HKSAR v. NANCY ANN KISSEL

HCCC 55/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 55 OF 2010

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R U L I N G

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1.  The defendant Nancy Ann Kissel is charged with the murder of her husband Robert Peter Kissel on 2^nd November 2003. Her retrial has been fixed to commence on 10^th January 2011. She now makes application for a permanent stay of proceedings on the principal basis that she will not be able to secure a fair trial, contrary to her constitutionally protected right to a fair trial under Article 10 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 87 of the Basic Law. This basis engages the first limb of the jurisdiction to stay criminal proceedings (the “fair trial limb”) set out in HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133. She further makes application for a permanent stay on the basis that, even if a fair trial might be possible, it would be an affront to the public conscience and/or oppressive to permit the prosecution to proceed in circumstances where the question of a retrial has only arisen because of prosecutorial misconduct at the first trial and where she will inevitably be placed at a handicap in her retrial. This basis corresponds to the second limb of the stay jurisdiction (the “affront limb”), albeit expressed in slightly different terms, in Lee Ming Tee.

2.  Although the two limbs should be regarded separately, there is a measure of overlap in the sense that much of the publicity which is said to render a retrial unfair concerns matters which the prosecution should never have raised, or been permitted to raise, at the original trial and which should never, therefore, have been received into the public domain.  Those matters also form the springboard for the affront argument.  Similarly, the defendant’s health issue is said to relate to both limbs: as a consequence of the affront and as further reason why a fair trial is impossible.  Nevertheless, it will be convenient to deal with the argument on the fair trial limb first since any consideration of the affront limb becomes somewhat otiose if the Court is of the view that the proceedings should be permanently stayed because a fair trial cannot be achieved.  If the application under the fair trial limb fails, much of what is said to prejudice a fair trial will provide the framework for the application under the affront limb.

The Fair Trial limb

3.  Mr Edward Fitzgerald QC, on behalf of the defendant Mrs Kissel, categorises the material which he submits renders a fair retrial impossible as (i) inadmissible material and prejudicial commentaries, which have come into the public domain as a result of injustices in the first trial, e.g. wrongful cross-examination, improper comments by the prosecution in closing submissions, and wrongful admission of prejudicial evidence; (ii) her wrongful conviction at the original trial and the massive scale of the subsequent adverse publicity painting her as an evil murderer; and (iii) the wrongful and much publicised rejection of her appeal by the Court of Appeal in strident and denunciatory terms, which has had the effect of destroying her credibility and undermining in advance any reliance on the defence of diminished responsibility.

4.  I shall examine that material in due course. Before doing so, however, it is important to establish the legal principles which govern applications for stay under the fair trial limb, and against which such material may be judged.

5.  It has been said in Lee Ming Tee that the granting of a permanent stay where the application derives from prejudicial pre-trial publicity is considered “a last resort” (at 189 E) and is “exceedingly rare” (at 190 A).  In the Australian case of R v Glennon (1992) 173 C.L.R. 592, which was applied in Lee Ming Tee, Mason CJ considered (at 605) that a permanent stay will only be ordered “in an extreme case”.  Apart from Tuckiar v R (1934) 52 C.L.R. 335, which he described as a “unique case” and which I shall mention again later, there had at the time Glennon was decided been no other instance in the judicial history of that country where a retrial was refused, the accused’s conviction having first been quashed, because of the potential prejudicial effect of pre-trial publicity.

6.  In England, although there have been cases where the courts have stayed proceedings under the fair trial limb on the grounds of pre-trial publicity, the Lord Chief Justice, Lord Phillips of Worth Matravers, observed in R v Abu Hamza (2007) QB 659 at 682 E that:

“In general, however, the courts have not been prepared to accede to submissions that publicity before a trial has made a fair trial impossible.”

He described the circumstances in R v McCann (1990) 92 Cr. App. R. 239 which led the Court of Appeal to quash the appellants’ convictions because of the impact of media coverage as “quite extraordinary” (at 682B).  The Court in McCann considered that the only way in which justice could be done after the publicity given to remarks on television by the distinguished, but by then retired, Lord Denning during the trial was to discharge the jury; although interestingly, it would still have ordered a retrial.  However, the Court was unable to do so because the appellants’ notices of application for leave to appeal were given before the section empowering the Court of Appeal to order retrials came into force.  In R v Wood (1996) 1 Cr. App. R. 207 a combination of prejudicial press material and unfairness in the summing-up led the Court of Appeal to quash the appellant’s conviction, although neither ground was of itself enough to unsettle the conviction.  The Court ordered a retrial notwithstanding the prejudicial publicity.  However, it is fair to point out that the Court considered that the prosecution evidence was hardly disputed and the appellant’s recollection of events would not have been disadvantaged by such an order.

7.  Perhaps the high water mark of the authorities in England for the defence in this area is R v Taylor and Taylor (1994) 98 Cr. App. R. 361 where the conviction was quashed, the Court feeling unable to order a retrial in view of the way in which the case had been reported.  Lord Phillips CJ in Abu Hamza later referred (at 682 C) to the strong characterisation of the press coverage, described by the Court in Taylor and Taylor as “unremitting, extensive, sensational, inaccurate and misleading”, while the Court in R v West (1996) 2 Cr. App. R. 374 at 386 F said of Taylor and Taylor that “there had been persistent misquotation in the course of the trial which undermined the defence.”

