Judge's language may have baffled Kissel jury: lawyer

PUBLISHED : Tuesday, 15 April, 2008, 12:00am
UPDATED : Tuesday, 15 April, 2008, 12:00am

Hong Kong juries, while highly educated in most respects, would struggle with technical and long-winded legal arguments in English, counsel for Nancy Kissel argued yesterday.

It was the first day of Kissel's appeal against her 2005 conviction for the murder of her husband in November 2003.

A Court of First Instance jury found she had drugged Robert Kissel, a senior manager at investment bank Merrill Lynch, with a strawberry milkshake before bludgeoning him to death in the couple's bedroom with an antique lead ornament.

She later rolled the body up in a carpet and had it moved into a storeroom below a neighbouring building, where it was found by police on November 6, 2003.

Kissel, whose mother and father were in court yesterday, appeared drawn and weak as Gerard McCoy SC presented her case. Dressed in a black top and grey trousers, she had to be helped to her seat in the dock by a guard, and briefly burst into tears before the hearing began.

Mr McCoy told the Court of Appeal that there was expert opinion to suggest that a section of the trial judge's summing-up was so long that the jury's comprehension and understanding of the points before it must have been compromised.

He made an application for the court to admit evidence from two British forensic linguists that indicated the summing up, by Mr Justice Michael Lunn, may have caused the jury some problems. Not only was the language relatively complex, but critical elements of the defence case were delivered in a 'sustained formal monologue' of two hours and 28 minutes, among the longest the experts had encountered in their analysis of 158 comparable English cases.

As part of his application, Mr McCoy presented a study that showed Hong Kong university students could recall only 70 per cent of what they heard in the first 10 minutes of a given lecture, and just 20 per cent of what they had heard in the last 10 minutes.

Court vice-president Mr Justice Michael Stuart-Moore - joined by Justice of Appeal Mr Justice Frank Stock and Mr Justice Alan Wright - was sceptical of the use of such data. 'We are talking in that example of information being heard for the first time,' he said. 'This jury had been listening to this for three months.'

Mr Justice Stock also queried what two experts with no experience of Hong Kong juries aside from the materials placed before them by the defence could tell the court that the judges did not already know, or have a pretty good idea about.

The court eventually refused to admit the experts' evidence.

Earlier, Mr McCoy had challenged Mr Justice Lunn's instructions to the jury regarding the defences of self-defence and provocation, suggesting they were out of step with overseas jurisprudence and liable to preclude the jury from considering the evidence on its merits.

Acting deputy director of public prosecutions Kevin Zervos SC is expected to address those arguments when the appeal continues this morning.