  Dr Yuen’s reports of 3 November 2004 and 24 May 2005, together with correspondence between the appellant’s solicitors and the Department of Justice; and

(f)   the opinions (as distinct from the appellant’s history as related by her) in the report of Dr Wong.

The interpretation of the bail provisions of the Criminal Procedure Ordinance

54.  Mr McCoy SC, for the appellant, submits, first that the cross-examination of the appellant on the bail materials contravened the bail provisions of the Criminal Procedure Ordinance (Cap 221).[2]  Mr McCoy SC’s primary submission is that the relevant provisions of the Ordinance prohibit the use at trial of related bail proceedings.  This submission must be rejected.

55.  The relevant prohibition is that contained in section 9N(b) which deals with “Bail applications”.  It is in these terms:

“In any bail proceedings –

… (b) the person being the subject of these proceedings shall not be examined or cross-examined by the court or by any person as to the alleged offence with which he is charged and no inquiry shall be made of him as to that offence alleged.”

Two points need to be made about this provision.  First, its operation is limited to bail proceedings.  It does not speak directly to the trial itself.  Secondly, the prohibition is only against oral examination and cross-examination of the applicant for bail “as to the alleged offence”.  The statement by McGarvie J in R v Sanghera,[3] in relation to a decision whether to grant bail, that:

“The evidence given to enable the judge to make such decisions, of course, never goes before the jury.”

finds no support in section 9N(b) and its related provisions.  In what was an ex tempore judgment, his Honour did not explain the basis of his comment.

56.  There is nothing in the statutory context of section 9N itself or in the related provisions in the Ordinance, in particular sections 9G and 9O, to support the view that there is to be implied in section 9N, or its related provisions, a general prohibition against the use at trial of materials in bail proceedings extending beyond the express prohibition in section 9N(b).  Nor does the legislative history, in particular the Law Reform Commission Report on “Bail in Criminal Proceedings”, support the implication of such an extended prohibition.  The express prohibition, along with the effect of contravention on the admissibility of evidence at the trial, serves the purpose of protecting an accused from making statements in oral evidence in bail proceedings which can be used against him at trial.

57.  Under section 9N(a) the court is given, subject to section 9N(b), a wide power to make such inquiries of and concerning the applicant for bail as it considers desirable, while, under section 9N(d), the court can take into consideration matters agreed upon by the parties and, under section 9N(e), the court can take into account:

“any other material or representations which it considers credible or trustworthy in the circumstances.”

These provisions enable the court to have regard to materials, whether or not they constitute admissible evidence, and enable both applicant and prosecutor to present informal materials to the court.  It does not follow, either from this or from section 9N(c), which authorizes the prosecution to submit evidence on specified matters, “in addition to any other relevant evidence”, that the parties or either of them are prohibited on the bail application from adducing admissible evidence, subject to section 9N(b).  Such a bizarre interpretation, which seeks to read “other material” in section 9N(e) as “material not being admissible evidence”, cannot be sustained.

58.  It is our view that evidence led at a bail hearing in breach of section 9N(b), having been illegally given or obtained, would not be admissible at the trial.  This view is supported by R v Paonessa and Paquette,[4] a decision of the Ontario Court of Appeal, affirmed by the Supreme Court of Canada.[5] It was a decision on section 457 of the Canadian Criminal Code which was then expressed in terms similar to section 9N(b).  The decision does not, however, support the total immunity of bail proceedings for which the appellant contends.  Our view that evidence which contravenes section 9N(b) is inadmissible in the subsequent trial will protect an accused person and assist in achieving an important purpose of the provisions, namely that of enabling an applicant to present his bail application fully without being exposed to the risk of giving oral evidence which will be used against him at trial.  In passing we should mention, though it has no consequences for the present case, that the expression “as to the alleged offence” includes defences to, as well as the elements of, the alleged offence.

(d)   The bail proceedings

59.  The appellant and her legal representatives in the bail proceedings sought to make the case that she was not then suffering from any psychiatric problems.  This was a matter of concern to Burrell J who thought that her stay in Siu Lam might be indicative of the existence of a psychiatric disability which might be a reason for refusing bail.  The material put before Burrell J on behalf of the appellant was designed to negate this possibility.  Nonetheless the judge required a report from Dr Yuen who was treating the appellant at Siu Lam.  It was that report dated 3 November 2004, in which he stated she was “mentally stable” and fit to be released on bail.  She continued to see Dr Yuen as a condition of her bail and that led to his later report dated 24 May 2005 that she was “mentally stable”.

60.  Mr Clarke, in his first affirmation of 26 October 2004, said that he was the solicitor for the appellant and was “duly authorized to make this affirmation on her behalf”.  He said that the defences of self-defence, provocation and diminished responsibility were available to the appellant on the basis of a very brief summary of her case.  Mr Clarke did not express any opinion at all as to the appellant’s normality or her fitness to be released on bail.  One notation in the extensive hospital records exhibited to the affirmation was “no [history] of psychiatric disease”.  It was made on 7 November 2003, presumably within hours of the appellant’s admission to the Ruttonjee Hospital after her arrest.  It was no more than an historical record, not an expression of opinion, by an unidentified staff member.  There was no evidence of the circumstances in which the notation came to be entered in the hospital records.  It therefore had no probative value. 

61.  Mr Clarke’s second affirmation dated 29 October 2004 began with a similar recital of his authority to act for the appellant.  The affidavit exhibited the admission record page and the last record page up to 3 July 2004 provided by the Centre.  Mr Clarke said that there was no suggestion in these documents “of any psychiatric problem”, as indeed was the fact.  Again, Mr Clarke expressed no opinion himself as to the appellant’s condition.

62.  There were affidavits/affirmations from the three sureties who knew the appellant.  None of them ventured an expression of opinion as to the appellant’s mental condition though they did say that she appeared to be normal.

63.  The cross-examination of the appellant at the trial was not based so much on the contents of the affidavits/affirmations of Mr Clarke and the sureties, as there was little of any consequence in them, as on the submissions or representations made by Mr Griffiths SC on the bail application.  He is recorded as saying in the transcript of the bail application on 1 November 2004:

“My Lord, as you will have seen from the affidavit, she has been visited by three of the ladies who are sitting here in court today and others, and there is no question of any psychiatric problem.  They all say she is perfectly normal and the woman she was before this, save for some emotional liability…

My Lord, my instructing solicitor, who is very experienced in these cases, Mr Clarke, has been to Siu Lam very frequently, has dealt with a lot of cases where they have been psychiatric problems, is also of the opinion that there is no psychiatric element present in the case.”

A little later, Mr Griffiths SC said:

“… she’s visited monthly by a psychiatrist.  There have been no suggestions from him … that she’s in any need of help.”

Subsequently, he spoke of :

“heat of the moment diminished responsibility, not a psychiatric illness because all the medical reports confirm she has no psychiatric history.  Those who have seen her after the first couple of weeks or so say that she’s acting, behaving and sounding perfectly normal.”

After referring to a report of 18 November 2003 in an exhibit to Mr Clarke’s second affirmation which attributed to the appellant a denial of “suicidal idea”, Mr Griffiths SC said:

“the psychiatric reports both then and now indicate someone who is in a stable condition.”

64.  The basis for the making of these statements to the extent to which they went beyond the material in the affirmations is by no means clear.  They either proceeded from instructions given to counsel or reflected an advocate’s flourish, or perhaps a combination of the two.  There was no evidence on the point. 

65.  A point to be noted for later reference is that in the first passage quoted above, Mr Griffiths SC referred to some “emotional liability”.  So his representation that the appellant was “normal” was subject to that reservation.

(e)   Cross-examination of the appellant on the bail materials

66.  Prosecution counsel was entitled to cross-examine the appellant to establish that she allowed herself to be presented in the bail application as a normal person with no psychiatric problems, save for the reservation already noted, then and even in November 2003.  The trial judge was right in ruling on more than one occasion that cross-examination to this end was relevant.  So prosecution counsel was entitled to cross-examine the appellant who was present at the bail hearings, as he did, to obtain her agreement that (a) Mr Griffiths SC had made the statements which were attributed to him and have already been related; (b) they were made on her behalf; and (c) they were, so far as she was aware, true.  And, at that time, subject to one qualification, they were true because Dr Wong’s report of 12 May 2005 was not then in existence.  The one qualification was whether the claimed memory loss was a psychiatric problem relevant to the grounds for granting or refusing bail.

67.  On a related point, Mr McCoy SC submits that prosecuting counsel’s cross-examination was not a permissible mode of cross-examining a witness on documents created by a third party, when the cross-examiner is relying on an inconsistent statement in order to impeach the credit of the witness.  The cross-examination went, however, not merely to credit but also to diminished responsibility and the claim of memory loss.

68.  Mr McCoy SC also submits that the prosecution was in error in splitting its case by seeking to establish what occurred in the bail proceedings in cross-examination instead of leading evidence on that matter in its case.  It is for the prosecution to put its case fully and fairly before the accused is called upon to make his or her defence, although there can be departures from this rule to meet the infinite variety of difficulties that may arise at a criminal trial.[6]  Thus the prosecution is required to tender all available material witnesses and other evidence unless there is some good reason not to do so.[7]  If evidence is relevant in any way to prove the case for the prosecution, it is the duty of prosecution to produce it as part of its case[8] rather than to hold it back and introduce it by means of the cross-examination of the accused.[9]  To pursue the latter course is to engage in the error of splitting the prosecution case and to potentially deprive the accused of the opportunity of cross-examining witnesses who might otherwise be called.

69.  Assuming that Mr McCoy SC’s submission on this point is well-founded, as we are minded to think it is, its impact in the circumstances of the present case was of little significance.  If the prosecution had tendered the record of the bail proceedings as part of its case, the appellant would have been cross-examined on that record in any event.  She would have been confronted with the transcript of the proceedings and asked whether the statements were made on her behalf and whether she agreed with them.  And, in considering any question of possible prejudice, the point must be made that this was not a cross-examination on a statement in a document created by a third party which came as a surprise to the witness.  The cross-examination related to the transcript of proceedings before a judge at which she was present.

70.  Counsel for the prosecution by his questions emphasized the point that there was no mention of amnesia or memory loss in the materials or submissions then presented to the court.  This point was pursued persistently and vigorously despite the fact that one would ordinarily expect the appellant’s professional advisers to decide on the materials to be presented to the court in the bail proceedings.

71.  There were two passages in the appellant’s cross-examination which exhibit its character.  The first begins with an answer in which the appellant said that she had mentioned memory gaps to her three friends, the bail sureties.  Prosecution counsel then asked this question:

“So those three friends of yours were well aware of the memory gaps and problems with your mental ability to recall things, well before your bail application in November 2004, is that you are saying?”

When the appellant answered by saying:

“I don’t know what they though.”

Prosecuting counsel then said:

“Well, someone is being misled here, Mrs Kissel.”

Mr King SC then made a strong objection to that comment.  It was an entirely improper comment, designed to insinuate to the jury that the appellant and her advisers, or alternatively the three friends, had misled the court in the bail application.  That was precisely what prosecuting counsel said in the presence of the jury for argument on the objection was heard in the presence of the jury.  Yet despite the objection, the judge did not correct the comment nor direct the jury to ignore it.

72.  The second matter relates to the cross-examination of the appellant on Dr Wong’s opinion and the appellant’s knowledge of the conclusions he had reached with respect to the three medical conditions which he diagnosed.  The point of the cross-examination was to suggest that her condition, as diagnosed by Dr Wong, should have been disclosed to the court in the bail application and yet it had not been.  Dr Wong’s diagnosis was not known at the time of the first bail application before Burrell J.  It was known when the bail application came before Lunn J in May 2005.  But the focus of attention in the cross-examination was on the statements made to Burrell J.  Yet, over Mr King SC’s objection, the trial judge permitted prosecution counsel to ask the question of the appellant whether she agreed that the three psychiatric disorders Dr Wong identified were:

“in stark contrast to the observations of Mr John Griffiths, Senior Counsel, during the bail hearing.”

73.  This was an improper question because, as prosecuting counsel well knew, although Dr Wong was of the view that the appellant suffered from major depressive disorder at the time of her husband’s death and probably dissociative amnesia at that time, there was nothing at the time of the bail application to support the view that these medical conditions were known to the appellant or anyone else.  The expression “in stark contrast” was designed to emphasize the cross-examiner’s suggestion that there was a failure to disclose a material matter to Burrell J.  At no time when prosecuting counsel cross-examined on the transcript of the bail proceedings, did he draw her attention to Mr Griffiths SC’s qualification concerning “emotional liability”.

74.  The substance of the cross-examination of the appellant on the hospital and medical records is related in detail in the Court of Appeal’s judgment.  We agree with the Court of Appeal that the cross-examination was directed to showing that the appellant had not made complaints of memory loss, suicide attempts and other matters to which she had deposed, when one would have expected her to do so.  This conclusion does not, however, meet the submission that she was cross-examined, as she was, in an impermissible manner on records and reports by confronting her with their contents and putting her in a position where impliedly she was invited to explain the discrepancy between them and her testimony.  

75.  An instance of an express invitation to explain a discrepancy is to be found in her cross-examination on her statement, in relation to the November 2003 incident, that she had told Dr Yuen about her memory loss.  She had been shown Dr Yuen’s letter of 13 May 2005 in which he makes no reference to her telling him that prosecuting counsel then asked this question:

“So can you explain why Dr Yuen’s is saying in here … ‘I know very little about the case and Nancy had never told me anything relating to the alleged offence?’”

It is impermissible to ask a witness why someone else makes a statement contradicting the evidence of the witness.

76.  A witness should not be asked to explain the reasons why another person contradicts the testimony of the witness.  For one thing what the witness can say about the other person’s reasons is necessarily a matter of conjecture or speculation.  For another thing, it is not a question which the witness can readily answer.  It is an unfair means of endeavouring to persuade a witness to change his answer and it may result in the witness giving the impression that he is evasive.  The technique is a variation of the question which invites a witness to comment on the truthfulness of another witness.  As to the inadmissibility and impropriety of that technique, see R v Foley;[10] see also North Australian Territory Company v Goldsborough, Mort and Company[11]  (dealing with cross-examination on statements made by others).  Unfortunately, the practice is not uncommon but the fact that impropriety is common is no reason why it should be tolerated. 

77.  Mr McCoy SC also complained of the cross-examination of the appellant on Dr Yuen’s report of 24 May 2005.  This report was provided in relation to the continuation of bail, pursuant to the order made by Burrell J.  The first mention of Dr Yuen in the cross-examination was made after the appellant had been taxed with not having mentioned memory loss in the period she was in Siu Lam.  Her response was to say:

“I was seen by a psychiatrist in Siu Lam for many months, and in those sessions we spoke about my memory loss in great detail and I believe that this psychiatrist was to give a report on my behalf that I was not suffering from a psychiatric problem in order for my bail application to be approved he did so.”

She identified the psychiatrist as Dr Yuen.  Later in the cross-examination, prosecution counsel read to the appellant a paragraph from Dr Yuen’s report, in which he stated that the appellant was “mentally stable”, and asked her whether the paragraph was “accurate, true and correct”.  When she answered “Apart from his opinions, yes”, Mr Chapman then asked “So you disagree with his opinions”.

78.  If the prosecution wanted to rely on Dr Yuen’s views as expressed in his report, he should have been called as a witness.  In that event, he would have been open to cross-examination by the defence on what he said.  As it was, the appellant was placed in the position of being asked whether she agreed with what Dr Yuen said in his report as to her mental condition.  It was not legitimate to ask her whether she agreed with his medical opinion as distinct from any statements of fact which he attributed to her.  She could, of course, be asked about non-disclosure to Dr Yuen of material facts and about her view of her own mental health.

79.  The next aspect of the cross-examination of which Mr McCoy SC complains relates to the cross-examination of the appellant on her refusal to consent to Dr Yuen giving a report to the court relating to her mental condition in November 2003.  This cross-examination arose out of a letter dated 13 May 2005 to prosecution counsel in which Dr Yuen demurred to a proposal that he should make a report or give evidence in the trial.  His point was that, if he were to accede to the proposal, he would be placed in the position of being an expert witness as distinct from a clinician treating his patient.  After pointing out that he did not know what opinion he would have because the appellant “had never told me anything about the alleged offence”, he continued:

“There is a possibility that my opinion or what I would say in court would affect her mental wellbeing.  As a clinician this is something which I cannot do, for I cannot cause harm to my patient.”

80.  He said, however, that if the appellant would give her consent, he would be able to respond despite the possible conflict.

81.  The appellant’s solicitors then communicated her refusal to consent.  Despite Mr King’s objections on the ground that the prejudicial effect of the line of questioning greatly outweighed any probative value, prosecution counsel was permitted to cross-examine the appellant on her refusal to consent.  He suggested that the reason why she would not consent was that she knew that Dr Yuen would not support her claim of memory loss and that he would say that she did not suffer from any relevant psychiatric problem.  Although the appellant denied this suggestion and offered another explanation, namely that Dr Yuen was a reluctant witness, the cross-examiner persisted with his suggestion.  His persistence opened up the possibility that the jury would speculate as to the reason why the appellant was withholding her consent, particularly if regard was had to the further suggestion, put in cross-examination, that Dr Yuen could give the best evidence of her condition.

82.  The proposition that, generally speaking, a jury should not be invited to speculate about the reason for not calling a witness, subject to those cases in which an inference can be drawn, is now well accepted: see HKSAR v Lo Wai Ming;[12] Dyers v The Queen;[13] R v Gallagher;[14] R v Couzens;[15] R v Wilmot.[16] The circumstances of this case, however, are of a different order from speculation about the reasons for not calling a witness.  But similar considerations, albeit less serious, apply here.  Why the appellant refused her consent to Dr Yuen making a report or giving evidence was a relatively minor aspect of the case and it is surprising that prosecution counsel pursued it at such length.  It may well have induced the jury to think that the appellant was standing in the way of the court obtaining the best available evidence.

83.  The continuing assumption, which was central to the cross-examination of the appellant, was that there was an inconsistency between memory loss and the non-existence of psychiatric problems.  Even if there was such an inconsistency, it does not follow that there was an inconsistency between memory loss and the non-existence of psychiatric problems which were relevant to the grant or refusal of bail.  Yet many of the cross-examiner’s questions were premised on that inconsistency and on the single statement made by Mr Griffiths SC that she was “normal” in November 2003.  His reservation of “emotional liability” did not feature in the cross-examination.

84.  The persistent and vigorous cross-examination of the appellant was carried to such lengths as to generate a real risk of prejudicing unfairly the appellant in the eyes of the jury.  Prosecuting counsel seems to have been overly zealous and not sufficiently mindful of the prosecutor’s duty to conduct the prosecution case fairly as well as fully.  True it is that what occurred was in a context where diminished responsibility was a defence.  Although it was abandoned after the close of the cross-examination, the effect of the cross-examination on the matters already discussed lived on.  The way in which cross-examination of the appellant on these matters was conducted put her in a difficult position and may well have helped to create an impression that her answers were evasive.  In this respect, the cross-examiner, by impermissible means, may well have contributed to an adverse assessment of her credibility. 

