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Hksar v Nancy Ann Kissel

Judgment Cited authorities 41 Cited in Precedent Map Related
Vincent
Judgment Date06 October 2008
Year2008
Judgement NumberCACC414/2005
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC000414/2005 HKSAR v. NANCY ANN KISSEL

CACC 414/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 414 OF 2005

(ON APPEAL FROM HCCC NO. 113 of 2004)

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BETWEEN
HKSAR Respondent
and
NANCY ANN KISSEL Appellant

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Before: Hon Stuart-Moore VP, Stock JA and Wright J

Dates of Hearing: 14 – 18, 21, 29 - 30 April, 2 and 6-7 May 2008

Date of Judgment: 6 October 2008

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J U D G M E N T

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The Judgment of the Court (to which each member has contributed):

TABLE OF CONTENTS

Background
Principal issues at trial
Case for the prosecution

Para. 1 - 5
6

Overview
Circumstances prior to the killing
Events following the killing
The police investigation
Medical and expert evidence
Min recalled and evidence in rebuttal discussed
Computer evidence
Case for the defence
Rebuttal evidence
Grounds of appeal
Ground 1: Timing and manner of summing up
Ground 2: Miscellaneous criticisms of the summing up
Ground 3: Directions on the finding of the baseball bat
Ground 4: Directions on depression and disassociative amnesia
Grounds 5 and 6: Cross-examination
Dr Wong’s report
The purpose of cross-examination
The cross-examination
Questions about consent to a report by Dr Yuen
The voir dire rule
The approach in bail applications
Adoption of evidence
Credibility or guilt
Miscellany
Ground 7: Professor Drummer’s report
Ground 8: Hearsay
Ground 9: Self-defence
Ground 10: Provocation
Ground 11: Diminished responsibility
Ground 12: Circumstantial evidence
Ground 13: Agreement on factual basis
Conclusion

7 - 22
23 - 63
64 - 92
93 - 102
103 - 126
127 - 130
131 – 134
135 - 202
203 - 209
210
211 - 235
236 - 264
265 - 266
267 - 271
272 - 278
279 - 288
289 - 305
306 - 317
318 - 338
339 - 345
346 - 383
384 - 405
406 - 416
417 - 438
439 - 451
452 - 514
515 - 543
544 - 554
555 - 605
606 - 615
616 - 625
626 - 631

BACKGROUND

1. On 19 May 2005, the appellant, Nancy Ann Kissel, was arraigned before Lunn J on a count which alleged that on 2 November 2003 she murdered her husband, Robert Peter Kissel (the deceased). She pleaded not guilty and on 7 June 2005, following several days of legal argument, mainly concerned with admissibility, a jury was duly sworn.

2. The trial involved lengthy and sometimes complex evidence. We were informed that the prosecution called fifty witnesses to give oral testimony. The statements of a further eighteen witnesses were read pursuant to the provisions of s. 65B of the Criminal Procedure Ordinance, Cap. 221 and the depositions taken on commission in the United States of America of four witnesses were read to the jury. Between them, the prosecution witnesses produced a total of over four hundred exhibits. Evidence called by the defence consisted of the appellant’s oral testimony and twelve other witnesses who produced a total of fifty-seven exhibits.

3.After the evidence had concluded on 24 August 2005, counsel on both sides each made a lengthy address to the jury and the summing up, which spanned three days, concluded at 12.30 pm on 1 September 2005. The jury returned with a verdict of guilty at 8.27 pm, following which the judge imposed a sentence of life imprisonment.

4. The appellant sought leave to appeal against conviction by a notice dated 28 September 2005. Subsequently, as the result no doubt of a number of changes in her legal representation, the grounds of appeal were amended at various stages. Even during the appeal hearing itself, completely new issues were still being raised on the appellant’s behalf by Mr Gerard McCoy SC. This, in turn, necessitated an adjournment of some days in order to enable Mr Kevin Zervos SC for the respondent to have sufficient time in which to respond.

5.In the light of the arguments we have heard, there are four grounds on which we consider that leave should be given, namely, grounds 5 and 6 (cross-examination), ground 8 (hearsay) and ground 10 (provocation). Accordingly, we shall grant leave and treat the hearing as the appeal.