8.  The experience of these jurisdictions suggests that it is extremely rare for a court to order a permanent stay of proceedings on the basis that a fair trial is or may be rendered impossible by pre-trial publicity.  The reason is, as the Court went on to say in Lee Ming Tee (at 190 A):

“In most cases, while acknowledging that special care must be taken to counteract the possible effects of prejudicial publicity, the court places its faith in the jury, properly directed, to secure a fair trial for the accused.”

9.  The justification for the court placing its confidence in the jury was articulated by the President of the Queen’s Bench Division, Sir Igor Judge, in In re Barot (2006) EWCA Crim 2692 (at para. 31), a passage from which was cited with approval in Abu Hamza (at 682 H):

“There is a feature of our trial system which is sometimes overlooked or taken for granted. The collective experience of this constitution as well as the previous constitution of the court, both when we were in practice at the Bar and judicially, has demonstrated to us time and time again, that juries up and down the country have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial. They know that it is integral to their responsibility. It is, when all is said and done, their birthright; it is shared by each one of them with the defendant. They guard it faithfully. The integrity of the jury is an essential feature of our trial process. Juries follow the directions which the judge will give them to focus exclusively on the evidence and to ignore anything they may have heard or read out of court. No doubt in this case Butterfield J will give appropriate directions, tailor-made to the individual facts in the light of any trial post the sentencing hearing, after hearing submissions from counsel for the defendants. We cannot too strongly emphasise that the jury will follow them, not only because they will loyally abide by the directions of law which they will be given by the judge, but also because the directions themselves will appeal directly to their own instinctive and fundamental belief in the need for the trial process to be fair.”

10.  When dealing with an argument to the contrary mounted in Montgomery v H M Advocate (2003) 1 A.C. 641 at 674 A, Lord Hope of Craighead described the court’s faith in the jury as an “assumption” underlying the whole system of trial by jury:

“The judges in the court below relied on their own experience, both as counsel and as judges, of the way in which juries behave and of the way in which criminal trials are conducted. Mr O’Grady submitted that there was no basis upon which one could assess the likely effect of any directions by the trial judge. He said that this was something that was incapable of being proved. But the entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence.”

Lord Hope went on to point out that Scotland was not alone in proceeding on this assumption, citing high authority in Canada, Ireland and Australia.  Indeed, he specifically referred to a passage in the judgment of Mason CJ in Glennon (at 603), which was itself cited with approval in Lee Ming Tee (at 190 B):

“The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence.”

11.  In the recent case of Dupas v The Queen (2010) 84 ALJR 488 the High Court of Australia added this refinement to the assumption that juries follow such instructions (at 494):

“The assumed efficacy of the jury system of which Windeyer J spoke, whereby the law proceeds on the basis that the jury acts on the evidence and in accordance with the directions of the judge, represents the policy of the common law and is more akin to a species of “constitutional fact”, in the sense of that term explained by Heydon J in Thomas v Mowbray.

Whilst the criminal justice system assumes the efficacy of juries, that “does not involve the assumption that their decision-making is unaffected by matters of possible prejudice”.  In Glennon, Mason CJ and Toohey J recognized that “[t]he possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial”.  What, however, is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations.  That capacity is critical to ensuring that criminal proceedings are fair to an accused.”

Whilst the courts place a high value on the assumption that juries will follow judicial directions and put aside extraneous prejudicial material, there are undoubtedly cases which recognise that such is the quality and extent of the prejudice that a fair trial is not possible, however careful or prudent a judge may be in his conduct of proceedings and judicial directions.  Tuckiar and Taylor and Taylor are examples of where a prospective trial was stayed for that reason.  The first instance decision of Garland J in R v Reade & others (unrep.) on 15^th October 1993 is another.  Both McCann and Wood are examples of where the Court in retrospect considered a fair trial had been prejudiced, although in both cases, as I have pointed out, the Court said a retrial would have been appropriate.

12.  In the recent decision of Skilling v United States (2010) U.S. Lexis 5259, the US Supreme Court has had occasion to review the law in this area in the wake of the extensive and hostile publicity which followed the collapse of Enron Corporation in the United States.  Whilst care must be taken in relying in this regard upon authority from that jurisdiction, since jurors can be closely questioned before empanelment in voir dire proceedings to determine their impartiality, the Court cited three cases where convictions had been overturned by the U.S. Supreme Court, having been obtained in a trial atmosphere that was said to have been “utterly corrupted by press coverage”.  One of those cases, Rideau v Louisiana 373 U.S. 723 (1963) seems to me to have been a good example of circumstances where a fair trial was considered to be impossible whatever the care and skill of the judge’s directions, because anyone watching television would have seen, on no less than three occasions, the broadcast of a film of the defendant in jail flanked by the sheriff and two state troopers, taken without his consent and in the absence of his counsel, admitting in detail the commission of the robbery, kidnapping and murder.  The Court in Rideau characterised these events as “kangaroo court proceedings” (at 727).  Ginsburg J, delivering the opinion of the court in Skilling, considered that:

“although news stories about Skilling were not kind, they contained no confession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight. Rideau’s dramatically staged admission of guilt, for instance, was likely imprinted indelibly in the mind of anyone who watched it.”