85.  It is important therefore to ascertain what was said about these matters in the closing addresses and the trial judge’s summing-up.  Surprisingly, prosecution counsel simply said:

“In November 2004 – and you’ll remember questions on this topic – in her application for bail, there was no mention or suggestion of significant mental or psychiatric problems, no confirmation or suggestion of documented suicidal history.  Her claim of loss of memory before you, members of the jury, are equally untrue.”

86.  Defence counsel said:

“Now, you’ll remember Mr Chapman cross-examined Mrs Kissel on a report of a doctor when he was dealing with the – I think at this time he was dealing with her bail, and he put to her that the doctor found she had three psychiatric conditions, one of which was dissociative amnesia, difficulty in remembering.  And then we had Dr Desmond Fung who came along and he told you that, as an expert, that he was familiar with dissociative amnesia, and I took him to the passage in the defence exhibits that said what – explained what dissociative amnesia is about.  It is a condition that exists, and people who face horrific, traumatic situations do lose their memory and that memory comes back, bit by bit, on occasions, as time goes on.”

87.  The following passage is recorded in the learned Judge’s summing-up:

“The defendant said that after her arrest, she was held in custody in Siu Lam Psychiatric Centre until early November 2004.  While she was there, she came to realize that she had significant gaps in her memory.  In particular, she did not have a lot of memory of the weekend of 2 November 2003.  When asked if those memory problems were still with her in November 2004, she said that it was still with her today.  The defendant accepted that she had made an application for bail pending trial on 1 November 2004 and that she was represented by Mr John Griffiths of Senior Counsel, whom she accepted had said, on behalf of her three prospective sureties, that they said, in respect of the defendant, ‘there is no question of any psychiatric problem’; they all say, ‘she is perfectly normal and the woman that she was, save for some emotional debility’.”

88.  Although those passages may indicate that, by the end of the trial, impermissible aspects of the appellant’s cross-examination were considered to be no longer of central importance, they were nevertheless of relevance to the jury’s assessment of the appellant’s credibility and her credibility was a central issue in the case.  The cumulative effect of the impermissible aspects of the cross-examination to which we have referred were prejudicial to the appellant.  They may well have contributed significantly to an adverse assessment by the jury of her credibility, thereby resulting in an unfair trial.  There is no logical or sound basis for concluding that the errors and the unfairness were not material to the outcome of the trial.

89.  Therefore this ground of appeal is made out.

Ground 2: Hearsay

90.  The next ground of appeal involves the appellant’s complaint that the Judge wrongly permitted two witnesses to testify that Robert Kissel had told each of them that he suspected the appellant of poisoning his whisky and of trying to kill him.  Such evidence was hearsay and inadmissible as to the truth of the deceased’s assertions.  Moreover, the appellant submits, the fact that the deceased had made such assertions was not admissible for any other purpose, not being relevant to any matter in issue.  Even if the fact that he had made such assertions might be in any sense relevant, it was incumbent on the Judge, so it was argued, to have excluded the evidence on the basis that its prejudicial effect far outweighed any probative value it might possess.

The evidence objected to

91.  The first witness concerned was Ms O’Shea who was described as the appellant’s best friend and who became Robert Kissel’s confidante in respect of his marital relationship.  The passage in her evidence which is the subject of complaint runs as follows:

“Q.    Did you hear anything about web sites from Mr Robert Kissel?

A.    Yes, I did.  I heard probably in August, late August, early September.

Q.    2003?

A.    2003.

Q.    So what about web sites?

A.    He called me one evening at 6 o’clock and I had just gotten home from work and he said, ‘Bryna, get this’, I said, ‘What’s going on?’  He goes, ‘I found a web site that Nancy went to’ and I was like, ‘Yes.’  And he goes, ‘It was about’, and I didn’t remember until after his funeral, what the actual subject of the web site was.  But he had told me that it was a web site about, something about drugs, or death, or something dark, that’s all I could remember.  And I said, you know, ‘You are kidding me?’ and he said, ‘No’, he said, ‘Do you think she is trying to kill me?’  And I said, ‘Rob’, you know, I laughed, I said, ‘If she is really -- if she is trying to kill you, put me in your will’ and we laughed.  And he said, ‘Seriously, Bryna, if anything happens to me, make sure my kids are taken care of.  Make sure the right thing is done with my children.’  And we talked, you know, and I got off the phone and I went into the kitchen and I told my husband the conversation we had and he just thought Rob was imagining things, he said, ‘You know, that has gone on a long time.’”

92.  The other witness was Mr Shea, the private detective hired by the deceased to conduct surveillance on the appellant regarding her suspected extra-marital affair in Vermont.  The passages in his evidence objected to are as follows:

“A.    Shortly after Mr Kissel’s return to Hong Kong, he called and he expressed concern, he was quite upset, he expressed concern that he wife was trying to kill him.

Q.    In what way?

Q.    He said that he believed that she was trying [to] poison him and he thought that it’s...

Q.    Just pause there.  Did he describe how?

A.    Yes.

Q.    Just describe how?

A.    Mr Kissel said that when he would return from work in the evening there was a decanter of scotch in his living room or den, and that he would come home and have a sip of scotch and he would feel very -- the scotch tasted -- did not taste normal to him, but he...

Q.    Just pause there, thank you.  And this was underpinning his concern.

A.    Well, he also said that the effects of the scotch were quite remarkable, it would make him feel very woozy, very disoriented.

Q.    Pause there.  So what did you advise him to do, yourself?

COURT:    Before you get to that, Mr Chapman.  Members of the jury, this is another area where I’m going to repeat the direction I’ve given you.  The oral assertions made by the deceased to Mr Shea as to this matter, that is to say, that he believed his wife was trying to poison him, perhaps to kill him, and that this was being done through the whiskey that he drank from his decanter, that is not evidence of the truth of those assertions.

However, it is evidence that you can take into account in respect of his state of mind in respect of the state of the marriage; that is to say, what he believed the state of the marriage to be.  Thank you.

Q.    So, Mr Shea, having heard this, what did you advise Mr Robert Kissel, if anything?

A.    I was concerned at that point that Mr Kissel’s life was in danger and I advised him to go to the police, contact his attorney, have his blood tested and have his urine tested and to get the decanter of scotch and have that tested.”

93.  Later, referring to an e-mail Mr Shea had received from the deceased regarding the advice the former had given as to having the relevant tests done, Mr Shea’s evidence runs as follows:

“A.    Robert Kissel had my work number, my cell number and my home number, because I thought that it was necessary in this case.

Q.    In reply, [an] email reading, ‘I got it thanks, been crazy busy, I’m going to send it out today’, what does ‘send it out today’ refer to?

A.    I thought that Mr Kissel would be sending out the samples to be tested.

Q.    Then, ‘kind of in denial too.’

A.    What did you understand Robert Kissel to mean by that?

A.    I think from the first day that Mr Kissel indicated to me that he thought that his wife was attempting to kill him, that he just couldn’t believe it was going to happen.”

94.  It is immediately apparent that the contested evidence carried a high risk, if misused, of grave prejudice to the appellant.  It consisted of two witnesses stating that they had heard Robert Kissel, the murder victim, say that he suspected his wife, the alleged murderer, of poisoning his whisky and trying to kill him some six or eight weeks before he met his death.

The issues between the parties

95.  It was not in dispute that reports of communications with the deceased were hearsay and were not admissible as evidence of the facts asserted by the deceased.  Nor was it in dispute that evidence may be given of an out-of-court statement where such evidence is adduced to establish, not the truth of the facts stated, but the fact that the statement was made.[17]  It was on this basis, and not testimonially, that the prosecution sought to adduce such evidence.

96.  However, as everyone also accepted, while evidence of an out-of-court statement may be admissible as original (and not hearsay) evidence of the state of mind of the maker, its admissibility depends on whether such state of mind is relevant either because it is itself a fact in issue or because it is relevant to establishing a fact in issue.[18]  Moreover, it is clear that the court should exercise its discretion to exclude such evidence if its prejudicial effect is out of proportion with its probative value.[19] 

97.  The controversy, then as now, was as to whether the Judge should have treated the requirements of relevance and the discretionary balance as satisfied in relation to the evidence of suspected poisoning.  The decision to admit that evidence falls to be considered at three stages: at the stage of the pre-trial admissibility ruling; at the trial and in the Court of Appeal.

The Judge’s pre-trial ruling

98.  At the pre-trial hearing, the defence objected to the admissibility of evidence prospectively to be given by various witnesses, including Ms O’Shea and Mr Shea, regarding a variety of matters communicated to them by the deceased, including the evidence of suspected poisoning. 

99.  The Judge dealt with those objections in a detailed ruling given on 3 June 2005.  He had before him depositions, witness statements and other materials indicating in detail what the evidence likely to be adduced at the trial was, and the nature of the cases likely to be developed on both sides.  His principal task at that hearing was to rule on the relevance and admissibility of such prospective evidence. 

100.  It was apparent that the prosecution’s case was that the appellant had committed a pre-meditated murder, drugging the deceased with a milkshake and then killing him with fatal blows to the head when he was incapable of defending himself.

101.  As to the case likely to be made on behalf of the appellant, the Judge had a detailed psychiatric report prepared by Dr Wong for the defence.  It included passages recording the account given to him by the appellant of the events of 2 November 2003.  It revealed that the appellant was alleging that the deceased had on that day told her that he was divorcing her and would be taking the children away; that he had struck her and had forcible sexual intercourse with her; that he had hit her with a baseball bat and was threatening to kill her; and that it was in such circumstances that she had struck him with the ornament.  The Judge naturally concluded that the defences of self-defence and provocation were likely to be in issue.

102.  The Judge ruled admissible evidence of a series of statements, oral and written, made by the deceased (including the evidence now complained of) which, in his view, showed the deceased’s state of mind as to the condition of the marriage.  He did so principally on the basis that such evidence was relevant to the defences of self-defence and provocation.  His Lordship stated:

“I turn then to my conclusions.  Clearly, the first question to pose is to what fact in issue, or relevant to a fact in issue, is the impugned evidence relevant and probative.  The obvious answer is to the issue of self-defence and provocation.  In that context, the following issues of the deceased’s state of mind arise for consideration in respect of relevance.

Firstly, the belief in the deceased that his wife had had an affair with Michael and that it was ongoing in that she was in constant contact with him by telephone.  Secondly, belief in the deceased that the defendant was poisoning his drinks; and thirdly, his intention in respect of divorce and the terms to be advanced, in particular with regard to care and control, and access and the financial position.”

103.  A secondary basis upon which the Judge ruled the evidence admissible was that it was relevant “as part of a continual background of history”, taking that phrase from the judgments in R v Phillips[20] and R v Pettman,[21] to which we will return.

104.  The general evidence as to what the deceased believed to be the state of the marriage allowed in by the Judge on the two bases mentioned above came from a variety of sources.   It included evidence of his having installed spyware on the appellant’s computer; of his having obtained a list of marriage counsellors from his sister Ms Jane Clayton; of his hiring Mr Shea to conduct surveillance on his wife; of his discovering her affair with Mr del Priore and her continued contact with him by telephone after her return to Hong Kong; of his visiting Ms Sharon Ser for legal advice on family law matters; of the couple’s attendance at marriage counselling sessions with Ms Halloran; and of his taking advice on divorce Mr Egerton, another family lawyer, shortly before his death.

Issues to which the impugned evidence was relevant

105.  Leaving aside for the moment the evidence of suspected poisoning, the Judge was plainly entitled to regard aspects of the aforesaid evidence as immediately relevant to the issues of self-defence and provocation.  As he pointed out, prospective witnesses were expected to give evidence of the deceased’s “...intention to discuss the matter with his wife on Sunday [2 November], to seek access to the children at weekends only, the defendant to have care and control of them, and as to the financial terms of divorce.”  Such evidence was clearly relevant to possible motives for the killing and directly relevant to the circumstances of the killing in the light of the appellant’s statement to Dr Wong that the alleged fight with the deceased occurred in the context of his threatening to take the children away from her.

106.  Again leaving aside the evidence complained of on this appeal, the Judge properly regarded the evidence of how the marriage had deteriorated and the deceased’s perception thereof to be relevant to assessing the competing cases being advanced as to the nature of the couple’s relationship.  The prosecution’s case was that the deceased was a stable, caring husband who had made genuine attempts to save the marriage and was seeking a civilized divorce, while the defence cast him in the role of a frequently intoxicated and physically and sexually abusive husband.   It was necessary for the jury to examine these opposing versions of the couple’s relationship as relevant background to assessing the competing cases as to how the killing had occurred.  Referring to certain e-mails allowed in as part of the general evidence on the state of the marriage, the Judge put this as follows:

“It is part of the ‘mosaic’ of evidence that will enable the jury to understand the background of the state of mind of the deceased, his belief in the state of the marriage.  Also, it enables the jury to put into context the assertions he made in the days before 2 November 2003 of his intentions in respect of the divorce and the terms thereof.”

107.  However, the evidence of Robert Kissel voicing his suspicion that the appellant had poisoned his whisky and was trying to kill him, stands on a markedly different footing.  The Judge ruled it in as relevant to the issues of self-defence and provocation.  He apparently accepted the prosecution’s submission that it was evidence relevant to rebutting “allegations or evidence that the deceased was the aggressor in the relationship and in the apartment on the evening of 2 November 2003”.

108.  We are unable to accept the correctness of that view.  For such evidence to have the relevance suggested, it must be logically probative of some fact in issue relating to the defences of self-defence or provocation.  It must tend to make it more or less probable that in killing Robert Kissel on 2 November, the appellant was acting in self-defence or under provocation. [22]  We are unable to see any such connection.  The deceased’s reported belief throws no light on the circumstances in which the appellant killed him and, in particular, as to whether she was acting in self-defence or under provocation, questions dependent on the appellant’s, and not the deceased’s, mental state at the time.  His suspicion about being poisoned makes it neither more nor less probable that the defences avail the appellant.  Any purported connection is all the more difficult to make given that the statements in question were made to Ms O’Shea in August or early September 2003 and to Mr Shea in mid-September 2003, some six or eight weeks before the fatal events of 2 November 2003.

109.  What then of relevance on the secondary basis accepted by the Judge?  Could admission of the challenged evidence be justified on the basis that it was relevant “as part of a continual background of history” leading up to the killing?  It will be recalled that in support of this basis for admitting the evidence the Judge referred to the decisions in R v Phillips[23] and R v Pettman.[24]  Before answering the questions just posed, certain potential misconceptions based on those decisions ought to be dispelled.

110.  In his ruling, the Judge cited the following passage from the judgment of Dyson LJ in R v Phillips[25] :

“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.”

111.  It is essential that the apparently wide words in the passage cited as to the potential relevance of the matrimonial relationship in cases “where one spouse is charged with the murder of the other” be placed in their proper context.  Phillips was a case involving a husband charged with the murder of his wife where a challenge was made to the admission of evidence regarding remarks the deceased had made about her husband and their marriage, in particular about death threats he had made against the deceased.  His Lordship was referring to the relevance of such evidence “in the present case” and emphasised that:

“The essential question in every case is whether the evidence passes the test of relevance.  If it is relevant, then it is admissible unless, in the exercise of its discretion, the court decides that fairness requires it to be excluded.”[26]

112.  The court upheld the admissibility of the contested evidence as follows:

“The evidence that his marriage had broken up was in our view admissible both to rebut his claim that it was a happy marriage, and to show that he had a motive (albeit an irrational motive) for killing her. The reason why he claimed at interview that the marriage was happy was to show that he had no motive for killing her, and that he therefore did not kill her. The link between motive and his claim was clear.”[27]

113.  In R v Frawley,[28] the New South Wales Court of Appeal stressed the essential importance of establishing the relevance of the evidence sought to be called and discouraged use of the label “relationship evidence”.  Gleeson CJ noted[29] that in Wilson v R,[30] Menzies J had recognized that in some cases, it may be highly relevant to show that the alleged offence had occurred “in the setting of a tense and bitter relationship between a man and a woman who were husband and wife” but pointed out that Barwick CJ had observed in the same case[31] that the fundamental rule regarding the admissibility of evidence is that it be relevant.  As to so-called “relationship evidence”, his Honour stated:

“One of the difficulties affecting consideration of relationship evidence is that the concept of relationship is vague. In a particular case, such as the present, it may be necessary to identify with more precision what is in question.  Frequent and serious quarrelling between a couple, of a kind that goes beyond what Menzies J referred to in Wilson as ordinary difficulties and disagreements, may be relevant to whether one intended to kill the other, or to some other issue in a criminal trial. That is one kind of relationship evidence. What, however, of evidence of the state of mind of one party to a relationship?  If one party to a relationship is accused of murdering the other, admissible evidence of the accused's state of mind may well be relevant. It is less likely that evidence of the victim's state of mind will be relevant, although, as the authorities cited above show, it may be relevant, depending on the issues in the case.  Again, evidence that one party says things derogatory of the other party, in the other party's absence, is a form of relationship evidence. Whether or not it is admissible may depend upon the circumstances, and it is not particularly helpful to begin with an assumption that, in a case of homicide involving a man and a woman, evidence of their relationship is admissible.  In this case I find it preferable to avoid the label ‘relationship evidence’ and to seek to describe more accurately and more particularly the subject matter.”

114.  It would of course be absurd to suggest that whenever one is concerned with an alleged murder of one spouse by another, all manner of hearsay and other items of inadmissible evidence become transformed into admissible evidence simply on the basis that the jury should be told about the matrimonial relationship in general.  The basic principles requiring the evidence to be of a fact in issue or relevant to establishing a fact in issue and to be subject to the exclusionary discretion continue to govern.

115.  The same comments may be made in respect of R v Pettman.[32]  There, the prosecution’s case was that the appellant was part of a group concerned in the planning and execution of a series of armed robberies.  His case was a complete denial of any involvement and reliance on an alibi.  The court allowed in evidence that the appellant and a co-accused had used a car on an earlier occasion during which an offence not charged may have been committed because his use of the car provided a vital link in circumstantial evidence connecting the accused with the charged offences.  Purchas LJ giving the Judgment of the Court, upheld the admissibility of the evidence stating:

“... where it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence. ... That this evidence had a high probative value cannot be disputed, because it connected the appellant with the car EGP 854J and the stolen chequebook, both of which were used on other occasions in furtherance of the alleged conspiracies to which we have already referred.”[33]

116.  The evidence was therefore directly relevant to a fact in issue, namely, whether the accused was at the scene, and prevented the other items of evidence from being “incomplete or incomprehensible” on the specific facts of the case.  The decision is not authority for any separate or special principle of admissibility.   Neither Phillips nor Pettman provide any legal basis for admitting the contested evidence in the present case.

Evidence of the state of the marriage and the discretion to exclude

117.  We return then to the question being discussed.  Having rejected the relevance of the contested evidence to the issues of self-defence and provocation, the question is whether the evidence of Ms O’Shea and Mr Shea as to the deceased’s belief that the appellant had poisoned his whisky and was trying to kill him relevant “as part of a continual background of history”?  Taking “relevance” in a broad sense, the answer must be “Yes”.  If a husband thinks his wife is trying to poison and kill him then in a literal sense, that belief is relevant evidence that he must regard the marriage as having deteriorated to a most lamentable state. 

