Merril Lynch banker Robert Kissel's suspicion about his wife's intent to kill him months before his death in 2003 should not have been admitted as evidence in Nancy Kissel's murder trial, a court was told yesterday. Robert's suspicion was 'dangerously prejudicial', Nancy Kissel's barrister Gerard McCoy SC argued on the third day of her appeal in the Court of Final Appeal. McCoy attacked the admissibility of the evidence from the banker's confidante Bryna O'Shea, who told the murder trial in 2005 what Robert had said to her before he was killed in the family's flat in Parkview, Tai Tam, on November 2, 2003. He criticised Robert's beliefs about the couple's relationship and that they were 'irrelevant and unsustainable' to prove that his wife murdered him. Kissel was convicted for bludgeoning Robert to death after he had a strawberry milkshake that she had laced with drugs. At the 2005 trial, O'Shea told the court that she began daily correspondence with the banker in April 2003 and learned of the couple's marital problems. O'Shea said he felt that his wife was 'constantly lying to him'. O'Shea also testified about an e-mail from the banker asking, 'Do you think she's trying to kill me?' Believing it was a joke, O'Shea said, 'If she's trying to kill you, put me in your will. He laughed and said: 'If anything happens to me, make sure my children are taken care of'.' She said Robert said Kissel looked at a website 'about drugs, or death, or something dark'. Yesterday, McCoy said the trial judge made a mistake allowing evidence from O'Shea to be admitted for relevance to Robert's state of mind. McCoy argued his state of mind was not relevant as it did not tend to prove whether she had lawfully or unlawfully killed him. 'This is a danger which requires a lot of warning,' the barrister said, '[the evidence] distracts the jury from the proper and real issue of the trial.' He said this evidence only allowed a prejudicial inference to be drawn against Kissel. 'It has no probative value. It doesn't go to the issue. It was just dangerously prejudicial,' McCoy said. The appeal hearing is Kissel's final chance to overturn her conviction in 2005 when a jury found her guilty of murdering her high-flying husband after a sensational three-month trial in the Court of First Instance. Mr Justice Michael Lunn sentenced her to life. On the second day of her appeal Chief Justice Andrew Li Kwok-nang indicated he would like to hear submissions regarding the option of a retrial. Kissel, the American mother of three, had argued she killed in self-defence. She said there had been a confrontation with her husband about divorce and custody of their children on the night of November 2, 2003. Her husband had assaulted her with a baseball bat while she carried a metal ornament, Kissel said. Yet, she claimed a loss of memory as to how the killing exactly took place and the last thing she remembered was her husband coming at her with the baseball bat screaming, 'I'm going to kill you, you f****ng b***h.' Kissel's appeal before, the chief justice, Mr Justice Syed Kemal Bokhary, Mr Justice Patrick Chan Siu-oi, Mr Justice Roberto Riberio, and Sir Anthony Mason continues on Monday and Wednesday.