She endorsed an observation made in a Federal Court of Appeal case that:

“A jury may have difficulty in disbelieving or forgetting a defendant’s opinion of his own guilt but have no difficulty in rejecting the opinions of others because they may not be well-founded.”

13.  This same reasoning would account for the Australian decision of Tuckiar, where the defendant’s own counsel had publicly stated after conviction that his client’s confession was true.  As the High Court in Dupas explained (at 495):

“In Tuckiar, unfairness to the accused at a retrial, which could not be relieved against, was, as Brennan J said (in Glennon), “the certain knowledge of his guilt”, revealed in open court by his counsel at his first trial.  There is a difference between media opinion as to guilt and a public revelation of guilt by an accused’s own counsel.  The unfair consequences of the former can be relieved against by direction from the trial judge whereas the unfair consequences of the latter cannot be remedied.”

14.  The two other cases cited by Ginsburg J in Skilling, in which media coverage had “manifestly tainted a criminal prosecution”, were Estes v Texas 381 U.S. 532 (1965) and Sheppard v Maxwell  384 U.S. 333 (1966).  In the former, the media’s over-zealous reporting efforts had led to considerable disruption of the trial, while in the latter “bedlam” had reigned over the courthouse and a “carnival atmosphere” pervaded the trial.

15.  I do not wish to define the type of circumstances where a stay might be ordered as a result of prejudicial pre-trial publicity or to suggest that certain circumstances or indicia must be present before a court can contemplate staying proceedings.  Any court which attempts to do so would soon regret such a course when confronted with new permutations of circumstance, which did not easily fit within its own prescribed limitations.  The courts have clearly regarded the prejudicial reporting of a defendant’s confession prior to trial as of particular concern in this area but, as Mr Fitzgerald points out, there may be other prejudicial matters, which are similarly, in the words of Lord Bingham in A-G v Sport Newspapers Ltd. (1991) 1 W.L.R. 1194 at 1208,

“simple, easy to grasp and likely to be remembered, or to be recalled, by anyone who read the paper (or was informed of its contents) and later came to try the case.”

Although Sport Newspapers Ltd. was decided in the context of contempt proceedings, to which proceedings Mason CJ in Glennon (at 598) considered different criteria applied in determining whether pre-trial publicity amounted to a contempt or whether pre-trial publicity precluded a fair trial, the Court was concerned with a publication which (at 1208) “gave sensational publicity to information which may never, in the ordinary way, be disclosed to jurors in a criminal trial.”  I can conceive that there may, apart from inadmissible confessions, be other types of prejudicial material or evidence, which should never in the ordinary course be disclosed to a jury, and which, by virtue of the scale and quality of the publicity attaching to them, so compromise a fair trial that a permanent stay of proceedings should be ordered.

16.  Whatever the circumstances, the test to be applied to pre-trial publicity is that stated in Stuurman v H M Advocate (1980) JC 111 at 122, as approved in  Montgomery (at 673 D) and Lee Ming Tee (at 190 F), namely,

“whether the risk of prejudice is so grave that no direction of the trial judge, however careful, could reasonably be expected to remove it.”

A similar test has been propounded in Australia in Dupas (at 495), namely,

“whether an apprehended defect in a trial is of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequence.”

However one puts it, the exercise requires from a trial judge an assessment of the risk of prejudice and an evaluation of the effectiveness of the means to prevent it.

17.  Mr David Perry QC, for the prosecution, acknowledges that there has been widespread and prolonged publicity surrounding these proceedings, some of which is hostile to the defendant, and accepts that any residual effect on the minds of at least some members of the jury cannot be regarded as negligible.  However, he submits that any risk of unfairness can be avoided by the safeguards in the trial process and the conduct of the trial by the trial judge.  His position echoes in terms the words of Lord Hope in Montgomery (at 673 G), which were repeated by the Court of Appeal in Abu Hamza (at 683 F);in both of which cases there had been sustained and hostile publicity.  In the case of Abu Hamza for example, the Court found there was “a prolonged barrage of adverse publicity, some of which treated the appellant as an ogre” (at 685 E), while in Montgomery, a campaign was effectively waged in the press to bring the appellant to trial.

18.  In my judgment, Mr Perry is right to make that concession: anything less would have been unrealistic in the face of the sheer volume of publicity in this case, some of it plainly hostile to the defendant, some of it less so, with the potential to put at risk the fairness of the trial.  What I have to decide is whether or not that risk is so grave that no direction I can give, however careful, can reasonably be expected to remove it.  (By ‘direction’ I include not only legal directions in a summing-up but such warnings, directions and other steps which may be necessary to give or take before and during the course of trial).  And in order to answer that question, I have needed to examine carefully the material itself and the means realistically open to me to deal with its potential effects.