118.  But to characterise the relevance of the contested evidence as simply evidence of Robert Kissel’s state of mind regarding the condition of his marriage is greatly to understate its impact.  The testimony of two witnesses that the murder victim had told them that he suspected his wife, the alleged murderer, of poisoning his whisky and trying to kill him obviously carried an extremely prejudicial effect.  The Judge had ruled admissible copious evidence, referred to above, which was logically probative of the deceased’s perception of the state of the marriage and which would amply enable the jury to assess the contrasting ways in which each side was depicting the couple’s relationship in the months preceding his death.  There was no need for them to receive the highly prejudicial evidence of suspected poisoning for that purpose.  It added nothing of significance to the large corpus of evidence available on that score. 

119.  In his ruling, the Judge did not focus specifically on the discretionary balance in relation to the evidence of suspected poisoning.  He dealt with the probative value and prejudicial effect of the evidence then being challenged in omnibus terms, stating at the beginning of his ruling that where evidence was ruled admissible, he had considered and decided against exercising his discretion to exclude the same.  His Lordship was no doubt proceeding on the basis that the presently impugned evidence was relevant and probative in relation to the defences of self-defence and provocation, a view which we have held to be erroneous.

120.  The Judge’s decision not to exclude the relevant evidence as being disproportionately prejudicial involved the exercise of a judicial discretion which, as is well-established, will only be interfered with on appeal in limited circumstances.  The principles are clearly stated in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King[34] as follows:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

121.  Applying those principles, interference with the Judge’s exercise of discretion in favour of admitting the evidence is justified in the present case.  The balance he struck was founded on an erroneous view as to the probative significance of the impugned evidence, treating it as relevant to the issues of self-defence and provocation.  In exercising our discretion in substitution, we hold that the prejudicial effect of the challenged evidence far outweighs its marginal relevance towards establishing the deceased’s state of mind regarding the condition of the marriage – such being the only other head of relevance postulated by the Judge (and, as indicated below, put to the jury).  The appellant has therefore succeeded in showing that a material error was made in the admission of such evidence at her trial.

Treatment of the evidence at the trial

122.  It is sometimes possible for such an error to be corrected by appropriate directions to the jury.  It is therefore necessary to consider how the evidence, once admitted, was dealt with at the trial. 

123.  The Judge’s approach to its relevance in his summing-up did not fully reflect the views he had expressed in his ruling.  In particular, he did not suggest to the jury that Robert Kissel’s reported statements might be relevant to the issues of self-defence or provocation even though that had been the principal reason for his pre-trial ruling in favour of admissibility.  In view of our decision that the evidence lacked such relevance, the course taken by the Judge is perhaps not surprising.

124.  The Judge repeatedly reminded the jury that evidence of what Robert Kissel had told various witnesses, including Ms O’Shea and Mr Shea, was not evidence of the truth of the deceased’s assertions.  However, his directions as to the use that the jury could properly make of the evidence were very brief.  Indeed, his directions in relation to Ms O’Shea’s evidence were confined to her testimony that the deceased had reported discovering visits by the appellant to internet sites “about drugs, or death, or something dark”.  He gave them no instructions regarding her evidence that the deceased had asked whether she thought the appellant was trying to kill him or, that after laughing off that suggestion, Robert Kissel had added: “Seriously, Bryna, if anything happens to me, make sure my kids are taken care of.  Make sure the right thing is done with my children.”

125.  In relation to Mr Shea’s evidence, the Judge directed the jury in the following terms:

“...Robert Kissel's assertions to Frank Shea after his return to Hong Kong in late August 2003, assertions made in emails that we have seen in mid-September, that his wife was poisoning his whisky decanter is not evidence of the truth of what was asserted.  There is no evidence whatsoever of that. It is admissible in evidence only in respect of his belief of the state of the marriage; that is to say, what steps he took in relation to the marriage, believing that this be the case - or at least asserting that he believed this to be the case.  Whilst the defendant admitted in testimony that in Hong Kong, as well as in Vermont, she had crushed a pill and put the contents into a whisky bottle, she said that in Hong Kong in contrast to Vermont, she discovered that the crushed pill was visible in the bottle, she removed it, threw the contents away and put a new bottle back.  So there is no evidence of poisoning of whiskey in Hong Kong.”[35]

126.  Returning to Mr Shea’s evidence, his Lordship stated:

“Shortly after Robert Kissel’s return to Hong Kong on 23 August 2003, Frank Shea said that he received a telephone call in which Robert Kissel expressed concern that his wife was trying to kill him, that is, poison him.  In particular, he asserted that the contents of a decanter of scotch that he kept at his home did not have the normal effects upon him.  The effects were remarkable, making him woozy and disorientated.  Mr Shea advised Robert Kissel to go to the police, his lawyers, and to have tests done of his blood, urine, and the contents of the decanter.

.... I have given you directions earlier about the fact that none of these assertions are evidence of the truth of the facts asserted.  They are merely evidence that goes to a consideration of Robert Kissel’s belief of the state of his marriage.”[36]

127.  The Judge’s direction to the jury as to the relevance of the impugned evidence was therefore confined to telling them that they could regard it as relevant to the deceased’s belief as to the state of the marriage and the steps he took in relation to the marriage in that belief.  In other words, his direction attributed a probative value which we have described as being of marginal significance in the context of ample non-prejudicial evidence available concerning the state of the marriage.  The Judge does not, however, appear to have considered the effect of so confining the relevance of the evidence on the exercise his discretion to admit the same. 

128.  More damagingly, the material error was compounded at the trial by the prosecution’s closing speech.  Counsel for the prosecution (not Mr Zervos) stated:

“Now, you’ll also recall that about this time an exchange occurred between Bryna O'Shea and Robert Kissel and I think she dated it late August/early September.  She couldn’t be sure.  And in that conversation, Bryna, when she’d heard certain observations by Robert Kissel about his concerns said, half-jokingly to him, ‘If she’s trying to kill you, put me in your will.’  You’ll remember that evidence, which was read to you.  And half-jokingly, she said, but how prophetic it turned out to be.

The evidence of Bryna O'Shea, these e-mails of Frank Shea, and Frank Shea’s evidence itself, demonstrates that by September, Nancy Kissel had begun to employ drugs, it appears, against her husband and Robert Kissel was nervous and apprehensive, although, because of this 180 degree turn that we’ve just seen referred to, he would later enter a phase of denial and inaction over his concerns and that feeling of guilt over his suspicions of his wife, Nancy Kissel, would ultimately mean he took no steps as recommended by Frank Shea.  And those failures, that inaction, it appears, would contribute to or ultimately cost him his life.” (Italics supplied)

129.  In our view, those passages constituted a wholly impermissible invitation to the jury to treat the hearsay statements of the deceased as evidence of the truth of the facts asserted by him.  In inviting them to consider “how prophetic” his stated suspicion that the appellant was trying to kill him was, the prosecution was suggesting that his suspicion was well-founded.  More importantly, the prosecution expressly invited the jury to treat the evidence of Ms O’Shea and Mr Shea – which was plainly hearsay evidence of what the deceased had told them  – as demonstrating that by September, the appellant had in fact been poisoning her husband.  Counsel went so far as to suggest to the jury that there was a causal link between such earlier poisoning and Robert Kissel ultimately losing his life because of his inaction based on feelings of guilt about having harboured suspicions concerning his wife’s intentions.

130.  That submission was grossly prejudicial and quite improper.  It went far beyond the prosecution’s avowed basis for adducing the evidence and overstepped the Judge’s ruling as to the limited purposes for which it would be allowed in.  It contradicted the express directions repeatedly given by the Judge to the jury.  Unfortunately, the Judge did not intervene to counteract that submission.  He did not instruct the jury to reject the prosecution’s invitation to make such grossly impermissible use of the evidence.  He confined himself to repeating his general injunction against treating the hearsay evidence of those two witnesses as evidence of the truth of the deceased’s assertions.  In the context, such a direction was insufficient.  Mr Zervos fairly accepted that the prosecution’s remarks set out above were inappropriate although he endeavoured to argue that the warnings against treating hearsay as evidence of the facts asserted were sufficient.  We do not agree.

The Court of Appeal’s rescue attempt

131.  The Court of Appeal criticised the appellant’s argument on the hearsay ground on the basis that it was developed spasmodically in the course of the hearing and difficult to follow, requiring that Court to make substantial researches of its own.  No doubt in part because leave was given to argue the hearsay ground only in relation to the evidence of suspected poisoning, the argument before this Court was evidently better focused and defined. 

132.  Having reviewed a number of authorities, the Court of Appeal summarised the applicable principles, correctly emphasising the fundamental importance of relevance as the basis of admissibility and rejecting “relationship evidence” as a separate basis.[37] 

133.  Leaving the question of the deceased’s belief that he was being poisoned to be dealt with later in their judgment, their Lordships analysed the relevance of the general body of evidence concerning statements made by the deceased as contended for by the prosecution.[38]  They held that the Judge was fully entitled to regard such evidence as relevant.  It tended to indicate:

“...the confusion into which the deceased was apparently thrown in the summer of 2003 by the fluctuating attitude of the appellant, as he, the deceased, perceived it; the deceased’s frustration and disappointment at finding, because of his discovery of the second mobile telephone, that his hopes of reconciliation were finally dashed; his stated intention not to seek custody of the children and to divide the assets of the marriage equally...”[39]

134.  Such evidence, their Lordships held, showed:

“ ... a non-vindictive attitude that sat contrary to the appellant’s description of the respective attitudes of the parties to this marriage; and [demonstrated] the relevance of these matters to the defences of self-defence and provocation that were presaged by Dr Wong’s detailed recounting of the appellant’s case and by cross-examination on her behalf.”[40]

135.  The prosecution was contending that this was a case of murder by “a premeditated act, with no history of provocation, by a woman obsessed with another man, irritated by the unwelcome smothering attentions of her husband and who, unlike her husband, had no true interest in saving the marriage”.[41]  The appellant’s case, by contrast, was that it was a killing in self-defence by a:

“... scared, repressed woman driven to thoughts of suicide by the conduct of a man of drunken, drugged, sexually abusive and otherwise violent disposition given to taking pills, and who ultimately, on 2 November, beat her yet again, but this time with a threat to kill her, after presenting her with the fait accompli of having instituted divorce proceedings, including a threat to take her children from her.”[42]

136.  Thus, their Lordships held that the general body of evidence as to the deceased’s state of mind in relation to the marriage was plainly relevant:

“It appears to us obvious that evidence showing a state of mind at odds with what the appellant testified had been happening at the time of particular utterances or writings, was clearly evidence relevant to rebut the appellant’s defence.”[43] 

137.  This conclusion was buttressed by five examples showing the relevance of such evidence to issues arising at the trial.

138.  As previously indicated, we are in essential agreement with the Court of Appeal as to the relevance and admissibility of the general evidence concerning Robert Kissel’s perception of the state of his marriage as necessary background against which the jury had to assess the competing cases being advanced.  But, as we state above, the evidence concerning the deceased’s statements that he suspected the appellant of poisoning and trying to kill him stands on a different footing.  It adds nothing of any significance to the available evidence of the couple’s marital relationship and is highly prejudicial. 

139.  Dealing specifically with that evidence, the Court of Appeal propounded a theory of relevance which (although advanced by the prosecution in its skeleton argument for the pre-trial hearing) was not mentioned at any point by the Judge.  The Court of Appeal noted that “a feature of this case that might be said to stand against the prosecution’s case of premeditated murder” involved the way in which the appellant had allegedly drugged the deceased as part of her plan of murder.  This posed a “conundrum” for any fact-finder since it might be thought unlikely that the appellant would have adopted the apparently clumsy and risky expedient of delivering a drugged milkshake to their neighbour Mr Tanzer at the same time.[44]

140.  The Court of Appeal decided that the impugned evidence was relevant and admissible as the means of resolving that conundrum:

“The full context provides the only reasonably understandable explanation for the method chosen to deliver the drugs.  This was that, on more than one occasion, the appellant administered drugs to the deceased’s drink, and that the second occasion occurred in late August 2003 when she added a drug to his whisky but then threw it out because its presence was discernible to the eye.  That is common ground.  From the communications between the deceased and Mr Shea, we know that the deceased suspected, not only from website searches by the appellant of which he was aware, but also because of the taste and effect of whisky that he had consumed, that his wife was trying to poison him.  His concern was so deeply nurtured that he planned to submit samples of his hair for testing.  By that stage, he had known for some time of his wife’s affair in respect of which the appellant had said in her diary entry dated 21 August 2007 that ‘he [the deceased] will never trust me again.’

In these circumstances, there is one irresistible inference which may safely be drawn, which is that by September 2003 and thereafter the deceased must have taken the greatest care to avoid drinks offered to him by the appellant.”[45]

141.  The stage reached at this point in the Court of Appeal’s reasoning was that the impugned evidence supported an irresistible inference that the deceased would have been wary of accepting any drink prepared by the appellant for fear of her trying to poison him.  That is disputed by the defence who point out that there was evidence from one of the couple’s domestic helpers that the appellant had continued to make her husband’s coffee in September 2003.  However, leaving that dispute aside, a further step in the Court of Appeal’s reasoning was in any event required if admission of the challenged evidence was to be justified.  It was not enough to show that the deceased was likely to be wary of drinks proffered by the appellant.  There had additionally to be a proper basis for thinking that the appellant knew of such wariness on his part so as to explain her using the milkshakes as camouflage to overcome his anticipated resistance. 

142.  Pointing to the fact that the appellant had accepted in evidence that there was an extreme level of mistrust between herself and the deceased, the Court of Appeal sought to bridge the gap in its reasoning by asserting  that it could be filled as a matter of obvious inference:

“It is but a short and logical step from there to infer that the appellant was well aware of the deceased’s wariness in relation to taking drink from her.  Whilst it has been conceded by Mr McCoy that evidence of her knowledge of his suspicions could render relevant and admissible these statements by him to third parties, he has submitted that there is no evidence of that knowledge.  We disagree.  It is a matter of obvious inference.  Since, as she was forced to concede, the level of mistrust between them by and after September 2003 was extreme and if, as must have been the case, he was avoiding drinks proffered by her, she, knowing herself that she had more than once administered drugs to his drink, must have realized what he was avoiding and why he was avoiding it.”[46]

143.  Their Lordships also held[47] that evidence having such relevance possessed a probative value which was not outweighed by its prejudicial effect.

144.  We are, with respect, unable to agree with the approach adopted by the Court of Appeal.  The Judge never left to the jury the possible relevance of the impugned evidence in connection with drugs being administered by use of the milkshakes.  He had only told them that they could use it as evidence of the deceased’s belief in the state of the marriage and the steps he had taken in that belief.  Whether the deceased was in the habit of refusing drinks prepared by the appellant was in dispute and a matter for the jury.  So was the question whether the appellant was aware that the deceased knew about her drugging his whisky.  There was no evidence that she did.  The Court of Appeal was not entitled to take over the jury’s role by declaring that her knowledge could obviously be inferred.  That was not a sound basis for completing the chain of reasoning in its theory of relevance.

145.  It should be emphasised that we do not seek to suggest in this judgment that the Court of Appeal’s theory of relevance could never be cogently advanced or that the probative value of the impugned evidence, given such relevance, must necessarily be outweighed by its undoubted prejudicial effect.  Those may be legitimate matters for consideration on a retrial in the light of the evidence as a whole and subject to appropriate directions on relevance being given to the jury.  We stress that where a trial judge comes to the conclusion that it is proper to admit evidence which has the capacity to be prejudicial, he should clearly direct the jury as to the use to which it can put the evidence.  Our rejection of the Court of Appeal’s attempt to rescue the position by propounding its own theory of relevance rests on the fact that such attempt trespasses on functions which are the province of the jury.

146.  For the aforesaid reasons, the second ground of appeal is made out.

Ground 3: Self-defence

147.  It is convenient to begin an examination of this ground of appeal by setting out the appellant’s account of the violent argument in which the deceased met his death on 2 November 2003.  For the purposes of considering this ground, it is sufficient, as the Court of Appeal did, to set out the trial judge’s summary in his summing-up to the jury, of the appellant’s evidence of the incident:

“She said, ‘Okay, I’m here, what do you want to talk to me about?’  Robert Kissel said, ‘Are you listening?’  She confirmed that she was listening, and he asked again, ‘Are you sure you’re listening?’  Again she confirmed she was, and then he said, ‘I’ve filed for divorce and I am taking the kids’.  Her response was to say, ‘What do you mean you’re filing for divorce and you are taking the kids?’  She said Robert Kissel said, ‘No, it’s not what I said’.  She said, ‘Yes, it is what you said.  I’ve just heard you, you just said that’.  Robert Kissel said, according to her, ‘No, it’s not what I said.  If you’d listen, you’d have heard what I said’.  She said, ‘Okay, I’m listening’.  Once again, she confirmed his inquiry that she was sure that she was listening, at which point Robert Kissel said, according to her, ‘What I said was, if you were listening properly, was I have filed for divorce and I am taking the kids’.  She said, ‘Filed? What do you mean filed?’  Robert Kissel said that it was a done deal.  He’d talked to lawyers.  He said, ‘It’s already been done’.  He went on to say, according to her, that she was not fit to take care of the children, she was sick; he’d told his lawyers about her condition and everything was done.

The defendant testified that she noticed that Robert Kissel was leaning on a baseball bat.  He raised it with one hand and brought it down into the palm of his hand.  She asked, ‘What the fuck is that?’ and Robert Kissel said, ‘Oh, this?  This is protection’.  ‘Protection from what?’ she inquired.  The defendant said that Robert Kissel had said, ‘Well, I thought you might get mad at what I was telling you and I need to protect myself in case you got mad’.”

148.  At the beginning of his summing-up the trial judge informed the jury in relation to the defence of self-defence, that the appellant claimed that she had been “attacked first by Robert Kissel”, that she was acting in defence “to a physical attack on her following taunting and provocative statements made by Robert Kissel that he had filed for divorce and that he was to take custody of the children”.

149.  The judge directed the jury that it was for the prosecution to satisfy them that the appellant was not acting in self-defence.  He then said:

“What does acting in self-defence mean?  The law is that a person only acts in lawful self-defence if, in all the circumstances, she believes it necessary for her to defend herself and the amount of force which she uses in so doing is reasonable.  So, there are two questions that arise:

(1)   Did the defendant believe, or may she honestly have believed, that it was necessary to use force to defend herself?

A person who is in reality the aggressor, or who injures another as an act of revenge or retaliation, acts unlawfully, for it is not necessary for her to use force at all.  In this case, the defendant has testified that she was attacked by Robert Kissel, who forced her to have sex and was attempting to force anal sexual intercourse on her, during which struggle he attacked her with a baseball bat, accompanied by the oral threat, repeated, that he was going to kill her.  If you are sure that the defendant did not honestly believe that it was necessary to use force to defend herself, she cannot have been acting in lawful self-defence and you need not consider this matter further.  But if you decide that she was or may have been acting in that belief, then you must go on to answer the second question.

