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Top British QCs to face off in Kissel retrial

Joyce Man

Alleged 'milkshake murderer' Nancy Kissel and prosecutors have both looked outside Hong Kong's legal talent pool to fight the retrial of what they say is an unusually complicated and difficult murder case.

Prosecution and defence were granted permission yesterday to hire British Queen's Counsel to spearhead their cases. They argued that this was necessary because of the complexity of issues including Kissel's 'battered woman' defence and the question of diminished responsibility.

But the Bar Association said the case was no more complicated than it was first time.

Acting Chief Judge of the Court of First Instance Robert Tang Ching granted both applications. Kissel (pictured) will be defended by Edward Fitzgerald QC, while David Perry QC will represent the prosecution.

Kissel, a 46-year-old mother of three, is accused of murdering her husband Robert, an investment banker at Merril Lynch, in November 2003 by battering him to death after serving him a drugged milkshake.

She was convicted by a jury five years ago and jailed for life.

But in February, the Court of Final Appeal cleared her of the charge on technical grounds and ordered a retrial.

The retrial, expected to last 50 days, is due to start on January 10. But before that, Kissel will apply for a stay of proceedings on the grounds that she cannot get a fair trial because of previous adverse publicity. This hearing is expected to run from November 1 to 4.

'There will be a number of issues, including the admissibility of evidence, hearsay, diminished responsibility, provocation,' deputy director of public prosecutions Kevin Zervos SC said, making the application to hire an overseas lawyer. 'These are very complicated and tricky issues.'

Zervos said some senior counsel experienced with similar cases had previously been instructed by Kissel, narrowing the pool of those who could potentially represent the prosecution. He also noted that the case, no matter the outcome, was likely to run into appeals, and that many issues would be raised during both the trial and the appeals.

Defence barrister Derek Chan, making his application, said that Hong Kong had few murder cases involving the issues of provocation, self defence and diminished responsibility in the context of the 'battered woman' defence and therefore they needed to draw on the experience of an overseas Queen's Counsel.

Barrister Nicholas Cooney SC, for the Bar Association, said there was no difference in the complexity of Kissel's case now and before.

Fitzgerald specialises in criminal law, public law and international human rights. Among his former clients is Muslim cleric Abu Hamza al-Masri, jailed for inciting racial hatred.

Perry has prosecuted cases involving crime, fraud and extradition, including that of Hamza, as well as defending in cases including that of Barlow Clowes, involving investment fraud in the 1980s.

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