19.  In Lee Ming Tee the Court observed (at 191 C) that “there is good sense in regarding a jury, properly directed, as able to overcome prejudicial publicity in the vast majority of cases” and gave two reasons for that confidence.  The first is that a juror’s recollection of any adverse publicity may be expected to fade with the passage of time: the so-called ‘fade factor’.  The second is that the nature and atmosphere of the trial process itself enables the jury to concentrate on the actual evidence presented and tested before it: the so-called ‘drama of the trial factor’.  It is true that the defendant’s first trial concluded more than 5 years ago. However, clearly the case has been kept alive in the media not simply because of the Court of Appeal hearing in 2008 and the Court of Final Appeal hearing earlier this year, but by the plethora of books, documentaries and film, newspaper articles and weblogs in the intervening period.  Whilst memories of the first trial may well have faded, interest in the case does not seem to have waned.  I tend to agree with Mr Fitzgerald that the ‘fade factor’ may not have quite as neutralising an effect in this case as it might have in a case of less notoriety, although I am more concerned in this regard with the fading of those matters which potentially prejudice a fair trial rather than the fading of the case from public memory or consciousness generally.

20.  So far as ‘the drama of the trial factor’ is concerned, I endorse completely the observations of the Court in Lee Ming Tee (at 191 I) and Montgomery:

“Whatever impression of the case members of the jury may have gained beforehand, at the trial, they are given direct, first hand access to the actual evidence in the case, presented systematically and in detail, with live witnesses tested by cross-examination and exhibits tendered for inspection. They are addressed as to the significance of such evidence by counsel on both sides and guided by the impartial summing-up of the judge.  Many jurors will already harbour a healthy skepticism about certain kinds of press reporting. They can be credited with the intelligence to realize that whatever may have been reported, they are far better placed at the trial to make up their own minds on the evidence, with the help of the judge’s direction.  It is well-recognised that in such circumstances, immersed in what Lawton J called “the drama of a trial” ( R v Kray (1969) 53 Cr App R 412 at p.415), the residual effects of any prejudicial pre-trial publicity on the minds of the jury are likely to be minimal.

This view accords with that expressed by Lord Hope in Montgomery v HM Advocate [2000] 2 WLR 779:

“The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand there is the discipline to which the jury will be subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media. This impact can be expected to be reinforced on the other hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds, in particular when he delivers his charge before they retire to consider their verdict.””

See also In re Barot (see para. 9 supra)and West at 385-6.

21.  Shortly before the passage referred to in Montgomery above, Lord Hope cited (at 673 F) some research, which at that time had recently been conducted for the New Zealand Law Commission, suggesting that the impact of pre-trial publicity and of prejudicial media coverage during trial, even in high profile cases, is minimal.  Mr Fitzgerald is somewhat scathing, albeit politely, of Lord Hope’s reliance on this single piece of research and has placed before me three further studies, two from the United States and one from the United Kingdom, whose conclusions are at variance with the New Zealand research.  I have read those papers with some interest but it seems to me that any study which involves a written transcript of evidence and judicial instructions being given to different groups of mock jurors, who have been exposed or not exposed to pre-trial publicity, or exposed to different forms or levels of pre-trial publicity, is likely to suffer from the defect that there will be an absence of the drama of a real trial.  Nor is a written transcript likely to have the same impact on jurors, or convey the emphasis and importance which a judge can instil verbally in a jury in a courtroom setting, when dealing with extraneous prejudicial material.  With respect, I am doubtful as to the usefulness and efficacy of such studies, as against the experience of real judges and practitioners, and real trials.

22.  I am nevertheless mindful of the view expressed by Lord Mance in R v Coutts (2006) 1 W.L.R. 2154 at 2193 A that:

“One is entitled to assume that juries go about their task in the utmost good faith, but the concern is with subconscious as well as conscious reactions.”

I am also aware that the Court in Abu Hamza (at 684 B) considered there was a degree of tension between the approach of the House of Lords in Coutts and Lord Hope’s observations in Montgomery about the trust which can be reposed in juries.  The Court in Abu Hamza answered that tension in the following way (at 684 C):

“The risk that members of a jury may be affected by prejudice is one that cannot wholly be eliminated. Any member may bring personal prejudices to the jury room and equally there will be a risk that a jury may disregard the directions of the judge when they consider that they are contrary to what justice requires. Our legal principles are designed to reduce such risks to the minimum, but they cannot obviate them altogether if those reasonably suspected of criminal conduct are to be brought to trial. The requirement that a viable alternative verdict be left to the jury is beneficial in reducing the risk that the jury may not decide the case in accordance with the directions of the judge. Prejudicial publicity renders more difficult the task of the court, that is of the judge and jury together, in trying the case fairly. Our laws of contempt of court are designed to prevent the media from interfering with the due process of justice by making it more difficult to conduct a fair trial. The fact, however, that adverse publicity may have risked prejudicing a fair trial is no reason for not proceeding with the trial if the judge concludes that, with his assistance, it will be possible to have a fair trial. In considering this question it is right for the judge to have regard to his own experience and that of his fellow judges as to the manner in which juries normally perform their duties.”

23.  Accordingly, mindful of Lord Mance’s concern, we come back to the question of whether or not the risk of pre-trial publicity prejudicing a fair trial for the defendant in this case is so grave that no direction (or other assistance) I can give, however careful, can reasonably be expected to remove it.  It is to that question, in the light of the principles I have discussed above, that I now turn.