(2) Taking the circumstances as the defendant believed them to be, was the amount of force which she used reasonable?

The law is that force used in self-defence is unreasonable and unlawful if it is out of proportion to the nature of the attack or if it is in excess of what is really required of the defendant to defend herself.  Obviously, as Mr King has reminded you, a person who is under attack may react on the spur of the moment and she cannot be expected to work out exactly how much force she needs to use to defend herself.  On the other hand, if she uses force out of all proportion to the attack on her, or more force than is really necessary to defend herself, the force used would not be reasonable.  So you must take into account both the nature of the attack on the defendant, if indeed there was any attack on her, and what she then did. (Emphasis added)”

150.  Mr McCoy SC argues that the sentence emphasized immediately after the question numbered (1) above is a material misdirection because there are circumstances in which a person who is the initial aggressor or who harbours an intention to seek revenge or retaliate can avail himself of self-defence.  That such circumstances can exist is well accepted.  Thus, in Burns v HM Advocate,[48] the trial judge told the jury that a requirement of self-defence was that “the accused must not have started the trouble”.  This was in a case in which the evidence was that “the accused started the trouble” by assaulting people.  When the fight ended, the deceased and another followed the appellant whose case was that, as he thought that they were chasing him, he reacted violently, killing the deceased.  His defence was that he did so in response by way of self-defence after he had walked away.

151.  The appeal was allowed on the ground that what the judge told the jury was a misdirection; the fight the appellant started had finished and, if the appellant’s account were or might be true, he was entitled to defend himself against the new attack which threatened him.  Their Lordships said:[49]

“It is not accurate to say that a person who kills someone in a quarrel which he himself started, by provoking it or entering into it willingly, cannot plead self-defence if his victim then retaliates.  The question whether the plea of self-defence is available depends, in a case of that kind, on whether the retaliation is such that the accused is entitled then to defend himself.  That depends upon whether the violence offered by the victim was so out of proportion to the accused’s own [actions] as to give rise to the reasonable apprehension that he was in an immediate danger from which he had no other means of escape, and whether the violence which he then used was no more than was necessary to preserve his own life or protect himself from serious injury.

…

But the only events which were relevant to the issue of self-defence raised by the charge of murder were those which immediately preceded the fatal blow.  The direction was likely to be misleading in these circumstances, because the jury might well have taken the view that the appellant was precluded from the plea of self-defence because of his aggressive and violent behaviour earlier that evening.”

152.  What was said in Burns about the impugned direction was applied by the English Court of Appeal in R v Balogun[50] and R v Rashford.[51]  In the latter case, the Court of Appeal said:[52]

“We would agree that the mere fact that a Defendant goes somewhere in order to exact revenge from the victim does not of itself rule out the possibility that in any violence that ensues self-defence is necessarily not available as a defence.  It must depend on the circumstances.  It is common ground that a person only acts in self-defence if in all the circumstances he honestly believes that it is necessary for him to defend himself and if the amount of force that he uses is reasonable.  This is reflected in the specimen direction in volume 1 of the Judicial Studies Board Bench Book at para 48.  The direction adds in parenthesis:

‘Add as appropriate; a person who [is the aggressor] [acts in revenge] [knows he does not need to resort to violence] does not act in lawful self-defence.’

No doubt for this reason it is common to find in a summing-up a direction such as in the present case that a person who acts in revenge does not act in self-defence.  But in our judgment it is important to bear in mind the salutary opening words of this part of the direction, namely ‘Add as appropriate’.”

Subsequently the Court said:

“There may be a temptation whenever it is open to a jury to conclude that the Defendant went to an incident out of revenge or was the aggressor to direct the jury that if they reach that conclusion then self-defence cannot avail the Defendant.  But if the judge wishes to give a direction along these lines the facts will usually require something rather more sophisticated where the possibility exists that the initial aggression may have resulted in a response by the victim which is so out of proportion to that aggression as to give rise to an honest belief in the aggressor that it was necessary for him to defend himself and the amount of force that he used was reasonable.”

153.  Later, in rejecting counsel’s submission that the direction was accurate, the Court pointed out[53] that the judge did not direct the jury that, if they concluded that the appellant was the aggressor “throughout”, it could not follow that he honestly believed it was necessary to defend himself.  The court regarded the omission of that word from the summing-up as crucial.

154.  In similar vein R v Howard,[54] the New Zealand Court of Appeal held that there was a misdirection when the trial judge had directed the jury that:

“The law does not protect a person from the consequences of acting out of revenge, or retribution, or spite, or anger.”

Of this direction, the court said:[55]

“[Self-defence] cannot solely take the form of retaliation for past grievances.  But it may well be the case that someone who is angry or spiteful may also fear a future assault.” 

155.  It follows from the statements quoted in the cases to which we have referred that trial judges should take great care before resorting to a direction that excludes from the scope of self-defence an aggressor, a person who acts out of revenge or retaliation or in spite or anger.  A direction in such terms may be too absolute.  As Rashford and Howard respectively indicate, if a judge considers a direction of this kind to be appropriate, it may well be advisable to frame it in terms which give emphasis to “aggressor throughout” or “acting solely out of”.  What is an appropriate direction naturally depends on the circumstances to which it is tailored.

156.  We agree also with the comment made in Rashford that, if a judge is minded to give a direction along the lines that self-defence cannot avail a person who acts out of revenge [or retaliation] or was the aggressor, the facts will usually, if not almost always, require a more sophisticated direction which is tailored to the facts.

157.  In this respect, we repeat what has been said before from time to time.  The trial judge’s function in instructing juries in his summing-up is:

(1)  to identify the issues for the jury’s determination;

(2)  to explain to the jury how the law applies to the facts of the particular case; and

(3)  to put the contentions of the respective parties clearly and fairly to the jury – which will involve relating the contentions to the evidence in the case.

158.  It is not the trial judge’s function to engage in a discourse about the law.  The only law the jury needs to know is so much as is necessary to guide it to a decision on the issues for determination.[56]

159.  Against this background, we turn to the argument presented on behalf of the appellant.  In our view, it was not appropriate in this case to give the particular direction about “a person who is in reality the aggressor, or who injures another as an act of revenge or retaliation”.  In view of the central issue thrown up by the starkly conflicting cases presented by the prosecution and the defence, it was a matter of deciding between the prosecution case of premeditated murder and the defence case of self-defence from a violent assault accompanied by a threat to kill.  The trial judge would have been better advised to have omitted the sentence complained of.  As it was, the sentence appears to be no more than an abstract proposition of law, unrelated to the facts.

160.  Otherwise the critical directions on self-defence in the form of the two specific questions framed by the judge, related to the facts, as they were, were impeccable.  There is no reason to think that the jury would have been diverted from confining their consideration of self-defence to the specific questions so identified and explained to them.

161.  And all the more so when the jury had with them in the jury room the written directions which were handed to the jury by the judge.  In the written directions the impugned sentence was omitted.

162.  Moreover, the judge had, at the beginning of his summing-up, after saying that he was about to give a direction of law in relation to murder (which included self-defence and provocation) told the jury:

“… But let me tell you this, that I intend that you should have this either in transcript form or at least in writing before you retire to consider your verdict, so do not feel it necessary to take detailed notes.”

163.  At the close of the summing-up, the judge told the jury he was going to honour his promise to give them in writing “the parts of law of the oral directions … in respect of murder, self-defence and provocation”.  The content of the written directions and the circumstances in which the jury’s attention was drawn to them reinforce the view that the jury’s attention was not diverted from a proper consideration of the only two questions for their consideration, identified in relation to self-defence.

164.  The same applies to another comment made later in the summing-up in the context of the judge’s summary of the defence case.  In stating that the appellant’s account of the violent quarrel on 2 November 2003 included her saying that she had picked up the ornament and gone back to Robert Kissel, the judge interpolated:

“Members of the jury, you have to ask yourself what was her purpose in doing that.  You may think that the small but very heavy ornament is not a weapon suitable for defence but that it is suitable for use in attack or offence, but that is a matter for you to consider.”

165.  Mr McCoy SC relied on this passage in combination with the earlier direction on aggression, revenge and retaliation to suggest that the jury might have asked themselves whether, when she picked up the ornament after she saw the deceased with the baseball bat, she did so with the intent of attacking the deceased, thereby becoming an aggressor so as to become ineligible to avail herself of self-defence, regardless of what subsequently happened on her version of events.

166.  In our view this is an imaginative but unreal hypothesis.  Here the central issue on the evidence involved a clash of two starkly opposed versions of what happened in the Parkview apartment around 5:15 pm to 6:15 pm on 2 November 2003.  Was it a case of planned, premeditated murder of a drugged and defenceless victim or was it a case of self-defence from an attack by a violent, abusive husband who threatened to kill the defendant?  The evidence, the addresses of counsel and the thrust of the summing-up were all directed to that central issue.  No one ever suggested to the jury the possibility that the imaginative hypothesis conjured up by Mr McCoy SC might have arisen.

167.  Mr McCoy SC seeks to reinforce his argument by pointing out that the case involved a defence of provocation as well as self-defence and by submitting that, in such a case, the direction on aggression, revenge and retaliation is necessarily inappropriate because provocation bespeaks anger, which in turn invites speculation about aggression, revenge and retaliation.  Again this submission must be rejected; it has no basis at all in the way the case was conducted and presented to the jury.

168.  It follows that the third ground of appeal is not made out.

169.  As the appellant has succeeded on the first and second grounds argued on her behalf, it is necessary to consider the proviso.

Proviso

170.  The respondent submits that in any event the proviso should be applied in the present case to uphold the conviction.  The test for the application of the proviso is well established: Whether a hypothetical reasonable jury, properly instructed, would on the evidence without doubt convict or would inevitably come to the same conclusion.[57]  The hurdle laid down by the test is a high one.  In our view, although the prosecution’s case is a strong one, the test is not satisfied here.  It cannot be concluded that a hypothetical reasonably jury, properly instructed, would on the evidence without doubt convict the appellant of murder or would inevitably come to the same conclusion.

Disposal

171.  Accordingly, the appellant’s conviction should be quashed.  It is plainly in the interests of justice that there should be a retrial.  We so order and that the appellant be remanded in custody pending retrial.  Any application by the appellant for bail should be made to the Court of First Instance. 

172.  As to costs we give the following directions.  The appellant should file any submissions within 28 days; the respondent may file submissions in response within 28 days thereafter; and the appellant may file submissions in reply within 14 days thereafter. 

Mr Justice Bokhary PJ:

173.  Trial by jury of the most serious cases has long been a cherished tradition of our criminal justice system.  It now enjoys constitutional entrenchment by virtue of art.86 of the Basic Law.  Entrusting issues of fact to a jury has a multitude of advantages.  But it is at the same time attended by a number of risks.  Our courts are always intensely concerned to see that those advantages are fully realised while those risks are avoided or at least reduced to a manageable level.  Clear and accurate directions by the judge to the jury are very much a part of such risk avoidance or management.  So are the exclusionary rules of evidence.  It is sometimes said that those rules are predicated on very limited faith in the ability of jurors not to misuse evidence that is probative for one purpose but would be dangerous if used for another purpose.  But there is another – and perhaps far more acceptable – rationale for those rules.  It is due recognition of the fact that, since jurors do not give reasons for their verdicts, it is not possible to ascertain whether they have confined such evidence to its proper use.  So it is perhaps far more a matter of process than of personnel.

174.  Writing with the weight of unsurpassed experience at the bar and on the bench in the administration of criminal justice, Sir Travers Humphreys gave (in A Book of Trials (1953) at p.17) three examples of the things that account for wrongful convictions at jury trials.  Of these examples, the first is “a confusing, and therefore unfair, presentation of the case for the prosecution”.  The law rightly sets a high standard as to the purity of the evidence that the prosecution is allowed to place before a jury and as to the clarity with which the prosecution’s case must be put to the jury.  Now let us, with all of that kept carefully in mind, turn to the circumstances of the present case. 

175.  The appellant Mrs Nancy Kissel stands convicted of having murdered her husband Mr Robert Kissel.  He was lucratively employed in the financial sphere.  She was a housewife active in voluntary work.  They, together with their three young children and two domestic helpers, used to live in a flat in the Parkview complex.  In the late afternoon or early evening of Sunday 2 November 2003, while they were alone in the flat, she killed him.  He died from one or more of at least five heavy blows to his head with a lead ornament weighing close to 3.7 kilograms.  The prosecution’s case is based essentially on circumstantial evidence.  It is that Mrs Kissel desired her husband’s death, planned to kill him, drugged him into an unconscious or befuddled state by introducing noxious substances into a milkshake which she had made for him, and then battered him to death.  The killing was, the prosecution says, murder.  As for the defence case, it is based essentially on Mrs Kissel’s testimony.  It is that she was an abused wife, that the fatal incident involved yet another attack upon her by a depraved and violent husband, and that she acted in self-defence.  So, the defence says, she is not guilty of any crime. 

176.  On any view, the case is a tragic one.  There are three young children whose father is dead at the hands of their mother.  The nature of the prosecution’s case has made it necessary for them to stress Mrs Kissel’s marital infidelity.  And the nature of the defence’s case has, in turn, obliged them to make some highly unpleasant allegations against the late Mr Kissel.  Circumstances do not permit total silence on the ugly things which have been said about Mr and Mrs Kissel.  But reference to such things should be kept to a minimum.  This appeal cannot be decided by making a saint of one spouse while demonising the other, whichever way round that is urged.

177.  At the conclusion of her trial which lasted 66 days before Mr Justice Lunn and a jury in the High Court, Mrs Kissel was on 1 September 2005 convicted of murder by a unanimous verdict reached after eight hours’ deliberation.  She received the sentence of life imprisonment that our law prescribes for the crime of murder.  The matter then went to the Court of Appeal.  Her conviction was affirmed by that court (Mr Justice Stuart-Moore VP, Mr Justice Stock JA and Mr Justice Wright) on 6 October 2008. 

Appeal on three grounds

178.  Criminal appeals to this Court may be brought under either or both limbs of s.32(2) of the Court’s statute, commonly called the “point of law” limb and the “substantial and grave injustice” limb respectively.  The former is for the resolution of any real controversy over points of law of great and general importance.  As for intervention under the latter, the test was laid down by us in So Yiu Fung v HKSAR (1992) 2 HKCFAR 539 at p.543E-H, and has been applied ever since.  It is as follows :

“Reviewing convictions to see if they are safe and satisfactory is entrusted to the intermediate appellate court.  If the matter proceeds further to this Court, our task does not involve repeating that exercise.  We perform a different one.  In order for an appeal brought under the ‘substantial and grave injustice’ limb … to succeed, it must be shown that there has been to the appellant’s disadvantage a departure from accepted norms which departure is so serious as to constitute a substantial and grave injustice.”

179.  With leave granted by the Appeal Committee, Mrs Kissel now appeals to this Court on three grounds.  The first rests on two bases, namely (i) a point of law of great and general importance and (ii) a complaint of substantial and grave injustice.  It arises thus.  Before the trial, Mrs Kissel applied for (and obtained) bail.  At the trial, prosecuting counsel (not Mr Kevin Zervos SC) cross-examined Mrs Kissel on the submissions, the affidavit evidence and the psychiatric assessments and reports put forward on her behalf at the bail hearing.  That evidence was from her solicitor and her sureties.  The trial judge overruled the defence’s objection to such cross-examination.  He was of the view, which the Court of Appeal shared, that cross-examination on bail materials is permissible for the purpose of impugning an accused person’s credibility.  The point of law of great and general importance under this ground is the defence’s point that such cross-examination is not permissible even for that limited purpose.  And the complaint of substantial and grave injustice under this ground is that the cross-examination of Mrs Kissel on bail materials was objectionable in that it (i) strayed beyond impugning credibility to include establishing incriminating facts and (ii) proceeded on a false premise so as to be unfair.

180.  In answer to the complaint made under the first ground, the prosecution submits as follows.  The matters on which Mrs Kissel was liable to be cross-examined for the purpose of impugning her credibility include her state of mind, any previous inconsistent statements made by her and opinions expressed by others as to her state of mind.  She was liable to be cross-examined on such matters even though they were contained in bail materials.  Prosecuting counsel’s cross-examination of her on bail materials was confined to impugning her credibility, and was soundly based.

181.  The second ground rests on one basis only, namely a complaint of substantial and grave injustice.  This ground arises in this way.  With the permission of the trial judge who overruled the defence’s objection to such a course, the prosecution called witnesses to testify that Mr Kissel had told them that he suspected Mrs Kissel of trying to poison him.  It is submitted on Mrs Kissel’s behalf that such testimony was hearsay and therefore inadmissible.  Alternatively, it is submitted on her behalf that even if such testimony was probative evidence, it should nevertheless have been excluded as more prejudicial than probative.

182.  In answer to the complaint made under the second ground, the prosecution submits as follows.  The testimony in question went to Mr Kissel’s state of mind, knowledge and intention in relation to the state of the marriage and his relationship and dealings with Mrs Kissel.  Those were facts in issue.  The state of the marriage and the level of mistrust between Mr and Mrs Kissel were central issues.  So much so that the testimony concerned was so probative that its probative value was not exceeded by any prejudicial effect.

183.  Like the second ground, the third ground rests solely on the basis of a complaint of substantial and grave injustice.  It arises in this way.  A person who acts in self-defence does not act unlawfully.  When directing the jury on self-defence, the trial judge saw fit to tell them that a person who is “in reality the aggressor” acts unlawfully.  It is submitted as follows on Mrs Kissel’s behalf.  The jury having been told that a person who is in reality the aggressor acts unlawfully, they should also have been told that even an initial aggressor might later be acting in self-defence.  Since the trial judge did not add that, the directions on self-defence were incomplete.

184.  In answer to the complaint made under the third ground, the prosecution submits as follows.  There was no evidential basis for a direction that even an initial aggressor might later be acting in self-defence.  The defence had been properly summed-up by the trial judge for the jury.

Cross-examination on bail materials

185.  Cross-examination was described by Dean J H Wigmore as “the greatest legal engine ever invented for the discovery of truth”.  My acquaintance with this description – which is widely known throughout the common law world – was renewed when I happened to come across it recently in 5 Wigmore on Evidence (Chadbourne revision 1974) §1367 at p.32.  (Although that revision is not the latest one, it is nevertheless sufficient for present purposes.)  Something else on that page caught my attention, namely the warning that “[i]t may be that in more than one sense [cross-examination] takes the place in our system which torture occupied in the medieval system of the civilians”.  Although realistically to be regarded as more apt merely to expose falsehood than actually to discover truth, cross-examination is undeniably central to the trial process. 

186.  As explained by the Court for Crown Cases Reserved in The Queen v Payne (1872) LR 2 CCR 349, it had been the common law from the earliest times that since no one is bound to incriminate himself or herself, a person on trial could neither be examined nor cross-examined.  The choice of whether or not to testify was conferred on accused persons by statute in relatively recent times.  Keeping cross-examination within the bounds of fairness is especially important when the person being cross-examined is the one on trial.  Persons on trial are especially unlikely to do themselves justice while under the torment of unfair cross-examination.  Such unfairness puts both the manner and the matter of their testimony in highly objectionable jeopardy.  It turns their opportunity to enter the witness-box from a right into a decoy.

