Prosecution 'wrongly used bail documents at Kissel's trial'

The prosecution in Nancy Kissel's murder trial had wrongly used documents from her bail hearing to try to show her own counsel had decided she was not suffering any mental disturbance, the Court of Appeal heard yesterday.

Gerard McCoy SC, for Kissel, told the court the documents had no place in a criminal trial and his client should never have been subjected to cross-examination on their contents.

He was responding to argument from acting deputy director of public prosecutions Kevin Zervos SC that the examination was warranted because Kissel's legal team had presented the documents to the November 2004 bail hearing in an effort to show she was fit for release.

It was Mr Zervos' case that the mental breakdown and memory loss she claimed to be suffering during her trial for the November 2, 2003, murder of her senior banker husband Robert was a fabrication aimed at staving off awkward questions.

During the bail hearing her counsel at the time had told the court her mental condition was 'absolutely normal', a conclusion he had reached after examining several documents from Siu Lam Psychiatric Facility and letters of support from three of her friends.

It was the use of that assertion, based purely on the opinion of a barrister, and the documents underlying it at the trial that Mr McCoy took exception to. 'What is the opinion of counsel worth? Nothing. He is not under oath, he is not a witness,' Mr McCoy said. The comment could not be considered evidence for a criminal trial as the standards applied at a bail hearing were far lower.