24.  The Court of Final Appeal has, by its judgment delivered in February this year, held that the prosecution at the original trial was wrong to rely on the hearsay assertions of two witnesses, Bryna O’Shea and Frank Shea, as evidence that the defendant had in fact been previously trying to poison the deceased and then to suggest to the jury that there was “a causal link” between the earlier poisoning attempts and the deceased’s death which arose through inaction on his part because of his own feelings of guilt for suspecting his wife’s ill intentions (Court of Final Appeal judgment at para. 129).  The Court termed such submission as “grossly prejudicial and quite improper” (para. 130).  Bokhary PJ further described prosecuting counsel’s invitation to the jury to take the view that the man with whom the defendant was having a liaison, Michael del Priore, had given her “tacit encouragement” to “remove” her husband as opening up “an extremely dangerous line of prejudicial speculation” (para. 224).

25.  I have examined the media reports on these particular matters with the assistance of schedules helpfully prepared by the defence and annexed to their submissions.  The suggestion that the defendant had previously been trying to poison the deceased has been made and repeated in various English and Chinese language media reports on 8^th June, 13^th June, 14^th June, 30^th July, 1^st August, 10^th August, 11^th August, 27^th August and 2^nd September 2005, 17^th April, 30^th April and 7^th October 2008, 17^th April 2009, 15^th January, 21^st January, 10^th February, 12^th February, 15^th February and 4^th March 2010.  The suggestion that Michael del Priore had tacitly encouraged the defendant to kill the deceased appeared on 27^th August, 2^nd September, 3^rd September and 8^th September 2005.

26.  The suggestions that the defendant was trying to poison the deceased and that Michael del Priore connived in the killing are also made with varying degrees of emphasis or insinuation in the books “Never Enough”, first published in 2007, and “A Family Cursed”, first published in 2008, as well as the film “The Two Mr Kissels”, released in November 2008.  The CBS documentary “Blood and Money – The Killing of Two Brothers Thousands of Miles Apart” and the NBC programme “Blood Brothers” also deal with the earlier alleged poisoning attempts.  The Wikipedia entry relating to the defendant is somewhat more circumspect today than it has been in the past few years, particularly in the two areas of concern.  However, it is right to point out that a number of impugned sources and materials are cited in the ‘Reference’ and ‘External Links’ of the web-page.

27.  In my view, prejudice occasioned by aspersions cast on Michael del Priore, and the speculation it potentially engendered, is something which may readily be dealt with by the conventional warning to a jury not to speculate.  I note that the joint judgment of the four members of the Court of Final Appeal did not anywhere refer to this matter in its reasoning, while the newspaper reports at the time of the Court of Appeal hearing and the Court of Final Appeal hearing did not mention it at all.  When it surfaced in the newspapers as a result of a suggestion made during the closing address of prosecuting counsel more than 5 years ago, the South China Morning Post also carried a report on 8^th September 2005 to the effect that the police “did explore a link between (the defendant) and Mr del Priore at the start of the investigation, and found no evidence suggesting any direct link between the Vermont-based TV repairman and the crime.” Although the suggestion and the implication which it carried has continued to be made in some of the other publicity materials I have referred to, I am confident that the conventional warning during any summing-up would be sufficient to dispel any prejudice which might have been occasioned by this matter.

28.  In relation to the suggestion that the defendant had previously been trying to poison the deceased, this notion is not only more wide-spread in various publicity materials, but it has been a common theme of most reports since the matter first emerged in the evidence of Bryna O’Shea and Frank Shea at the original trial.  The Court of Final Appeal having held that the evidence should not have been introduced by the prosecution, it will presumably not be led again at any retrial.  Accordingly, the jury will focus on the limited admissible evidence from the two witnesses placed before them. I would be confident that any jury would obey the enjoinder from a judge to consider only the evidence they have heard in court and to ignore anything they may have heard about, or which may have been attributed to, a witness from any other source whatsoever.  If the prosecution can point to evidence at trial which indicates premeditation on the defendant’s part, the jury will be reminded in the normal course of such evidence in the summing-up as part of the general review of the evidence.  In so doing, they will be reminded not to go outside the evidence they have heard in the courtroom.  They will be specifically directed on the proper drawing of irresistible inferences and warned against improper speculation.  These directions together with necessary warnings and injunctions given to the jury at the beginning of the trial and repeated in the summing-up (and on such other occasions as necessarily present themselves during the trial) about ignoring anything they may have seen or heard in any medium about this case outside court, including the internet (about which I shall say something later), should be sufficient to neutralise any potential prejudice from the impugned material.

29.  These same strictures will also apply to any other matters which, although ruled inadmissible at the original trial, have somehow entered the public domain.

30.  Inevitably, following the defendant’s conviction, the press has proceeded on the basis that she is a murderer. Undoubtedly some of the press reports which have ensued proceed on that assumption and are both lurid and hostile to the defendant, as are some of the views expressed on the internet in weblogs.  The various depictions of the defendant in book and film do indeed paint her as a cold and calculating killer.  While I am confident that much of the latter material would be dismissed by most who actually read or saw it as a rather sensational and one-sided dramatisation not very convincingly told or portrayed, one must be alive to the chance that some of this characterisation might stick in the mind of the reader or viewer.