187.  At this trial, as is common, the critical stage was the cross-examination of the accused person.  For what purpose was Mrs Kissel cross-examined on bail materials?  According to the Court of Appeal, such cross-examination

“was designed to illustrate a material contrast between [Mrs Kissel’s] mental condition and history put forward on her behalf at the bail proceedings in November 2004 and the picture she sought to convey to [Dr CK Wong] as well as to the court in her examination-in-chief; all this to give the lie to the factual assertions that underpinned the defence of diminished responsibility and to the allegations of attempted suicide”.

It should be explained that Dr C K Wong is a psychiatrist who interviewed Mrs Kissel on 13, 20 and 28 January and 1 and 8 February 2005.  On 13 May 2005 a report by Dr Wong on Mrs Kissel was served on the prosecution by the defence.  That report, the Court of Appeal observed, “covers 73 pages of [Mrs Kissel’s] account of her marriage and the circumstances of the killing of her husband as well as Dr Wong’s conclusions”.  Dr Wong was not called as a witness.  As summarised by the Court of Appeal, Dr Wong’s conclusions as stated in his report were that

“1) before and at the time of the killing, [Mrs Kissel] was suffering from Major Depressive Disorder;

2) at the time of the killing, and for some time thereafter, she probably suffered disassociative amnesia;

3) after the killing she likely suffered from disassociative fugue, lasting for a few days; and

4) at the date of his report, she required treatment for Major Depressive Disorder.”

(By “disassociative” the Court of Appeal presumably meant “dissociative”.)

188.  The question of amnesia arose in this way.  As to what Mrs Kissel did after the killing, the prosecution’s case, as summarised by the Court of Appeal, is that she

“set about trying to conceal what she had done.  She eventually wrapped the body in a sleeping bag, a carpet and in plastic using towels to cover the head wounds.  The whole parcel was tied together with a combination of rope and adhesive tape and a number of cushions were attached to the outside before the Parkview staff were asked to remove the package to a storeroom.  She also made up stories to explain [Mr Kissel’s] absence from home and work.”

On 6 November 2003 Mrs Kissel made a report to the police, saying that Mr Kissel had disappeared after assaulting her on 2 November 2003.  The police conducted inquiries.  On 7 November 2003 they discovered Mr Kissel’s body in a storeroom in the Parkview complex.  Mrs Kissel testified that she had no recollection of wrapping up the body and having it taken to the storeroom.  The prosecution contended that Mrs Kissel was pretending not to have any recollection of that, so pretending in order to avoid having to explain it. 

189.  In what way was Mrs Kissel’s psychiatric condition regarded as relevant to the question of bail?  On 1 November 2004 Mr Justice Burrell heard her application for bail pending trial.  At the time she was in custody at the Siu Lam Psychiatric Centre.  Mr Justice Burrell began by asking why she was at a psychiatric centre.  And everything which Mrs Kissel’s then leading counsel Mr John Griffiths SC put forward about her psychiatric condition was directed to showing that she was not suffering from any mental abnormality that rendered her a danger to herself or others so as to militate against her being released on bail.  One of Mrs Kissel’s answers under cross-examination on bail materials is this : “It may be [the psychiatrist Dr C H Yuen’s] opinion that my memory loss is not suggesting that I have a psychiatric condition enough to be released or not to be released from prison”.  Although she did not make it as clearly as she might have done under less stressful circumstances, her point is a valid one.  Memory loss is not a ground for keeping people locked up.

190.  Contrary to the Court of Appeal’s view, there was no material contrast between Mrs Kissel’s mental condition as put forward at the bail proceedings and as conveyed to Dr Wong and to the trial court.  Yet Mrs Kissel was strenuously cross-examined at length and accused of lying on the footing that such contrast existed.  Where two things are not really at variance but a skilful and persistent advocate is given free rein to cross-examine as if they were wholly at variance, the witness is liable wrongly to be made to appear shifty or worse.  By its content and duration, this cross-examination was highly unfair in its effect.  And there is a real danger that such unfairness brought about the conviction or at least contributed materially to it. 

191.  What impression might this cross-examination have created?  Some of the questions were so bad as to make Mrs Kissel’s answers appear (in print at least) to be relatively good.  But it cannot be assumed that she was not harmed.  Her intelligence may have favourably impressed the jury, or they may have thought her too clever by half.  The cross-examiner indulged in comment.  Questions were repeated again and again after they had been answered.  The unfair cross-examination went on repetitively and not for hours but for days.  It was interrupted by defence objections which should have been upheld but were overruled.  Apart from one, every ruling went against the defence.  Some of the defence’s objections and the trial judge’s rulings against those objections were made in the presence of the jury.  Even where the rulings against the defence were made in the jury’s absence, it must have been obvious to them, once the challenged questions were repeated upon their return, that the trial judge considered the questions to be legitimate.  By the time Mrs Kissel answered, therefore, the atmosphere was unfavourable to her. 

192.  The one ruling which did not go against the defence involved the trial judge inviting prosecuting counsel to reconsider his position.  That invitation was made in the absence of the jury.  When the jury came back, the question was not repeated.  But it was not expressly withdrawn.  Nor were the jury directed to ignore it.  Leaving the question unanswered without telling the jury to ignore it was confusing and might have been as harmful as, if not more harmful than, making Mrs Kissel answer. 

193.  This was, in its effect even if not in its purpose, an oppressive cross-examination against a woman – shown on the transcript to have been in a highly emotional state – on trial for murder.  It is not acceptable.

194.  Sometimes any danger of unfairness to a person on trial can and is removed by instructions to the jury.  That did not happen in the present case.  Far from removing the unfair effect of the cross-examination on bail materials, the summing-up magnified it.  When dealing with Mrs Kissel’s testimony of memory loss, the trial judge said this to the jury :

“The defendant accepted that she had made an application for bail pending trial on 1 November 2004 and that she was represented by Mr John Griffiths of Senior Counsel, whom she accepted had said, on behalf of her three prospective sureties, that they said, in respect of the defendant, ‘There is no question of any psychiatric problem’; they all say, ‘She is perfectly normal and the woman that she was, save for some emotional debility’”.

Quite apart from anything else and even if Mr Griffiths’s advocacy amounted to admissions by Mrs Kissel, it was wrong to say, as the judge put it, that Mr Griffiths had spoken on behalf of the sureties.  Putting it like that might have given the jury the impression that Mr Griffiths had received information from the sureties.  There was no evidence that he had.

195.  Was the prosecution suggesting that Mrs Kissel’s testimony at trial of memory loss was a recent fabrication?  I do not consider it necessary to arrive at a definite answer to this question since I think that the complaint of substantial and grave injustice under the first ground is made out whether or not the prosecution was suggesting recent fabrication.  But I will, in order to sound a note of caution for the future, say as follows.  The prosecution relied on – and sought to make much of – the fact that no mention of memory loss on Mrs Kissel’s part was made when she applied for bail.  Indeed, the prosecution’s stance was that Mr Griffiths’s assertion at the bail application that Mrs Kissel was psychiatrically normal positively ran counter to the notion of memory loss on her part.  From the very nature of such reliance and such stance, it might be thought that the prosecution’s point was that what Mrs Kissel said at the trial about memory loss was something which she fabricated after the bail application.  Moreover prosecuting counsel may be thought to have made that point expressly in his closing speech to the jury when he said this : “Her claims of selective memory loss now is simply more evidence of an attempt to avoid the incriminating nature of the cover-up of the fact that she had killed her husband”.  Note the word “now”. 

196.  As explained in Archbold Hong Kong (2010) at p.753, previous consistent statements are admissible to rebut suggestions of recent fabrication.  That is so even if, as in The Queen v Martin (1996) 86 A Crim R 198 decided by the Court of Criminal Appeal of South Australia, the suggestion is only implicit.  In the present case it might be thought that the suggestion was implicit in cross-examination and explicit in closing speech.  If there had indeed been such a suggestion, then a vital point for the defence in meeting the suggestion arose out of the testimony of Mrs Geertruida (or Trudy) Samra about a conversation with Mrs Kissel at the Siu Lam Psychiatric Centre.  Mrs Samra was a defence witness.  Her evidence-in-chief includes this :

“Q. Did there come a time during the course of that year of your visits when the subject of what had happened was raised?

A. One time when – very early in the days of Siu Lam when she was still very distressed and was assisted by the prison wardens because she couldn’t walk and she was shaking a lot, she asked me one time, which threw me off guard, she said to me, ‘Trudy, how is Rob?’  And I was shocked, because I didn’t know what to say in a way, and I said, ‘Honey, Rob has gone.  You know that, right?’  And she said, ‘I don’t know, I can’t remember much.’  That was the only time she referred to Rob during Siu Lam.

Q. Are you able to tell us how long, in your recollection, she had been in Siu Lam when she made that remark to you?

A. Early, early, probably the first week, the first 10 days or so, very early in the beginning, maybe the first two, three days, but very early on.”

Prosecuting counsel did not suggest to Mrs Samra that no such conversation took place.  The following appears in the transcript of his cross-examination of her :

“Q. … Now, you’ve suggested in your evidence that, at some stage, Nancy Kissel spoke to you and said, ‘Where’s Rob?’  Is that right?

A. That’s right.

Q. And when was that?

A. That was the very early days when I visited her in Siu Lam and she was still in a very distressed state.

Q. And that she went on to say either on that visit or a subsequent visit, ‘Pieces are missing.’  ‘There are missing pieces.’  Something like that?

A. It wasn’t during the same visit because we were only allowed to stay 15 minutes and we usually talked about the children.  I think it was one or two visits afterwards.

Q.   And did that give you cause for concern?

A.   I was concerned for her at that time.

Q.   As to her mental state?

A.   As to her recollection.

Q.   Well, she was asking where her dead husband was.

A.   Yes.”

197.  So Mrs Kissel had given an indication of memory loss prior to her bail application.  When referring to Mrs Kissel’s question “Trudy, how is Rob?”, the trial judge did not emphasise, or even acknowledge, the vital point for the defence to which that question would give rise for the purpose of meeting a suggestion of recent fabrication.  Instead, as we have seen, he ranged Mrs Kissel’s sureties against her on the question of memory loss.  That was particularly unfortunate on any view and whether or not recent fabrication was suggested.  Mrs Samra was one of Mrs Kissel’s sureties.  And prosecuting counsel, using the transcript of the bail proceedings, had put the following question to, and obtained the following answer from, Mrs Kissel :

“Q. There’s no suggestion in any of those passages that [Mr Clarke], or your three good friends detected any problem with you, Mrs Kissel, do you agree?

A.   Yes.”

It is true that no suggestion of memory loss appears in any of those passages.  But Mrs Samra was one of the friends referred to in that question.  And by the time when the trial judge summed-up, there was Mrs Samra’s testimony of Mrs Kissel’s question “Trudy, how is Rob?”.  In this connection, it is appropriate to mention the second example given by Sir Travers Humphreys (in his book referred to earlier) of the things that account for wrongful convictions at jury trials.  It is “a failure by the presiding judge to emphasise sufficiently a vital point for the defence”.  (Pausing here, it is only fair to mention (i) that Sir Travers Humphreys gave as his third example “a refusal to allow an adjournment, though applied for on reasonable grounds” and (ii) that nothing of the kind happened in the present case.)

198.  The complaint against the cross-examination on bail materials is sufficiently made out even on the foregoing basis alone.  And I do not propose to say anything about the other aspects of this complaint beyond expressing my respectful agreement with the interpretation placed on the bail provisions of the Criminal Procedure Ordinance, Cap.221, by the other members of the Court and with their view that there is no general prohibition against the use at trial of bail materials.

His suspicion that she was trying to poison him

199.  Matters adverse to accused persons may be purely probative, merely prejudicial or partly both.  The complaint under the second ground is against the calling of witnesses to testify that Mr Kissel had told them that he suspected Mrs Kissel of trying to poison him.  It is complained that this testimony was merely prejudicial or, at best, overwhelmingly more prejudicial than probative.  The witnesses concerned are Ms Bryna O’Shea (a family friend) and Mr Frank Shea (an inquiry agent engaged by Mr Kissel to inquire into Mrs Kissel’s liaison with another man).  Ms O’Shea testified that Mr Kissel half-jokingly told her that he suspected Mrs Kissel of trying to poison him.  Mr Shea testified that, upon Mr Kissel expressing such a suspicion to him, he advised certain precautions, which Mr Kissel declined to take. 

200.  Subject to the rules of exclusion designed to avoid wrongful convictions, evidence is admissible if of a probative nature.  Probative evidence is not inadmissible merely because it carries a risk of prejudice.  Jurors are commonly directed that they may take evidence into account for one purpose but must not take it into account for another purpose.  They are normally trusted to follow such a direction.  But it is recognised that there are circumstances in which that would be asking too much of them.  In the case of Krulewitch v United States 336 US 440 (1949) decided by the United States Supreme Court, Mr Justice Jackson’s concurring judgment includes the observation (at p.453) that “[t]he naive assumption that prejudicial effects can be overcome by instructions to the jury … all practicing lawyers know to be unmitigated fiction”.  That, depending on how you read it, may be going further than our courts go.  But it is at any rate certainly our law that the imperative of a fair trial subjects even probative evidence to a judicial discretion to exclude the same on the basis that it is more prejudicial than probative.  As was pointed out by the Chief Justice in Secretary for Justice v Lam Tat Ming (2000) 3 HKCFAR 168 at pp 178J-179A, a court’s overriding duty to ensure a fair trial invests the court with a judicial discretion to exclude even admissible evidence if doing so is necessary in order to secure a fair trial. 

201.  The courts have always sought to shield accused persons from prejudice.  Originally, however, it was only through their influence over prosecuting counsel that judges prevented (or endeavoured to prevent) prejudicial evidence from being placed before jurors.  The practice was described thus by Lord Moulton in The King v Christie [1914] AC 545 at p.559:

“The law is so much on its guard against the accused being prejudiced by evidence which, though admissible, would probably have a prejudicial influence on the minds of the jury which would be out of proportion to its true evidential value, that there has grown up a practice of a very salutary nature, under which the judge intimates to the counsel for the prosecution that he should not press for the admission of evidence which would be open to this objection, and such an intimation from the tribunal trying the case is usually sufficient to prevent the evidence being pressed in all cases where the scruples of the tribunal in this respect are reasonable.  Under the influence of this practice, which is based on an anxiety to secure for every one a fair trial, there has grown up a custom of not admitting certain kinds of evidence which is so constantly followed that it almost amounts to a rule of procedure.”

202.  By a process of development observable in the decisions of the Privy Council in Noor Mohamed v The King [1949] AC 182 and Kuruma v The Queen [1955] AC 197, the common law has advanced from that position.  In the former Lord du Parcq made it clear (at p.192) that there is a discretion to exclude “gravely prejudicial” albeit “technically admissible” evidence.  And in the latter Lord Goddard CJ said (at p.204) that “in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused”.

203.  The breadth of the Lord Chief Justice’s statement in Kuruma’s case is in keeping with our constitution.  As we recently stressed (in Kennedy v Cheng, FACV No.30 of 2008, 20 October 2009, at para.39), the right to a fair trial is guaranteed by the Basic Law (directly through art.87 and indirectly through art.39 entrenching art.10 of the Bill of Rights).  The essence of an accused person’s right to a fair trial was explained in the High Court of Australia by Chief Justice Mason and Mr Justice McHugh when they said in Dietrich v The Queen (1992) 177 CLR 292 at p.299 that it provides “an immunity against conviction otherwise than after a fair trial”.  We cited that in Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126 at p.133H for the “direct correlation between the fairness of a trial and the viability of a conviction”.  Indeed, as Mr Justice Ribeiro PJ for this Court explained in HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133 at p.150F-G, the courts would stay any prosecution in which fairness could not be achieved.  The only permissible form of trial is a fair one, and convictions are viable only when independent of unfairness.

204.  Of course even before one gets to the balancing exercise under which evidence may be excluded as more prejudicial than probative, the question of whether it is probative at all may arise.  Such a question must always be approached with care.  That is illustrated by the warning which Lord Sumner famously issued at the end of this passage from his speech in Thompson v The King [1918] AC 221 at p.232 :

“No one doubts that it does not tend to prove a man guilty of a particular crime to show that he is the kind of man who would commit a crime, or that he is generally disposed to crime and even to a particular crime; but, sometimes for one reason sometimes for another, evidence is admissible, notwithstanding that its general character is to show that the accused had in him the makings of a criminal, for example, in proving guilty knowledge, or intent, or system, or in rebutting an appearance of innocence which, unexplained, the facts might wear.  ……  Before an issue can be said to be raised, which would permit the introduction of such evidence so obviously prejudicial to the accused, it must have been raised in substance if not in so many words, and the issue so raised must be one to which the prejudicial evidence is relevant.  The mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose.  The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice.”

205.  In Subramaniam v Public Prosecutor [1956] 1 WLR 965 the testimony as to what somebody said was relied on by the accused person rather than by the prosecution.  Even so, the Privy Council did not confine themselves to declaring that such testimony is admissible evidence rather than hearsay when it is given to establish only the fact that the statement was made and not its truth.  Their Lordships explained precisely why the fact of the statement having been made was relevant and therefore probative in the particular circumstances of that case.  That illustrates how careful one has to be (i) when deciding whether to permit such testimony to be placed before a jury and (ii) in directing them on what use they can and cannot make of any such testimony.  Sometimes what use the jury can make of any given item of evidence will be obvious.  At other times that will have to be spelled out for them, especially when there is a danger of the evidence being put to impermissible use.

206.  Why were prosecution witnesses called to testify that Mr Kissel had told them that he suspected Mrs Kissel of trying to poison him?  The trial judge told the jury that such testimony was evidence

“only in respect of [Mr Kissel’s] belief of the state of the marriage; that is to say, what steps he took in relation to the marriage, believing that this to be the case – or at least asserting that he believed this to be the case”.

207.  So the trial judge thought – and the jury were directed by him – that the relevance of that testimony lay in what Mr Kissel believed and therefore did.  But that is not how the Court of Appeal saw it, for they thought that the relevance of that testimony lay in what Mrs Kissel believed and therefore did.  As to that, they said this :

“ Viewed in isolation, there is a feature of this case that might be said to stand against the prosecution’s case of premeditated murder.  It is the manner in which the killing is said to have taken place.  If, as was contended by the prosecution, it was [Mrs Kissel’s] plan to poison her husband, there existed less risky ways in which to do so.  For example, she might simply have drugged one of his drinks and handed it to him, ensuing that he and he alone consumed it.  Instead, the picture that emerged was of a milkshake laced with drugs and delivered to [Mr Kissel] not by [Mrs Kissel] herself but by one of the children and, moreover, delivered not only to [Mr Kissel] but also to a third person, [Mr Andrew Tanzer].