PRINCIPAL ISSUES AT TRIAL

6.It was the case for the prosecution that the appellant killed the deceased in what amounted to a premeditated murder albeit she had apparently given little thought to the disposal of the body until after the deed had been done. Prior to trial, the prosecution had powerful circumstantial evidence that the appellant had killed the deceased but there was no direct evidence of this. When eventually it emerged at trial that there was no dispute that she had killed the deceased, the two principal issues which remained to be decided by the jury related to self-defence and provocation. The former was the appellant’s defence. The latter was properly left by the judge as an issue to be decided by the jury (against the wishes of Mr Alexander King SC who at that time was representing the appellant) after the judge had concluded that there was sufficient evidence on the testimony given by the appellant for provocation to be considered.

CASE FOR THE PROSECUTION

Overview

7. The prosecution alleged that the Kissels suffered a rapid breakdown in their relationship, after thirteen years of marriage, following a Christmas 2002 skiing holiday at Whistler in Canada. Within weeks, the deceased had installed ‘eBlaster’ spyware in her computer at home and in one of his computers to enable him to read e-mails and other data in the appellant’s computer. At the same time as this was happening, he exchanged e-mails with his sister in the USA concerning marriage counsellors. Later, following discussions with a work colleague, Mr David Noh, the deceased was supplied by him with a list of counsellors. Whilst the marriage was plainly facing difficulties, it seems that the deceased still hoped that it could be saved.

8.In March 2003, Hong Kong was afflicted by an outbreak of SARS and the appellant took her three young children to the family home at Vermont in the USA for about four months. During that time, the deceased stayed with them for most of the month of May.

9. An electrical technician, Mr Michael del Priore, had been employed to do work at the house in Vermont while the appellant was there and in due course he formed a sexual relationship with her. Just after the deceased returned to Hong Kong from Vermont, he instructed an American private detective agency run by Mr Frank Shea to carry out surveillance on the appellant who by then he suspected of having an affair with Mr del Priore. A surveillance report in June 2003 confirmed his suspicions. The deceased went to the USA for a further eight days at the end of June but a surveillance report and various e-mails thereafter showed that the appellant had continued the affair. A day before the deceased’s family returned from Vermont on 30 July 2003, the deceased took advice from solicitors specialising in divorce.

10. In July and August 2003, the deceased experienced a recurrence of a long-term spinal problem. Eventually, after ten days as an in-patient at the Adventist Hospital, the deceased went to the USA for surgery. The deceased was there from 3 to 23 August 2003, after which he was prescribed a sleeping pill marketed in the USA as ‘Ambien’.

11. The appellant spent some time in the USA while the deceased was in hospital but she returned to Hong Kong eight days earlier than he did. On 10 August 2003, the appellant made reference to her “crippled husband” in an entry in Outlook Express. After her return to Hong Kong and before the deceased’s return, the appellant conducted an internet search for the topics “sleeping pills overdose on sleeping pills, medications causing heart attacks, drug overdose”. She also made a computer diary entry which revealed her awareness that she had been followed by an “investigating firm”, adding: “I realize what the affair has done to him trust-wise”. Then, on 22 August 2003, the appellant acquired a second mobile telephone which she tried to keep secret by arranging for the billing address to be the school where she did voluntary work.

12. The entry in the appellant’s computer concerning sleeping pills and drug overdoses which featured in an eBlaster report, obviously was seen by the deceased because a print-out, which was highlighted in colour, was found in the deceased’s desk at work during the course of the police investigation in the second week of November 2003. Indeed, the deceased telephoned Mr Shea at the American detective agency to inform him that he thought he was being poisoned because he had drunk whisky from his decanter and had become “very woozy and disoriented”. Nevertheless, in spite of his concerns, the deceased made two visits in September 2003 with the appellant to see a marriage guidance counsellor.

13. Matters took a more sinister turn in October 2003. The appellant went to see Dr Annabelle Dytham on 23 October 2003 and obtained ten ‘Rohypnol’ tablets after she told the doctor that she was having sleeping problems. The difficulty was caused, she said, because of assaults on her by the deceased which had started a year earlier. Rohypnol was prescribed because the appellant said that she had tried her husband’s Ambien tablets and they were not strong enough. Five days later, the appellant returned to see Dr Dytham saying that she was sleeping better. She complained, however, of migraine and for this she was given medicine.

14. On 30 October 2003, the deceased was sent a list of divorce lawyers which went to the home e-mail address used by the appellant. This, the prosecution alleged, would have reinforced the fact that divorce was being contemplated by the deceased. He had, prior to his death, told Mr Noh, Ms Bryna O’Shea, a family friend, and Mr Robin Egerton, his solicitor, that he intended to discuss divorce...

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