31.  It is not uncommon for notorious cases to be at the receiving end of sometimes very hostile and unflattering publicity.  As the Court observed in Lee Ming Tee (at 189 E):

“In a society where the press is free it is inevitable that the reporting of crime will, in some sections of the media, be lurid and sensationalist, sometimes even at the risk of punishment for contempt. The more heinous or shocking a particular crime, the more it is likely to be given notoriety and to receive potentially prejudicial reporting. Jurors will therefore almost certainly have been exposed to some degree to such media coverage, prejudicial to the accused. Plainly, it is not in the public interest to permit this in itself to abort the prosecution of a person accused of such serious crimes.”

The Court then referred to West to make the point (at 189 G) that simply because a crime of murder may be sufficiently horrendous to shock the public resulting in intense publicity adverse to the accused does not mean that he/she cannot receive a fair trial.  The same was said in Abu Hamza (at 682 D).

32.  In West, the Court said this of the press coverage at the trial (at 385 F):

“There is no doubt that this was extensive and hostile to the Wests.  It occurred most fully in two tranches.  The first was upon the discovery of the buried bodies.  The second followed upon Fred West’s suicide. Much of the press coverage was directed at Fred.  There were references to “House of Horrors”.  There was criticism of the authorities for failing to stop West’s murderous course when he was before the magistrates’ court with the applicant in 1973.  It is true that there were also reports which were adverse to the applicant, referring to her as a nymphomaniac and a prostitute.  But, however lurid the reporting, there can scarcely ever have been a case more calculated to shock the public who were entitled to know the facts.”

In Abu Hamza, the Court was similarly faced with a trial which had taken place against a campaign of sustained hostility in the press and elsewhere against the appellant.  The Court said this of that publicity and the trial judge’s approach to it (at 658D):

“The Judge referred to these matters and to the 600 pages of newspaper reports, articles and comments spanning the period from the beginning of 2003 to March 2005, which have also been placed before us, and treated them merely as samples of a sustained campaign against the defendant, almost entirely hostile to him and some of it couched in particularly crude terms. There was indeed a prolonged barrage of adverse publicity, some of which treated the appellant as an ogre. The judge remarked at p 46 of his first ruling that he had no doubt that the publicity would have created a risk that the fairness of the defendant’s trial might be adversely affected. The judge went on to consider whether this was a risk that he would be able to avoid.”

The Court agreed (at 686 H) with the trial judge’s conclusion that:

“with proper direction a jury would be able to bring impartial judgment to the case and to decide whether, despite being labelled by some as a public enemy, the defendant really did commit the offences with which he was charged.”

33.  It is not necessary (even were it possible) to find members of a jury who know nothing of a particular case.  Nor does their knowledge through the media of a crime or a defendant mean that they cannot fairly try the case solely on the evidence produced before them without being influenced by what they have seen or heard, however lurid and sensational. As Ginsburg J put it in Skilling:

“Prominence does not necessarily produce prejudice, and juror impartiality…. does not require ignorance.”

I am not going to suggest that because the tenor of the publicity in West and Abu Hamza was as bad if not worse than the publicity in this case that, therefore, these proceedings should likewise not be stayed. But I might observe that those cases stirred up considerable emotions and public animosityagainst the accused for what they had each allegedly done in and to their respective communities.  If I say that the allegation in this case is of a crime in a domestic setting, it is not to trivialise or diminish its seriousness but to point out that, while any publicity may well have elicited opinions in some sections of the community, it is less likely to provoke the sort of strong emotional response which might otherwise be provoked from a public or community which feels itself personally engaged or touched by a crime.

34.  In my judgment, neither the quality nor the extent of that publicity which has gone beyond the factual and is personally hostile to the defendant is such that any prejudice arising from it cannot be removed by proper and emphatic directions to the jury at the beginning and end of the trial (as well as on other suitable occasions which present themselves for such warnings during the trial) to ignore anything they may have seen or heard anywhere previously outside court about this case in any medium, and to concentrate as a matter of sworn duty only on the evidence produced before them in court.  This would be in addition to directions warning the jury to disregard emotive considerations but to base their findings of fact and their verdict on an objective appraisal of the evidence, uninfluenced by anything they may have seen or heard about this case.  I shall deal with my directions concerning information available on the internet in due course.

35.  I come now to a matter which I confess has given me considerable cause for concern.  When the Court of Appeal delivered its judgment on 6^th October 2008, it concluded its lengthy judgment with the statement (Court of Appeal judgment at para. 630):

“This was as cogent a case of murder as might be imagined.”

It then went on to give a number of reasons why this was so before dismissing the appeal.  It had earlier referred to the question of diminished responsibility, which was not a consideration put before the jury in the learned judge’s summing up at the original trial.  As the Court explained (at para. 566):

“Given the way in which the case had developed and, in particular, the appellant’s testimony, the decision to abandon the defence of diminished responsibility is readily understandable for, by that stage, it had no prospect of success.”