Those facts, viewed in isolation, posed any fact-finder with a conundrum.  There could be little doubt on the evidence that the mixture of drugs found in [Mr Kissel’s] stomach contained the same drugs as had been prescribed in the preceding days to the appellant for her own use.  Yet, against that powerful fact, combined with a number of others that provided a strikingly cogent case against [Mrs Kissel], stood this apparently odd feature, seemingly in her favour.”

They then said that Mrs Kissel must have chosen to drug Mr Kissel by lacing the milkshakes because she knew that he suspected her of trying to poison him.  Even assuming that such knowledge could properly be inferred, still it would be for the jury to decide whether or not to draw such an inference.  Mr Gerard McCoy SC for Mrs Kissel is right in saying that in this connection the Court of Appeal were usurping the function of the jury.

208.  Another problem with the Court of Appeal’s thinking on this part of the case emerges from their statement that “there is one irresistible inference which may safely be drawn, which is that by September 2003 and thereafter [Mr Kissel] must have taken the greatest care to avoid drinks offered to him by [Mrs Kissel]”.  The problem is that Ms Conchita Macaraeg, who had been one of the Kissel family’s domestic helpers and was called as a prosecution witness, said that in September 2003 Mrs Kissel made coffee for Mr Kissel every morning.  If for no other reason, that hole in the Court of Appeal’s “drinks avoidance” theory should be mentioned out of fairness to the trial judge who wisely refrained from floating any such theory when directing the jury.

209.  The Court of Appeal concluded their judgment on this part of the case by saying that “[g]iven the relevant purpose for which [the testimony was] admissible and given also the fact that [Mrs Kissel] admitted lacing [Mr Kissel’s] drink in late August 2003, [they did] not agree with [her counsel’s] contention that the prejudicial effect of the testimony outweighed its probative value”.  It is vital that Mrs Kissel’s so-called admission of lacing Mr Kissel’s drink be seen in context.  What she said about lacing his drink was that she had done so in order to calm him down.  Far from being consistent with the prosecution’s case that she was a scheming murderess, her testimony in this regard is consistent with the defence’s case that she was an abused wife who ultimately killed her husband in self-defence.

210.  This part of the prosecution’s case is now in confusing disarray.  The jury were directed that the testimony of the witnesses who said that they had heard Mr Kissel say that he suspected Mrs Kissel of trying to poison him was relevant for one purpose while the Court of Appeal thought that it was relevant for a different purpose, not being one left by the trial judge to the jury for their consideration.  In truth the testimony in question was hearsay and therefore not probative at all.  Evidence as to the state of the relationship between the deceased and the person accused of murder may be admissible.  But as the decision of the New South Wales Court of Criminal Appeal in The Queen v Frawley (1993) 69 A Crim R 208 shows, that does not make it permissible to place suspicion of this kind before a jury.  Mr McCoy rightly relies heavily on Frawley’s case.  As for The Queen v Phillips [2003] 2 Crim App Rep 528, the relationship evidence held admissible by the English Court of Appeal in that case did not include such suspicion.  Another decision of the New South Wales Court of Criminal Appeal which has been shown to us is The Queen v Clark (2001) 123 A Crim R 506.  Clark’s case is reported as having distinguished Frawley’s case, but has not rendered that earlier case any less persuasive.  Mr Zervos seeks to place heavy reliance on Clark’s case, but has not managed to extract from it any statement of principle or illustration of principle that is of assistance to us in deciding the present appeal.  And that was not for want of trying, or want of ability, on Mr Zervos’s part.

211.  So the testimony that Mr Kissel was heard to say that he suspected Mrs Kissel of trying to poison him was mere hearsay and therefore not probative at all.  But even if that testimony was probative to some extent, it would be so much more prejudicial than probative that it had to be excluded because not excluding it would render a fair trial for Mrs Kissel impossible.  It is plain that the only proper exercise of discretion would be one by which that testimony was excluded. 

212.  Great as the prejudice already was, it was greatly added to by prosecuting counsel’s closing speech.  As to Ms O’Shea’s testimony, he said that although Mr Kissel’s statement that he suspected Mrs Kissel of trying to poison him appeared to Ms O’Shea at the time to have been said half-jokingly, it turned out to be prophetic.  And as to Mr Shea’s testimony, he said that Mr Kissel’s failure to act on Mr Shea’s advice might have cost Mr Kissel his life.  In between saying those two things and perhaps even more harmfully although less emotively, prosecuting counsel said that Ms O’Shea and Mr Shea’s testimony demonstrated that by September Mrs Kissel had begun to employ drugs against Mr Kissel.  Each of those three points urged upon the jury by prosecuting counsel necessarily proceeded on the footing that what Mr Kissel was said to have said that he suspected was true.  Rightly, the trial judge did not take up those points.  Nor, unfortunately, did he tell the jury to ignore them.  In the result, the miasma of those impermissible points was left to hang over the jury’s deliberations.

Self-defence becoming available to an initial aggressor

213.  Turning to the third ground, the complaint thereunder is against the trial judge’s failure to tell the jury that self-defence can be available to an initial aggressor (or “original aggressor” which is how the High Court of Australia put it in Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 at p.663).  As Lord Justice General Hope (later Lord Hope of Craighead), delivering the judgment of the High Court of Justiciary, said in Burns v Her Majesty’s Advocate [1995] SLT 1090 at p.1093H, it “is not accurate to say that a person who kills someone in a quarrel which he himself started, by provoking it or entering into it willingly, cannot plead self defence if his victim then retaliates”.  The jury must consider whether the accused person was “the aggressor throughout” (to borrow the expression used by Lord Justice Otton at the end of the judgment given by him for the English Court of Appeal in The Queen  v Balogun [1999] EWCA Crim 2120).  Speaking for that court in The Queen v Rashford [2005] EWCA Crim 3377, Lord Justice Dyson said this at para.21 : “The important word ‘throughout’ is missing from the summing-up.  We regard this as a crucial omission”.  As the New Zealand Court of Appeal noted in The Queen v Howard (2003) 20 CRNZ 319 at p.325, anger and spite do not necessarily preclude self-defence.

214.  The circumstances relevant to this complaint are to be found in Mrs Kissel’s account of how she came to pick up the fatal ornament consisting of a base-plate and two figurines.  Mr Kissel was described in the summing-up as “a well-built, athletic man of about 40 years of age, 180 centimetres and 69 kilograms”.  Mrs Kissel was, the trial judge said, “a relatively slightly built woman”.  At the trial two years after the killing, she gave her age as 41.

215.  Mrs Kissel’s account may be outlined as follows.  Holding a baseball bat, Mr Kissel announced that he was going to divorce her and seek custody of their children.  She questioned him about the baseball bat.  He told her that it was to protect him from her in case she became angry and attacked him.  She then paced back and forth.  Thinking about the baseball bat which he had told her was for his protection from her, she picked up the ornament and went towards him.  (Mr McCoy spoke of her “storming down the corridor”, which is not how she put it but could be how the jury saw it.)

216.  Berating him over the proposed course which he had announced, she wagged a finger in his face.  He grasped her arm.  She spat in his face.  He struck her across the mouth.  She fell down, dropping the ornament.  He dragged her into the bedroom.  There he attempted to perform anal intercourse on her (something which she said he had often forced on her in the past).  She resisted, and kicked him so that they both ended up on the floor.  As she crawled away, he dragged her back by the ankles, saying that he had not finished with her yet.  In the ensuing struggle, she reached for the ornament, and swung it back without looking.  She felt that she had hit something.  He let go of her.  Turning around, she saw him sitting on the floor.  His head was bleeding.  Refusing her offer of help, he pulled himself up on to the bed and sat on it.  Touching his head and discovering that it was bleeding, he said that he was going to kill her.  Picking up the baseball bat, he struck her on the knee with it.  Falling down, she picked up the ornament.  She swung it at him, striking his leg.  The struggle proceeded with her using the ornament and him using the baseball bat, he saying repeatedly that he would kill her.  She was beaten to the floor.  He descended upon her as she held the ornament in front of her face.

217.  Having got to that point of her testimony, Mrs Kissel was asked by her counsel at trial Mr Alexander King SC to continue with her description of events.  Whereupon she paused for a long time and then, shaking her head, said “I don’t remember”.  She accepts, however, that she killed Mr Kissel.  The medical evidence shows that he received at least five heavy blows to his head and died from one or more of those blows.

218.  At about 9 o’clock in the morning after the evening of the fatal incident, Mrs Kissel went to see Dr Annabelle Dytham.  Called by the defence, Dr Dytham gave evidence of the injuries which she saw on Mrs Kissel when she examined her on that occasion.  The injuries which Dr Dytham said that she saw on Mrs Kissel were : bruising and redness to the thumb and the first finger of each hand; puncture wounds on the inner creases of the right hand; bruising in fingerprint patterns on the inner aspect of the right wrist up to the elbow; a bruise on the inner side on the right thigh; what might have been carpet burns on both knees, it being possible that the injury to the right knee was a graze; a bruise over the right shin; a bruise on the ankle; and a bruise on the lower left leg.  As to the injuries to Mrs Kissel’s knees, Dr Dytham gave evidence which was neutral in its overall effect.  She said that the knee injuries could have been caused while Mrs Kissel was pushing and pulling Mr Kissel’s body as she knelt on the carpet but were also consistent with Mrs Kissel having been pulled across the carpet during the fatal incident.

219.  On 5 November 2003 Mrs Kissel was seen by her father upon his arrival in Hong Kong, he having flown here from the United States in response to a telephone call from her on the 3rd of that month.  He testified that she was wearing a strap around her waist and had a split lip.

220.  The trial judge directed the jury that a person who is “in reality the aggressor” acts unlawfully.  But he omitted either to qualify the word “aggressor” with the word “throughout” or to add that even an initial aggressor might later be acting in self-defence.  That omission might not have mattered if he had summed-up purely from the facts to the law by simply telling the jury that they could not convict Mrs Kissel if they thought that her account of the fatal incident was or might be true.  But the closest that he came to giving them such a direction was when he said this : “If you accept her testimony that, although she killed [Mr Kissel], she did so in lawful self-defence, or if you think that that evidence may be true, then of course, you would acquit [Mrs Kissel].”  The inclusion there of the word “lawful” begs the question or at least creates uncertainty.  What would be lawful?  For that, the trial judge moved on to sum-up from the law to the facts.  Summing-up from the law to the facts is not of itself open to criticism.  Indeed, it is common.  But it does mean that the directions to the jury on the law of self-defence had to be clear, accurate and complete.

221.  As the High Court of Australia pointed out in Alford v Magee (1952) 85 CLR 347 at p.466, “the only law which it [is] necessary for [the jury] to know [is] so much as must guide them to a decision on the real issue or issues in the case”.  Judges are well aware that they should not burden a jury with pointless directions, for such directions are likely to confuse them.  And judges are equally aware that jury directions should be tailored to the relevant circumstances of each case.  It is of course hardly to be imagined that jurors expect to receive pointless and irrelevant directions.  Moreover the last thing which the trial judge did before turning from the law to the evidence was to tell the jury in terms that the directions of law which he had given them were the ones which he was “required” to give them.  So why did the trial judge direct the jury that a person who is in reality the aggressor acts unlawfully?  The jury would naturally have asked themselves that question.  How might they have answered it for themselves?  The direction, being on the law of self-defence, could not possibly have applied to the prosecution’s case of the planned murder of a drugged and unconscious or semi-conscious husband by an unfaithful wife with an avaricious eye to the matrimonial fortune.  It could only have applied to the defence’s case of self-defence in the course of a struggle.  Which part of it?

222.  It must have been to the part where Mrs Kissel accepted that she armed herself with the fatal ornament and then went towards Mr Kissel after and despite his having made it clear to her that, far from intending to attack her, he so feared an attack by her that he had taken up a baseball bat for his own protection.  The trial judge told the jury that they had to ask themselves for what purpose Mrs Kissel had picked up that ornament and gone towards Mr Kissel.  And then the trial judge made an observation which strongly suggested that her having done that made her the aggressor, saying this to the jury :

“You may think that the small but very heavy ornament is not a weapon suitable for defence but that it is suitable for use in attack or offence, but that is a matter for you to consider.”

That is to make a case against Mrs Kissel even on the basis of her own account.

223.  On the law of self-defence applicable to circumstances like these, what the trial judge told the jury in his living voice and to their faces was misleading.  And one cannot assume that they ignored it just because it was not repeated in the lifeless paper directions handed to them.  Although I consider the complaint under the third ground made out while the other members of the Court do not, that is due only to different views as to the sufficiency of the directions in the context of the facts.  It is not due to any disagreement as to the law.  Nor does it affect the result of the appeal.

Overview

224.  Mr Zervos asks the Court to have regard to the totality of everything in the case when deciding if this was a fair trial.  It is of course perfectly legitimate to ask the Court to do that.  But when that is done, what emerge are numerous elements of grave concern in addition to the ones on which the defence’s specific complaints are directly based.  The jury were told by the trial judge to “have regard to the points made by counsel in their closing speeches”.  One such point was the one put forward by prosecuting counsel when, without any evidential foundation, he invited the jury to take the view that the man with whom Mrs Kissel was having a liaison had given her “tacit encouragement” to “remove” Mr Kissel.  That, to say the very least, opened up an extremely dangerous line of prejudicial speculation. 

225.  A notable advocate (Mr Cyril Harvey QC in his thought-provoking book The Advocate’s Devil (1958) at pp 30-31) has referred to what he calls “the devilment inherent in us all which the presence of a jury is apt to evoke”.  Sometimes counsel, without meaning to be unfair, allow themselves to become so carried away as to be grossly unfair.  When such unfairness occurs against an accused person in front of a jury, the presiding judge must step in decisively to undo or at least mitigate the harm.  The sooner the judge steps in the better, for :

“A little fire is quickly trodden out;

Which, being suffer’d, rivers cannot quench.”

So wrote William Shakespeare (in King Henry VI, Part III, Act IV, scene viii).  In the present case there were many instances – none of which the Court of Appeal appear to have noticed – of harm being done by prosecuting counsel and not being undone or even mitigated by the trial judge.

226.  It was said by no less a judge than Sir Mathew Hale (in The Trial of the Witches at Bury St Edmund’s (1665) 6 State Trials 647 at p.702) that “to condemn the innocent, and to let the guilty go free, were both abominations”.  Indeed they are, but the former is even more to be guarded against than the latter.  And everyone’s legitimate concern is to see that “the prisoner is not deprived of life or liberty, except under the whole of the safeguards prescribed by law”.  That is how it was so memorably expressed in the Full Court by Mr Justice Gompertz in The King v Kwok Leung (1909) 4 HKLR 161 at p.175.  It is of course “a disgrace to the law”, as was said in the Court of King’s Bench by Lord Tenterden CJ in The King v Somerton (1827) 7 B&C 463 at pp 466-467, “that criminals should be allowed to escape by nice and captious objections of form”.  But the safeguards of which Mr Justice Gompertz spoke – and with which we are concerned in this appeal – are not mere matters of form.  They go to ensure a fair trial of the issue of whether the person accused of being a criminal really is a criminal.

Proviso

227.  Despite the ability of the learned judges below, there are matters justifiably complained of on Mrs Kissel’s behalf.  Each on its own, let alone the combined effect of all of them, amounts to a departure from accepted norms so serious as to constitute a substantial and grave injustice for which her conviction should be quashed unless it is appropriate to apply the proviso to s.83(1) of the Criminal Procedure Ordinance, Cap.221.  Section 83(1) reads :

“Except as provided by this Ordinance, the Court of Appeal shall allow an appeal against conviction if it thinks –

(a) that the conviction should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b) that the judgment of the court of trial should be set aside on the ground of a wrong decision on any question of law; or

(c) that there was a material irregularity in the course of the trial, and in any other case shall dismiss the appeal :

Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.”

228.  For the purposes of disposing of an appeal, this Court is empowered by s.17(2) of its statute to “exercise any powers of the court from which the appeal lies”.  The court from which this appeal lies, namely Court of Appeal, expressed itself of the view that if the question arose, “[t]his would be pre-eminently a case for the application of the proviso”.  That view must now be examined.

229.  There can be no dispute as to the test to be applied when the proviso is invoked.  The test was dealt with by the House of Lords in Stirland v Director of Public Prosecutions [1944] AC 315 at p.321 and Customs and Excise Commissioners v Harz [1967] 1 AC 760 at pp 823-824.  Citing those cases, Sir Anthony Mason NPJ, with whom the other members of this Court agreed, said in Launder v HKSAR (2001) 4 HKCFAR 457 at p.471D-H that the test is “whether a reasonable jury, properly instructed, would, on the evidence, without doubt convict or would inevitably come to the same conclusion”.  By “the evidence” is of course meant the whole of the evidence properly to be placed before the jury, with nothing wrongly excluded or wrongly admitted.

230.  Plainly the test to be satisfied before the proviso can be applied is “an exacting one” (which is how it was described by the Privy Council in Pringle v The Queen, Privy Council Appeal No.17 of 2002, 27 January 2003 at para.37).  Is that test satisfied in this case?  The prosecution strenuously submits that it is.  Just as strenuously, the defence submits that it is not.

231.  If the Court of Appeal had simply said that this is a case for the proviso, I would simply say that it is not.  But going so far as to say that “[t]his was as cogent a case of murder as might be imagined”, the Court of Appeal listed what they considered to be “a number of central and clear features, about which there can be no reasonable argument”.  These were, they said :-

“1)   [Mrs Kissel] killed [Mr Kissel];

2) shortly before his death, [Mr Kissel] consumed a milkshake which had been prepared by [Mrs Kissel];

3) that milkshake contained drugs; so much is self-evident not only from the testimony of [the neighbour Mr Andrew Tanzer who took ill after consuming one of the milkshakes, the colleague Mr David Noh to whom Mr Kissel spoke on the telephone after consuming the milkshake and the Kissels’ domestic helper Ms Maximina Macaraeg], but also from the fact that

4) in [Mr Kissel’s] stomach were found five drugs of which four had been prescribed for [Mrs Kissel] in the ten days before the killing;

5) those drugs had been obtained by her from two doctors in separate practices and she divulged to neither doctor that she had consulted the other;

6) [Mrs Kissel] had previously put drugs into [Mr Kissel’s] whisky;

7) [she] had searched websites for the effects of Rohypnol and for the side-effects of drugs, including heart attack;

8) the forensic evidence that [Mr Kissel] was lying prone on his bed when the fatal blows were struck to his head;

9)    the forensic evidence that [his] body bore no defensive wounds;

10) the killing of [Mr Kissel] occurred when [Mrs Kissel] not only was well provided for in the event of the death of the deceased, but when she was engaged in a liaison with a man in the USA; and

11) as to the defence(s) offered by [Mrs Kissel], every material aspect was contradicted not only by the key factors to which we have referred but also by the following:

i) it was central to [her] defence that she had been attacked by [Mr Kissel] with a baseball bat. Yet that stood in dramatic contrast to the account given by [her] to the police when she made a report; to the police after her arrest; to each of the domestic helpers; and to [Dr Dytham], who was told that the deceased had attacked her with his feet and fists whilst she held a fork;

ii) an attack with a baseball bat was not mentioned to her family members; to her domestic helpers; to Ms O'Shea, Mr Noh or the police;

iii) [Mrs Kissel] proffered a variety of lies to all who enquired, to explain [Mr Kissel’s] absence after the killing;

iv) it was central, too, to [her] defence that [he] had abused her and was given to drink and drugs. Yet those who might be expected to know of at least some of those traits or to have been told about them by [her] - work colleagues, relatives on either side, friends of [hers] or [his], domestic helpers - knew nothing of this suggested behaviour either from their own observations or from [her]. The only exception is Dr Dytham who, when [Mrs Kissel] sought to justify her need for a stronger sleeping tablet than Ambien, was told of a physical assault - but even then there were no injuries to [Mrs Kissel] and [Mrs Kissel] denied that the assaults involved rape and made no mention of anal sex;

v) in none of [Mrs Kissel’s] own diary entries was there a single record of violence or sexual abuse by [Mr Kissel];

vi) when the appellant saw Dr Dytham on 4 November, two days after she had killed [Mr Kissel], to report a suggested assault by him, the doctor thought her to be exaggerating her symptoms; and her slow body movements and hunched appearance was contradicted by the CCTV recordings after the killing;

vii) the assertion of memory loss directed at events immediately before and after the killing, but not the killing itself, sat ill with the testimony of numerous witnesses with whom [Mrs Kissel] had held entirely sensible conversations, including one in which she was insistent on pursuing an arrangement for cosmetic surgery in the USA; and

viii) the allegation of attempts at suicide, to which she said she was driven by [Mr Kissel’s] conduct, was unsupported in any respect by her well-documented medical history and had been mentioned to none of the doctors, her family or friends.”

