Judge gave Kissel jury 'proper instructions'

PUBLISHED : Wednesday, 30 April, 2008, 12:00am
UPDATED : Wednesday, 30 April, 2008, 12:00am

The judge at Nancy Kissel's murder trial had properly instructed the jury on how they should treat testimony about what Robert Kissel may have told other people about suspicions that his wife was trying to kill him, the Court of Appeal heard yesterday.

Acting deputy director of public prosecutions Kevin Zervos SC yesterday began his rebuttal of several points made by Kissel's legal team a week and a half ago. It was the seventh day of a scheduled eight-day appeal against her 2005 conviction for murdering Robert Kissel by lacing a milkshake with sleeping pills and then clubbing him to death.

Mr Zervos began by attacking assertions that the trial judge, Mr Justice Michael Lunn, had somehow failed to instruct the jury as to the evidentiary impact of testimony given about conversations held with Robert Kissel two months before his murder. In particular, Kissel's defence team had criticised the treatment of the testimony of Frank Shea, a private detective whose firm was hired by Robert Kissel to spy on his wife.

Mr Shea had testified that Robert Kissel told him he suspected his wife was trying to poison him.

During the trial he told the court: 'Mr Kissel said when he returned from work in the evening he would find a decanter of Scotch in the living room. [He said] the Scotch didn't taste normal to him ... it made him woozy and disoriented.'

Mr Zervos said Mr Justice Lunn had instructed the jury that such comments were not evidence of the facts of the case, but evidence of Robert Kissel's state of mind at the time. '[The judge] has sandwiched this evidence between two directions [about how to treat it],' Mr Zervos said.

Although the defence had objected to the testimony being heard, Mr Zervos said the prosecution was fully entitled to use it because Kissel's defence team had taken it further - holding up Robert Kissel's failure to submit his hair or blood for drug testing - as recommended by Mr Shea - as proof that he was using cocaine.

Moreover, Mr Zervos said, the defence's complaints about that evidence could not stand when they made no complaint about the evidence of Bryna O'Shea, Kissel's best friend. She testified that she had received a call from Robert Kissel saying he thought his wife was searching the internet for ways to kill him, and asking her to look after the children should something happen.

'[The two] are basically peas in the same pod,' Mr Zervos said.

The hearing continues today.