36.  The Court’s statement about this being “as cogent a case of murder as might be imagined” is a very strong one.  It was quoted in terms in the Associated Press release of 6^th October 2008, the South China Morning Post on 7^th October 2008, and to similar effect in translation in several local Chinese newspapers at the time and was later repeated, for example, on Wikipedia until 6^th March 2010.  It was perhaps because it was such a strong statement that Bokhary PJ in the Court of Final Appeal took specific issue with it and endeavoured to deal one by one with the Court of Appeal’s reasons for so saying.  However, Bokhary PJ’s response has not been given the same (or indeed any) coverage in the press as the statement from the Court of Appeal which he was addressing.

37.  In the result, I have to determine whether I am able to remove any potential prejudice which may arise from the Court of Appeal’s statement, which, as I say, was widely reported in the press at the time.  I have, since submissions were made to me, discovered on re-reading the press material supplied by the defence that the matter was articulated somewhat more pointedly by Time magazine in the following way on 15^th February 2010:

“How could a lower court call the case “as cogent …. as might be imagined” if the top court found such glaring problems? It’s a glaring question for Hong Kong’s judicial system to answer.”

The article concludes in the following paragraph with these words:

“As (a prominent lawyer) told reporters last week, “Can the milk-shake murderer get a fair trial in Hong Kong? Probably not.” In the end that might be her strongest argument.”

38.  I have come to the decided view that notwithstanding this concern, the defendant can get a fair trial.  Apart from the warnings and directions which I have indicated I can give in relation to ignoring any material whatsoever from whatever source which has not emanated in evidence from the courtroom, and to deciding the case only on the evidence adduced in the courtroom, the jury would be directed on the live issues in this case.  I am confident that any jury properly directed will be focused on the issues presented before them, and the verdict available to them, and not on the issues said to be before another jury.  And they will know that this case has come back for trial for good reason as a result of the decision of Hong Kong’s highest court.  In this regard, I should mention that I am not persuaded that a jury would regard the allowing of the appeal on “technical” grounds, whatever that may mean, as described for example in Wenweipo and the South China Morning Post on 2^nd September 2010, as in anyway absolving them from properly trying the case according to the evidence.

39.  The same applies to the defence concern about the Court of Appeal’s judgment being “wrongly denunciatory of (the defendant’s) credibility and the opinions of the experts who compiled expert reports relating to her mental state”, which matters were indeed reported in the wake of the Court of Appeal and the Court of Final Appeal hearings.  Frankly, I doubt this matter would have been interpreted or understood in quite the significant or negative way it is suggested, even if it were to be remembered at a retrial where the focus and defence will be significantly different from the first trial.

40.  During argument, I raised the question of whether and if so how I might go further in relation to the matter of the Court of Appeal’s judgment with the jury, perhaps by specifically requiring them to put out of their minds anything they had seen or heard from the judgments (or reports of judgments) from other courts in this case, along the lines perhaps that the issues, evidence, counsel and judge in this case are now different and call for a completely fresh approach.  Without going into detail, I could say that Hong Kong’s highest court has for good reason found that the first trial was flawed and unfair and it is my and their task to ensure that this trial is fair, which they can best do by adhering faithfully to my instructions as to the evidence adduced and issues arising in this court alone.  As to how far I should go, I would invite submissions from the parties, and in particular from the defence, prior to empanelment of the jury.

41.  It is at this juncture I should say something about the internet and any researches which jurors might be tempted to make during the currency of any trial (or retrial), particularly where there has been extensive publicity attaching to the case.  The Court of Appeal in England in R v Thompson and others (2010) EWCA 1623 has very recently reviewed (at para. 12) the guidance which needs to be given to jurors in this area:

“Jurors need to understand that although the internet is part of their daily lives, the case must not be researched there, or discussed there (for example, on social networking sites), any more than it can be researched with, or discussed amongst friends or family, and for the same reason. The reason is easy for jurors to understand. Research of this kind may affect their decision, whether consciously or unconsciously, yet at the same time, neither side at trial will know what consideration might be entering into their deliberations and will therefore not be able to address arguments about it. This would represent a departure from the basic principle which requires that the defendant be tried on the evidence admitted and heard by them in court. Again, we do not purport to lay down a standard form of words; the sense of the message is familiar to all judges. What matters is that it should be explicitly related to the use of the internet. We recommend a direction in which the principle is explained not in terms which imply that the judge is making a polite request, but that he is giving an order necessary for the fair conduct of the trial. Such a direction will naturally fall to be given at the outset of the trial, in the same way as the direction as to collective responsibility addressed earlier in this judgment.”

42.  I respectfully agree notwithstanding the comments of the New Zealand Court of Appeal in R v B (2009) 1 NZLR 293 at 311.  And although such a direction as envisaged in Thompson has not been formulated yet as a standard judicial direction in Hong Kong, I would intend in a case such as this to explain to a jury the rationale behind the direction in the context of the paramount importance of ensuring a fair trial for the defendant.  They would be told that that objective will be confounded if they resort to or rely on their own researches instead of adhering strictly to the evidence adduced before them in court.