232.  The prosecution can of course rely on the combined strength of all the material elements of a circumstantial case.  For the purposes of making that point, it is common to liken each  piece of circumstantial evidence to one strand of a rope.  Unlike a chain only as strong as its weakest link, a rope takes its strength from all of its strands woven together.  Chief Baron Pollock, as one sees in The Queen v Exall (1866) 4 F & F 922 at p.929, drew the contrast between a rope and a chain when directing the jury in that case.  That is by far the most famous, but by no means the only, form of imagery available to make the point that the strength of a circumstantial case comes from all of its components taken together.  In The Belhaven and Stenton Peerage Case (1875) 1 App Cas 278 at p.279, Lord Cairns LC made the same point by likening each piece of circumstantial evidence to a ray of light.  Even though no single ray can clear away the darkness to be expelled, the Lord Chancellor said, a number of converging rays may produce the necessary body of illumination.  Of course none of that is to suggest that any circumstance is immune from such scrutiny as may be necessary for the purpose of seeing what (if anything) it really contributes to the total strength of the circumstantial case sought to be established.

233.  Moreover there is of course a world of difference between, on the one hand, circumstances capable of supporting a conviction and, on the other hand, circumstances that render a conviction inevitable.  This is a point stressed in Fahy v Connecticut 375 US 85 (1963), a decision on the “harmless error” rule.  Chief Justice Warren, giving the opinion of the United States Supreme Court, said this at pp 86-87 :

“We are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of.  The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”

234.  Giving their Honours’ opinion in Chapman v California 386 US 18 (1966), Mr Justice Black said (at p.24) that there was little, if any, difference between that statement in Fahy’s case and requiring the prosecution “to prove beyond reasonable doubt that the error complained of did not contribute to the verdict obtained”.  The prosecution bears the “burden of demonstrating” the harmlessness of the error.  That was stressed by Mr Justice White (at p.296) when speaking for their Honours in Arizona v Fulminante 499 US 279 (1991).  It is worth noting that Professor Rosemary Pattenden (as one sees in The Handbook of The Criminal Justice Process (eds M McConville and G Wilson) (2002) at p.500) uses the expression “to cater for harmless errors” when describing the proviso’s purpose.  To say that an error is harmless is not to deny or downplay the seriousness of the error in itself.  It is just another way of saying that no miscarriage of justice has actually occurred in consequence of the error because the result was inevitable and would therefore have been the same even if the trial had proceeded properly in all material respects. 

235.  The proviso is never lightly to be applied.  And an appellate court’s awareness of that will naturally be heightened whenever the error is fundamental.  But whatever the nature or seriousness of the error and whatever is at stake, the test is still one of inevitability.  It always comes down to whether the appellate court is made to feel sure that the conviction is inevitable.  Our proviso is based on s.4(1) of the Criminal Appeal Act 1907.  Delivering the judgment of the Court of Criminal Appeal in The King v Cohen and Bateman (1909) 2 Crim App Rep 197, an early decision on s.4(1) of the 1907 Act, Mr Justice Channell said (at p.207) that “the Crown have to shew that, on a right direction, the jury must have come to the same conclusion”.

236.  Now let us look at each of the “features” listed by the Court of Appeal in the present case, the first being that Mrs Kissel killed Mr Kissel.  She did.  But it has been clear at least since the decision of the House of Lords in Woolmington v Director of Public Prosecutions [1935] AC 462 that the fact of a killing by the accused person raises no presumption against him or her and does not relieve the prosecution of its burden of proving beyond reasonable doubt that the killing amounted to murder.  Mrs Kissel accepted that she killed Mr Kissel, but said that it was in self-defence.  There is no burden on an accused person to prove self-defence.  Where self-defence is in issue, the prosecution has to disprove it beyond reasonable doubt.  That is why, as the Court of Appeal recognised in The Queen v Ho Wing-sum [1987] HKLR 952, a plea of self-defence should not be called a “defence”.  As appears from pp 482-483 in Woolmington’s case, the House of Lords said that there was “ample jurisdiction” to apply the proviso even in a capital case, but declined to do so in that case, feeling unable to say that a conviction was inevitable. 

237.  As to the second to fifth features, there certainly was evidence on which a reasonable jury could feel sure that Mrs Kissel had drugged Mr Kissel by introducing drugs into the milkshakes which she had prepared for him and the neighbour Mr Andrew Tanzer who was visiting them at the time.  But can one go so far as to say that a reasonable jury would inevitably feel sure of that?  Mrs Kissel denies it.  No appellate court can know what view a reasonable jury in a fair trial might form of her demeanour in the witness-box.  As to the inherent probabilities, the defence is entitled to say this.  If Mrs Kissel had indeed planned to drug Mr Kissel into a defenceless state with a view to battering him to death, she would surely have realised that drugging Mr Tanzer, too, would greatly increase the risk of detection.  The inherent probabilities come in as we explained in Tang Kwok Wah v HKSAR (2002) 5 HKCFAR 209 at pp 222 H-J and 229 F-H.  We explained there that a jury will make their findings on the credibility and reliability of witnesses having regard to the possibilities, probabilities and certainties emerging from the whole body of evidence before them, convicting only if they are ultimately sure of the accused person’s guilt.  Might the truth lie in between the prosecution’s allegation and Mrs Kissel’s account?  In other words, could it be that she did lace the milkshakes but only with a view to calming Mr Kissel down – as she said that she had done in the past – and thinking that the effect on Mr Tanzer would not be very noticeable?  If a reasonable and properly directed jury, proceeding only on admissible evidence at a fair trial, considers that a reasonable possibility (to employ the expression used by Chief Justice Warren in Fahy’s case at pp 86-87), they would not convict Mrs Kissel of murder.

238.  The sixth feature is that Mrs Kissel had previously put drugs in Mr Kissel’s whisky.  It has already been pointed out that her testimony was of having done so in order to calm him down. 

239.  As to the seventh feature – namely that Mrs Kissel had searched websites for the effects of Rohypnol and the side-effects of drugs, including heart attack – it is necessary to point to two things which she said in the course of her testimony.  First, Dr Dytham had prescribed Rohypnol for her, and she wanted to find out what it was.  Secondly, she was contemplating suicide, and if she killed herself she would not want her children to know that their mother had taken her own life.  Before leaving the question of drugs found in Mr Kissel’s stomach, there is one more fact to be mentioned.  It is that the forensic pathologist Dr Lau Ming-fai who performed the autopsy on Mr Kissel said that although those drugs had probably impaired his “conscious level” at the time of the fatal incident, the degree of such impairment could not be determined.

240.  The eighth and ninth features may be considered together.  Scientific evidence that Mr Kissel was lying prone on the bed when the fatal blows were struck would lend powerful support to the prosecution’s case.  But despite how it was put by the Court of Appeal, it appears from the summing-up that what the prosecution’s expert actually said was no more than that it was likely that Mr Kissel had been sitting or lying down near to the end of the bed when the fatal blows were struck.  Moreover, as was said in the High Court of Australia by Mr Justice Dixon (later Chief Justice Dixon) in Hocking v Bell (1945) 71 CLR 430 at p.496, scientific evidence “is no less matter of fact within the province of the jury than is other evidence, and it is the jury’s function to estimate the reliance to be placed on scientific witnesses, however eminent”.  That was said in a dissenting judgment which was eventually vindicated by the Privy Council in a decision reported at (1947) 75 CLR 125.  What confidence they place in the accuracy and effect of expert evidence is always a matter for the jury as the sole judges of fact.  And as for the absence of defensive wounds on Mr Kissel’s body, it is not irreconcilable with Mrs Kissel’s account.

241.  As to the tenth feature, the fact that a wife would be well provided for in the event of her husband’s death and was engaged in a liaison with another man enables the prosecution to point to a possible motive for her to murder her husband.  Upon a fair consideration of a case like the present, care must be taken to see that the evidential value of such a motive is neither, on the one hand, downplayed nor, on the other hand, exaggerated.

242.  There are, in fairness to the defence, several points to be made on the eleventh and final feature.  They are these.  True it is that the defence cannot deny the significance of Mrs Kissel’s omission to tell her family members, her domestic helpers, Ms O’Shea or the police that Mr Kissel had attacked her with a baseball bat.  But a balanced evaluation of this omission can only be made in the context of Mrs Kissel’s testimony of memory loss.  And it is difficult to understand the Court of Appeal’s view that her assertion of memory loss sat ill with her having held sensible conversations.  Memory and the ability to hold sensible conversations are different things.  The generality of the Court of Appeal’s pronouncement that she “proferred a variety of lies to all who enquired, to explain [Mr Kissel’s] absence after the killing” renders its weight difficult to assess.  It is true that Mrs Kissel did not tell anybody about Mr Kissel’s abusive behaviour and did not record such behaviour in her diary.  But some people are forever complaining while others tend to suffer in silence.  And some people unburden themselves in their diaries while others do not.  Subject to one qualification, there is some significance in Dr Dytham’s view that Mrs Kissel was exaggerating her symptoms and that her slow body movements and hunched appearance were contradicted by the CCTV recordings after the killing.  The Court of Appeal considered it significant that Mrs Kissel had not revealed to anyone that she had attempted suicide.  But where is the evidence that she would want anybody to know anything of the kind?  Her testimony, it will be remembered, was that if she killed herself she would not want her children to know that their mother had taken her own life.  Cynical evasion or a cry from the depth of despair?

243.  Coming now to the qualification which has to be placed on the significance of Dr Dytham’s view that Mrs Kissel was exaggerating her symptoms, it is this.  It appears uncontroversial that damaged skeletal muscle releases the enzyme called creatine kinase (“CK”) into the bloodstream.  When Mr King re-examined Dr Dytham, he drew her attention to the CK levels found when Mrs Kissel’s blood was tested in hospital on the morning of 7 November 2003, namely 4,500 at 4 o’clock and 3,058 at 9 o’clock.  Dr Dytham accepted that the normal range was 24 to 180.  And she said that those elevated CK levels were indicative of skeletal muscle injury and were relevant to a consideration of whether or not Mrs Kissel had exaggerated her pain.  This is a further illustration of the caution called for when considering features such as those listed by the Court of Appeal.  Also in this connection, it should be noted that Dr Dytham conceded that she might have missed some of Mrs Kissel’s injuries because she ie Dr Dytham was frustrated at how long the examination was taking and had other patients to see.  As mentioned earlier, Mrs Kissel’s father testified that when he saw her on 5 November 2003 she was wearing a strap around her waist and had a split lip.

244.  Compared to how much they said on other matters, relatively little was said by the Court of Appeal on what might be called the question of the baseball bat and the fatal ornament.  There are legitimate points on both sides of this question.  These are perhaps weightier on the prosecution’s side than on the defence’s.  But it is by no means all one way.

245.  The prosecution says that the baseball bat appeared in mysterious circumstances well into the trial.  Called by the defence, Mrs Kissel’s half-brother Dr Brooks Keeshin gave evidence of finding the baseball bat lying on the floor behind a chest of drawers in the master bedroom when he visited the flat with Mrs Kissel’s solicitor Mr Simon Clarke on 9 November 2003.  That was one week after the killing.  It followed the release by the police of the premises which they had at one stage kept sealed as a crime scene.  Dr Keeshin said that he and Mr Clarke examined the baseball bat but noticed nothing on it.  Then, Dr Keeshin said, Mr Clarke placed the baseball bat inside a pillowcase.  Dr Keeshin’s understanding was, he said, that Mr Clarke would take the baseball bat to his office.

246.  It is convenient to continue by setting out a passage from the summing-up quoted in the prosecution’s printed case.  This passage reads :

“Of course, members of the jury, we have received no evidence of the whereabouts of the baseball bat thereafter until the time it was handed over to the police on 21 July 2005 in this courtroom by a representative of the solicitors representing the defendant.  Evidence in respect of the baseball bat and the issue of contact with the base of the ornament was adduced by the prosecution in rebuttal after the closure of the defence case.  Mr Clarke has been in court throughout this trial, yet he was not called to testify to the discovery of the baseball bat, why it is that he took it upon himself to take possession of it, and if it be the case, why he removed it from the premises, whom it was that he told about its discovery and removal, and what became of the baseball bat in the period between 9 November 2003 and 21 July 2005.  Of that we know nothing at all.”

As to Mr Clarke not having been called to testify, it should in fairness to the defence be noted that the prosecution did not challenge Dr Keeshin’s testimony about the finding of the baseball bat.

247.  The baseball bat and the base-plate of the fatal ornament were examined by the government chemist Dr Wong Koon-hung.  His evidence, helpfully to the prosecution, was that he found neither any transfer of metal traces from the base-plate to the baseball bat nor any transfer of wood or paint from the baseball bat to the base-plate.  Although he could not explain how the base-plate was distorted into a curve, his conclusion, helpfully to the prosecution, was that the baseball bat had not come into any significantly forceful contact with the base-plate and had not caused its distortion.

248.  How then, the defence is entitled to ask, did the base-plate come to be distorted?  There was evidence that it used to be flat, and there was no evidence of it having been distorted prior to the fatal incident.  That the base-plate had been deformed by contact with something prior to contact with Mr Kissel’s head was attested by the curved shape of the lacerations to his skull.  The forensic pathologist Dr Lau proceeded on the basis that the base-plate was already in a curved shape when the blows to Mr Kissel’s head were struck.  He did not think that the human skull is hard enough to distort lead like this.  As to shape at least, the government chemist Dr Wong said that a curvature of the shape found on the base-plate could have been caused by it being struck with an elongated cylindrical object.

249.  It would appear that the defence disputes the objectivity of some of Dr Wong’s evidence.  As the trial judge reminded the jury, Mr King had suggested in cross-examination to Dr Wong, who denied it, that he was anxious to provide the police with some basis to argue that the baseball bat never came into contact with the base-plate.  And even where an expert is wholly objective as he ought to be, there remains the question of whether he has really arrived at the truth or merely fancies that he has.  It is to be remembered in regard to the proviso that the standard jury directions on expert evidence include directions to the following effect.  If after careful consideration, the jury do not accept an expert’s evidence, they do not have to act on it.  Indeed, even unchallenged expert evidence need not be accepted by them.

250.  None of that is to deny that scientific evidence for the prosecution has a very important role to play in convicting the guilty.  But it cannot be denied that forensic science has been known to cause or contribute to the conviction of innocent persons – sometimes partially redeeming itself by evolving so as eventually albeit belatedly to exonerate its innocent victims.

251.  On the wider question of whether Mrs Kissel had been an abused wife for a number of years, there was evidence that she was once seen in 2001 wearing a brace around her ribs and that in 2002 she was seen on one occasion with her foot and ankle in a cast and on another with a black eye.  On those three occasions, she had attributed the brace, the cast and the black eye respectively to accidents.  At the trial, however, the defence relied on them as support for her testimony of abuse at her husband’s hands.  Had she, out of embarrassment, been covering up abuse initially?  So the defence says.  Or was she making up abuse subsequently?  So the prosecution says.  The truth of such a matter is naturally a jury question to be answered at the end of a fair trial.

252.  Just as the material circumstances relied upon by the prosecution are to be taken as a whole, so must the prosecution’s case as a whole be considered alongside the defence’s case rather than in isolation.  In the witness-box, Mrs Kissel put forward a case of self-defence.  And she is entitled to ask rhetorically why, if she had indeed planned a murder, she was left with a dead and battered body which was highly likely, sooner or later, to be discovered and traced back to her?  More or less the only response that the prosecution can offer is that people behave oddly sometimes.  Judging by their verdicts, it would seem that juries are often, but not always, satisfied with such a response.  The prosecution is reduced to offering much the same sort of response to the question of why Mrs Kissel would resort to the extreme course of murder rather than the infinitely more natural and less risky course of suing for divorce, child custody and financial provision.

253.  Of course the prosecution, too, is entitled to ask a rhetorical question.  If Mrs Kissel was defending herself when she killed Mr Kissel, why did she not report the matter to the police and tell them that it was self-defence?  In answer to that question, it could be said that Mrs Kissel might indeed have been suffering from memory loss.  Or it could be said that she might have panicked.  It is quite conceivable that a person who had taken a human life would panic even if the killing was in self-defence.  And this would be especially so if the person who did the killing had been, or might be thought to have been, the initial aggressor.

254.  There is of course no reason in principle why the proviso cannot be applied to affirm a conviction for murder.  Indeed, as we have seen, the House of Lords said in Woolmington’s case that there was ample jurisdiction to apply the proviso even in a capital case.  This Court has twice applied the proviso to affirm a conviction for murder : first in Lam Chi Kwong v HKSAR (2008) 11 HKCFAR 623 and then in Cheung Chi Keung v HKSAR, FACC No. 9 of 2008, 12 March 2009.  But each of those two cases is materially and obviously different from the present case.

255.  In Lam’s case the appellant stabbed his former girlfriend to death.  Let us look at the circumstances in which – and the reasons why – the proviso was applied to affirm his conviction for murder despite misdirection by the judge of the jury.  Those circumstances and reasons were stated thus in (paras 31-33 of) a judgment given by one member of the Court and concurred in by all the other members of the Court :

“    On the evidence in the present case, would a reasonable and properly directed jury inevitably have concluded that the prosecution had (i) proved intent to kill or at least cause really serious injury and (ii) negatived provocation?

