Kissel's mental state questioned

PUBLISHED : Saturday, 19 April, 2008, 12:00am
UPDATED : Saturday, 19 April, 2008, 12:00am

The jury at Nancy Kissel's murder trial should have been instructed to consider the defence of diminished responsibility even though she had instructed her legal team that she did not want to use it, the Court of Appeal heard yesterday.

Gerard McCoy SC, for Kissel, said trial judge Mr Justice Michael Lunn should have introduced the defence after it became apparent there was evidence from both sides that his client's mental state was such that she might not have been responsible for her actions.

Kissel was jailed for life in September 2005 after being found guilty of bludgeoning her husband, Robert Kissel, to death at their luxury apartment on November 2, 2003.

Mr McCoy yesterday introduced a motion to adduce additional evidence in relation to the potential defence.

Even though Kissel had explicitly directed her legal team not to run the defence, Mr McCoy said that once the judge became aware that it might be plausible, he was then obligated to instruct the jury to consider it.

He pointed to psychiatric reports produced for both sides and to statements by people who knew her that suggested she was not acting normally in the lead-up to the murder, or in the period immediately after it.

'Where [such] reports are unanimous, the judge should exercise his discretion to adduce that evidence,' Mr McCoy said.

He said that excellent evidence of her mental state had already been introduced, albeit inadvertently, by the prosecution when it cross-examined her regarding statements made about it during her bail hearing in November 2004.

'The moment there is a hint of a defence, the judge has a duty to leave it [to the jury],' Mr McCoy said.

On another front, he also sought to point out omissions made by Mr Justice Lunn during his summing up for the jury that may have prejudiced its deliberations.

In particular, he suggested the judge had left out crucial evidence from a blood spatter expert who suggested that rather than her clubbing her husband after he had succumbed to a drug-laced milkshake, there had been a roaming battle - an 'ambulatory exchange', as he termed it - through the couple's bedroom.

He said there were other minor omissions, the totality of which, when viewed with all the other grounds of appeal, would convince the court to allow the appeal, which continues on Monday.