43.  Finally, in advancing argument under the fair trial limb, it is submitted that the defendant may not get a fair trial, particularly because her mental condition is now such that her ability to give evidence will be seriously impaired and she will, accordingly, be less able to do justice to herself than at the first trial.  Whilst Mr Fitzgerald acknowledges that her mental state (which, in any event, is disputed and may be the subject of expert evidence from the prosecution in due course) is not such as to bring her within the unfitness to plead test set out in the 5-member Court of Appeal judgment of R v Podola (1959) 43 Cr. App. R. 220, he argues that it is nevertheless a further factor supporting the contention that a fair trial is impossible.  He argues that the defendant will be “unable to participate effectively” in the proceedings in consequence of which she will be denied a fair hearing: see V v The United Kingdom (Application No. 24888 of 1994), 16^th December 1999.  With respect, I consider the circumstances in V v The United Kingdom somewhat different to this case.  V was an 11-year- old child tried in the full glare of public attention, the “formality and ritual” of whose trial “must at times have seemed incomprehensible and intimidating” (at para. 88).  The Court found (at para. 90) that it was

“highly unlikely that the applicant would have felt sufficiently uninhibited, in the tense courtroom and under public scrutiny, to have consulted with them during the trial or, indeed, that, given his immaturity and his disturbed emotional state, he would have been capable outside the courtroom of cooperating with his lawyers and giving them information for the purpose of his defence.”

44.  It is by no means uncommon for defendants on trial in the High Court to experience varying degrees of tension, fear, even anguish.  However, a mature adult ought to be able to cope with these exigencies far better than a child.  If the defendant is unable to give evidence or unable to answer questions fully because of her mental state, that is no doubt something which will be explicable by evidence to a jury, and which they will weigh in considering her case.  If, in the course of giving evidence, she requires for example more frequent breaks or adjournments for time to do herself justice, that is something I would obviously be amenable to.

45.  I am not persuaded that this factor, alone or in conjunction with the other matters advanced on the defendant’s behalf in this application, would prevent her from receiving a fair trial.

46.  I do not pretend to have dealt in this ruling, which is already lengthy, with every point raised in this application. However, I have dealt with the significant matters of potential prejudice to which I have been taken in argument.  Although I have in the course of this ruling addressed those particular areas of concern and asked myself whether a fair trial is still possible in accordance with the test I have earlier set out, I have also asked myself whether looking at all of these matters cumulatively they yield of a different answer.  I have to say they do not.  I am confident that with careful guidance, which will include warnings, directions and orders properly explained and repeated as appropriate, the defendant will get a fair trial.  Accordingly, I do not accede to the application to stay these proceedings on the ground that a fair trial is impossible.

The Affront limb

47.  I can deal with the application under this limb rather more quickly.  For I do not think that any prosecutorial conduct at the original trial resulting in the dissemination of inadmissible evidence and improper comment in the press and leading to the inevitable anguish and personal difficulties for the defendant of a retrial, comes anywhere near engaging the power to stop a prosecution, which Viscount Dilhorne considered in DPP v Humphrys (1977) AC 1 at 26E should only be used “in the most exceptional circumstances.”

48.  The Court of Final Appeal in HKSAR v Lee Ming Tee & Securities and Futures Commission (Intervener) (2003) 6 HKCFAR 336 at 394 applied the case of R v Latif (1996) 1 WLR 104, which at 112 G had held:

“The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed.”

The Court went on at 394 I to say:

“It is generally recognised that only in exceptional circumstances will a stay be granted when a fair trial is possible. An indication of what this means is conveyed by L’Heureux-Dubé J’s observations in R v O’Connor (1996) 130 DLR (4^th) 235 at p. 277B-C:

“… a stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.”

In the absence of a finding of “bad faith”, this standard will rarely, if ever be satisfied in a case where a fair trial is still possible. Even if there be a finding of “bad faith”, that finding would not necessarily conclude the matter.”

Mr Fitzgerald has been somewhat diffident about suggesting bad faith on the part of the prosecution: rather, he puts the application on the basis that the prosecution should not be able to benefit from their own misconduct at the earlier trial.  Alternatively, the defendant should not be handicapped by reason of prosecutorial misconduct at that trial.

49.  As for identifying the features of a case where a stay under this limb may be considered, I accept Lord Bingham’s opinion in Attorney-General’s Reference (No.2 of 2001) (2004) AC 72 at 90 D that:

“It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant’s Convention right.”

He had earlier indicated that, absent bad faith, a prosecutor’s breach of professional duty might be such as to make it unfair that the proceedings against a defendant should continue.  However, I do not think the sort of breach Lord Bingham had in mind would embrace the conduct of the prosecution at the first trial which is impugned in this application.

50.  Lord Steyn had indeed earlier remarked in Latif at 113 A:

“An infinite variety of cases could arise.”

However, I regret to say that in my judgment this is not one of them.  Whilst I recognize the “serious burden imposed upon the defendant of facing yet a second lengthy trial” (Lee Ming Tee & Securities and Futures Commission at 396 B) and the mental anguish and difficulties of the defendant in facing a retrial, there is also a public interest under the affront limb in bringing serious crimes to trial.  Weighing the various considerations of policy and justice, and bearing fully in mind what has occasioned the allowing of the defendant’s appeal and the ordering of her retrial, I am not persuaded there is an abuse of process which would justify a stay of proceedings under this limb of the application.

Conclusion

51.  The application for a permanent stay of proceedings is refused.