    As to intent, the evidence was that the appellant, using a knife, killed the victim by stabbing her in the torso three times with substantial force, twice from the back and once from the front.  Each time the blade entered the chest cavity.  The wound from the front was 3 cm deep.  One of the wounds from the back was 7 cm deep, and the other was 9 cm deep.  On that evidence, a reasonable and properly directed jury would, in my view, inevitably have concluded that the prosecution had proved at least intent to cause really serious injury.

That leaves provocation.  On the appellant’s own testimony, what ultimately caused him to lose his self-control was the victim’s statement to the effect that he was useless, worthless and inferior in all respects to her new boyfriend.  The last question and answer in the appellant’s examination-in-chief were :

‘Q:    Would you have stabbed her if she didn’t say those words to you?

 A:    Absolutely not.’

Also on the appellant’s own testimony, the victim had said those words in response to his having asked her repeatedly what was so good about her new boyfriend.  There is nothing unnatural about a woman blurting out something of that sort when pressed like that.  Quite simply, I do not see how a reasonable jury could possibly feel otherwise than sure that no man possessed of ordinary self-control, whether of the appellant’s age or indeed any age, would have reacted to such a response by doing as the appellant did.  After all, the realism and common sense with which jurors are expected to approach their task must be attributed to the proviso’s reasonable hypothetical jury.  On the evidence, a reasonable and properly directed jury would, in my view, inevitably have concluded that the prosecution had negatived provocation.”

256.  Cheung’s case was a case in which the appellant and another man (named Wu) had kidnapped a boy of 13.  What were the circumstances in which – and the reasons why – the proviso was applied to affirm his conviction for murder despite misdirection by the judge of the jury?  Those circumstances and reasons were stated thus in (paras 23-26 of) the Court’s judgment :

“   What are the material facts as they emerge from the appellant’s own evidence?  He handed Wu a stone after Wu had told him that the hammer had broken and asked him for a bar or wooden pole.  And that was after he himself had punched the victim, hit his head with a hammer and changed places with Wu after Wu had asked him to hit the victim’s head again.  After he handed Wu the stone, he continued to drive the van in which the victim was being abducted.  He continued to drive the van even when he heard the victim’s shouts, banging noises and the victim saying to Wu, ‘I recognise you, uncle’.

The proviso’s reasonable hypothetical jurors are taken to possess the realism and common sense with which jurors are expected to approach their task.  Wu’s use of the hammer on the victim followed the appellant’s use of it to hit the victim on the head.  No reasonable juror approaching his or her task with realism and common sense could, in the circumstances, have attached any credence whatsoever to the notion that the appellant believed that the hammer had broken while being used by Wu merely to scare the victim rather than while it was being used by Wu to hit the victim.  Nor, in the circumstances, could any reasonable juror so approaching his or her task have attached any credence whatsoever to the notion that the appellant did not know when he handed the stone to Wu that it was meant as weapon with which to resume the assault on the victim.  Let it not be forgotten that he handed the stone to Wu after the hammer had broken and Wu had asked him for a bar or wooden pole.

Such were the material facts which emerged from the appellant’s own evidence that it is difficult to imagine that the attack on the victim, who had recognised Wu, could possibly have been carried out otherwise than with intent to kill the victim so as to silence him forever.  But even leaving that aside, it is fanciful to imagine that an attack such as this one could possibly have been carried out with anything less than at least intent to cause the victim really serious injury.

In any case, the appellant and Wu were acting pursuant to a joint enterprise to kidnap the victim and obviously to use considerable, repeated and escalating violence to stop him, a frightened and desperate boy of 13, from struggling and shouting while he was being abducted by them, a pair of grown men.  At the very least, the appellant must have foreseen, as a possible incident of that joint enterprise, a lethal attack by Wu on the victim after he, having himself attacked the victim, changed places with Wu and handed Wu a stone when Wu announced that the hammer had broken and asked him for a bar or wooden pole.  Such foresight would suffice to make him guilty of murder under the doctrine of joint enterprise. 

A reasonable and properly directed jury would inevitably have convicted the appellant of murder.”

257.  Mr Lam and Mr Cheung had each by his own testimony admitted serious and dangerous criminal conduct on the relevant occasion : at least manslaughter in the case of Mr Lam and kidnapping furthered by horrific violence in the case of Mr Cheung.  Each sought to avoid a conviction for murder by certain denials and assertions which fell within a small compass.  By marked contrast, applying the proviso in the present case would involve the wholesale dismissal out of hand of Mrs Kissel’s testimony in regard not only to the circumstances of the killing but also the events immediately leading up to it and, indeed, the history of her marriage.

258.  One of the cases in which this Court declined to apply the proviso is Chan Chuen Ho v HKSAR (1999) 2 HKCFAR 198.  Mr Chan was found by the police in possession of a large quantity of heroin.  The jury would have been perfectly entitled to infer that he was trafficking in them.  But the matter was not left to them on that basis.  Instead they were directed in a way which might have led them wrongly to believe that possession of those dangerous drugs raised a presumption of trafficking in them.  They convicted Mr Chan of trafficking.  The Court of Appeal, thinking that such a conviction was inevitable, affirmed it.  When the case reached us, we declined to apply the proviso.  Instead we substituted a conviction for the lesser offence of simple possession of dangerous drugs.  This was because, strong as the evidence of trafficking was, there still remained a possibility that a properly directed jury would have convicted only of that lesser offence.  In the false accounting case of Chan Kar Leung v HKSAR (2006) 9 HKCFAR 827 we declined to apply the proviso because there was a live issue as to dishonesty and we felt unable to say that a properly directed jury would inevitably have resolved that issue against the appellants so as to convict them.  And in the drug trafficking case of Tam King Hon v HKSAR (2006) 9 HKCFAR 206 we declined to apply the proviso even though the appellant had to accept that the prosecution’s case was strong.

259.  Some of the cases illustrate the sort of circumstances in which the proviso is properly to be applied under the test of inevitability.  Others illustrate the sort of circumstances in which the proviso cannot properly be applied under that test.  The test is always the same though the circumstances vary.

260.  While the prosecution accepts that the test is one of inevitability, their printed case contains the statement that “[t]he view of the jury which had tried the case must be a factor, albeit not conclusive, to be taken into account in considering what the view of the hypothetical reasonable jury would be”.  Can the fact of a guilty verdict at an unfair trial provide any support for an argument that a guilty verdict would be inevitable at a fair trial?  It cannot.  Quite simply, the argument that it can moves in a circle.  What Mr Justice Chan PJ said in Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113 at p.132H-J is this :

“Although the test anticipates the view of a hypothetical reasonable jury, the view of the jury which had tried the case must be a factor – albeit not conclusive – to be taken into account in considering what the view of the hypothetical reasonable jury would be.  The fact that a particular jury only reached their verdict by a bare majority of 5 to 2 would indicate that two jurors had entertained some doubts about the guilt of the accused.”

So the guilty verdict was not taken into account in favour of the prosecution on the question of the proviso.  Rather was the verdict’s lack of unanimity taken into account in favour of the defence on that question.  In the present case, the guilty verdict is neutral for proviso purposes.  As explained above, the fact of the verdict being one of guilty cannot help the prosecution.  And being unanimous, the verdict contains nothing of help to the defence either.  The proviso exercise in this case proceeds on a clean slate.

261.  Drawing all the threads together, the position may be summarised thus.  Mrs Kissel killed Mr Kissel.  That much is not in dispute.  But was the killing certainly murder or might it have been in self-defence?  There is acute controversy over what really went on between Mr and Mrs Kissel over the years and right up to the time of the fatal incident.  As to what happened after Mr Kissel had been killed, it is clear that Mrs Kissel concealed the body.  But is it certain that she did that to hide a murder?  Or might it be that she panicked and tried to hide the fact of the killing even though it had been in self-defence?  There is the question of memory loss on Mrs Kissel’s part.  Is it certainly a pretence or might it be genuine?  As to dissociative amnesia, it could be said with some force that even a killing in self-defence and the concealment of the body thereafter – especially in circumstances like these – would be highly traumatic.  The prosecution’s case, being circumstantial, can to some extent be judged on the papers.  But Mrs Kissel’s case is based on her testimony.  And judging her credibility on paper is highly difficult to say the least.

262.  Mr Zervos for the prosecution has, most ably as always, stressed all the circumstances capable of being woven into a circumstantial case of murder.  Equally Mr McCoy for Mrs Kissel has, also most ably as always, stressed all the circumstances capable of providing support for her testimony that it was self-defence.  The question is not whether a reasonable hypothetical jury that had sat through a fair trial free from any material irregularity and had been properly directed could, or even probably would, convict.  It is whether such a jury would inevitably feel sure that Mrs Kissel was lying from start to finish and that she had planned and carried out a coldly calculated murder.

263.  In Barrow v The State [1998] AC 846 the Privy Council refused to apply the proviso, saying this : “It is true that the case was a strong one.  But everything turned on credibility”.  Barrow’s case was cited by us in Yuen’s case (at p.133D) for that point.  In Yuen’s case the majority in the Court of Appeal were prepared to apply the proviso, but we declined to do so.  The involvement of credibility does not preclude applying the proviso to affirm a jury’s verdict, but may render such a course especially difficult.  Jurors do not give reasons.  Where everything turns on credibility and the jury have been deprived of the opportunity to assess the accused person’s credibility under fair conditions, concluding that such deprivation was irrelevant to the result is naturally problematical.  Mrs Kissel’s case wholly depended on her credibility.  Her marital infidelity was relevant to a possible motive for murdering her husband.  But if her account of the history of the marriage is true, some people might say that she had to some extent been driven to that infidelity.  So there are two sides to the question.  Moreover these are courts of law, not courts of morals.

264.  In a court of law, Mrs Kissel, having no previous conviction, is of good character.  One of the directions that the reasonable hypothetical jury must be treated as having received is the standard “good character” direction.  This is that Mrs Kissel’s good character (i) makes it more unlikely than otherwise that she would commit murder and (ii) is to be taken into account in her favour when deciding what weight to give her testimony.  Another direction that the reasonable hypothetical jury must be treated as having received is the “defence evidence” direction dealt with by this Court in Sze Kwan Lung v HKSAR (2004) 7 HKCFAR 475 at pp 486J-487A.  By one form of words or another and in one way or another, the message must be conveyed to the jury that even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if it gives rise to a reasonable doubt on that issue.

265.  What really happened : was it what the prosecution says, what the defence says or something in between?  How the prosecution normally proves its case was neatly put by Lord Justice Lloyd (later Lord Lloyd of Berwick) speaking for the English Court of Appeal in The Queen v McIlkenny (1991) 93 Crim App Rep 287.  It is done, he said at p.312, “by calling witnesses to give oral testimony in the presence of the jury”.  As Lord Wright said in Mechanical and General Inventions Co. Ltd v Austin [1935] AC 346 at p.373, the appellate court “is never the judge of fact in a case where the constitutional judge of fact is the jury”.  That may be subject to the special circumstances where, as in Daniel v Metropolitan Railway Co. (1868) LR 3 CP 591, nothing is left to the jury and there is a reservation by consent that means, as the Court of Exchequer Chamber said (at p.593), that the appellate court “is to find a verdict upon the evidence as a jury should have done”.  But no such circumstances can arise in regard to the proviso. 

266.  Mrs Kissel’s testimony was lengthy.  The following is a sample of it under cross-examination :

“Q. He was unable to defend himself because you had rendered him defenceless by drugging him, Mrs Kissel.

A. No.  No.  That is not what happened.  That is not what happened.  We had a fight, we had a fight and he used that bat, telling me he was going to kill me with that bat.  He - - he kept repeating it, and I defended myself from him.

[PROSECUTING COUNSEL] : Is that a convenient moment, my Lord?

COURT : Yes, if it’s convenient for you.

[PROSECUTING COUNSEL] : Yes.

COURT : Mrs Kissel, we’re going to adjourn now and resume your testimony tomorrow.  As I’ve told you on previous occasions …

A. He was going to kill me, he was going to kill me.  Oh, God.  He was going to kill me.”

Applying the proviso would be to pronounce that Mrs Kissel must have been lying, so pronouncing without having seen or heard her.  Dealing with whether pleaded averments would be sufficient if proved, Lord Normand pointed out in Jamieson v Jamieson [1952] AC 525 at p.536 that what appears on paper may present a very different aspect when it has been developed in evidence though the evidence “does not exceed by a single word the bounds set by” the pleadings.  Similarly, the impression that one gets from reading a transcript may not be the impression which one would have got upon receiving the testimony at first-hand.

267.  Whether or not the proviso should be applied in any given case is to be decided with reference to the whole of its relevant circumstances.  In the present case, the relevant circumstances call for adherence to the following conditions.  First, a reasonable hypothetical jury will receive only such evidence as it is proper to adduce before them.  Secondly, they will see and hear Mrs Kissel in the witness-box.  Thirdly, she will be cross-examined searchingly but not unfairly.  Thirdly, they will be properly directed.  Finally, the trial will be free from any material irregularity.  Under those conditions, can an appellate court (not being the constitutional tribunal of fact and looking at the matter only on the papers) say that a reasonable hypothetical jury (notionally representing the constitutional tribunal of fact that receives the oral evidence at first-hand) would inevitably convict Mrs Kissel of murder?  In all the circumstances and having regard to the relevant arguments and counter-arguments, my answer to this question is “No”.  The proviso is an instrument of justice.  As there have been in the past, there are likely to be in the future many cases in which it would be appropriate to apply the proviso.  But the present case is not such a case.  Accordingly I would allow the appeal to quash the conviction.

Discharge or retrial?

268.  Should Mrs Kissel be discharged or retried?  The prosecution asked for a retrial in the event of the appeal being allowed.  And although Mr McCoy made it clear that the defence did not consent to a retrial, he acknowledged the strength of the arguments in favour of a retrial and realistically refrained from offering any argument against one. 

269.  In Hong Kong the power to order the retrial of an accused person was introduced by the enactment of s.78A(3) of the Criminal Procedure Ordinance 1899.  This power was first invoked (unsuccessfully as it happens) in Cheng Hing U v The King (1935) 27 HKLR 53.  Since then it has often been invoked, sometimes with success and sometimes not.  The following three points emerge from what was said in the Privy Council by Lord Diplock in Au Pui Kuen v Attorney General [1979] HKLR 16 at p.19 and in this Court by Lord Woolf in James Henry Ting v HKSAR (2007) 10 HKCFAR 632 at pp 651G-653H.  First, whether or not there should be a retrial is a matter of discretion.  Secondly, it depends on what justice requires.  And thirdly, it may involve balancing a number of factors some of which may weigh in favour of a retrial and some of which may weigh against it. 

270.  Despite how long ago the fatal incident took place, the time which Mrs Kissel has already spent in custody and the fact that she now appears to be in very poor health, I regard it just and proper, all things considered, that she be retried on a fresh indictment for murder.  I would so order.  What happens on that indictment is in hands other than those of this Court.

Custody or bail?

271.  If Mrs Kissel seeks bail, whether she be admitted to bail, or remanded in custody, pending retrial should be decided in an application to a judge of the retrial court.  I would order that, subject to any order for bail made in such an application (which no doubt could be brought on and dealt with expeditiously), Mrs Kissel be remanded in custody pending retrial.

Costs

272.  The final question is that of costs.  I would direct that costs be dealt with on written submissions.

Conclusion

273.  In the result and with an expression of my indebtedness to Mr McCoy and Mr Zervos for their assistance, I would : (i) allow the appeal to quash Mrs Kissel’s conviction; (ii) order that she be retried on a fresh indictment for murder; (iii) order that, subject to any order for bail that a judge of the retrial court may make, she be remanded in custody pending retrial; and (iv) direct that costs be dealt with on written submissions.  As to the disposal of this appeal, therefore, I am in complete agreement with the other members of the Court.

Chief Justice Li:

274.  The Court unanimously allows the appeal, quashes the conviction and orders a retrial.  The Court further orders that the appellant be remanded in custody pending retrial.  Any application by the appellant for bail should be made to the Court of First Instance.  The Court gives the directions on the filing of submissions as to costs set out in the concluding paragraph of the joint Judgment.

[1]    Cap 221.

[2]  Section 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.

[3]  [1983] 2 VR 130 at 131.

[4]    (1982) 66 CCC (2d) 300.

[5]    (1983) 1 SCR 660.

[6]  R v Soma (2003) 212 CLR 299 at 308-309.

[7]  Dyers v The Queen (2002) 210 CLR 285 at 293.

[8]  R v Treacy [1944] 2 All ER 229 at 236.

[9]  R v Gillespie and Simpson (1967) 51 Cr App R 172 at 175, 176, 177; R v Windass (1989) 89 Cr App R 258 at 262; R v McKenzie [2004] 1 NZLR 181 at 189.

[10]    [2000] 1 Qd R 290 at 297.

[11]  [1893] 2 Ch 381 at 385-386.

[12] [2007] 3 HKLRD 191.

[13] (2002) 210 CLR 285 at 293-294.

[14] [1974] 1 WLR 1204.

[15] [1992] Crim L R 822.

[16] (1989) 89 Cr App R 341.

[17] The Judge citing Subramaniam v Public Prosecutor [1956] 1 WLR 965; R v Blastland [1986] 1 AC 41; and Walton v The Queen (1989) 166 CLR 283.

[18] R v Blastland [1986] 1 AC 41 at 54; Walton v The Queen (1989) 166 CLR 283 at 288; and Wong Wai Man & Others v HKSAR (2000) 3 HKCFAR 322.

[19]  Secretary for Justice v Lam Tat Ming (2000) 3 HKCFAR 168.

[20] [2003] 2 Cr App R 35.

[21]    Unreported, English Court of Appeal, May 2, 1985.

[22] See R v Gordon [1995] 2 Cr App R 61 at 64. 

[23] [2003] 2 Cr App R 35.

[24]    Unreported, English Court of Appeal, May 2, 1985.

[25] [2003] 2 Cr App R 35, 528.

[26] At 535.

[27] Ibid.

[28] (1993) 69 A Crim R 208.

[29] At 218.

[30] (1970) 123 CLR 334 at 344.

[31] At 337.

[32]    Unreported, English Court of Appeal, May 2, 1985.

[33] Lexis Nexis transcript, p 5.

[34] (1936) 55 CLR 499 at 504-505.  See also the English and other authorities cited in Cross & Tapper on Evidence (10th Ed) at 211-212.

[35]    Summing-up p 19.

[36]    Summing-up p 54.

[37] At §475.

[38] Ibid.

[39] At §478.

[40] Ibid.

[41] At §484.

[42] At §485

[43] At §486.

[44] At §§507-508.

[45] At §§509-510.

[46] At §511.

[47] At §512-513.

[48] [1995] SLT 1090.

[49] At 1093.

[50] [1999] EWCA Crim 2120.

[51] [2005] EWCA Crim 3377.

[52] At §19.

[53] In §21.

[54] (2003) 20 CRNZ 319.

[55] At §25.

[56] See Alford v Magee (1952) 85 CLR 437 at 466.

[57]    Launder v HKSAR (2001) 4 HKCFAR 457 at 471E-F.  See also Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113 at 132H-I and Tam King Hon v HKSAR (2006) 9 HKCFAR 206 at 220B.