HONG KONG: Lawyers for Nancy Kissel, the city's only Western women serving a life sentence for murder, began their appeal yesterday, arguing that evidence at her trial was wrongly used, thus denying Kissel the possibility of a fair trial.

Appearing at the Court of Final Appeal, 45-year-old Kissel appeared for the first day of her three-day final appeal. She came to court in a wheelchair as a result of a knee injury suffered earlier.

With a dozen family members and friends in the public gallery, her barrister Gerard McCoy argued Kissel's sound mental state at the time of her application for bail was improperly used as a foundation for describing Kissel's mental state prior to the homicide. Counsel also argued that the information was used against Kissel in way that appeared self-incriminating. McCoy, arguing before Chief Justice Andrew Li, Justice Kemal Bokhary, Justice Patrick Chan Siu-oi, Justice Robert Ribeiro and Justice Sir Anthony Mason, contended statements taken from Kissel at a November 1, 2004 bail hearing prejudiced Kissel's case when she took the stand. Defense counsel also argued that the materials produced at the bail application should not have been used for trial purposes citing the Criminal Procedures Ordinance.

Because bail hearings involve factors that attest to whether a defendant poses a flight risk, a risk to themselves or others or that their being at liberty could lead to an obstruction of justice, McCoy argued it was not the same as trial evidence.

He said the prosecution had warped statements of Kissel's mental state to discredit her primary defense of provocation, self-defense and diminished responsibility.

"(Kissel) was wrongly accused at trial and wholly and wrongly condemned by the prosecution's submission that she was perfectly normal," he said, calling the tactic the "clearest, most prejudiced breach" of criminal procedure.

Kissel's lawyers maintain she committed the homicide in self-defense after being left in a state of diminished responsibility due to years of physical and psychological abuse at the hands of her husband.

McCoy also suggested the prosecution, not able to find a sympathetic psychologist to confirm Kissel's sound mental heath during the trial, had unfairly put the onus on her to explain in front of a jury why she did not want her attending psychiatrist to waive conflict of interest and testify.

"When you have the choice to waive someone's interest, it is not cross-examinable. You do not need to justify your rights," he said.

McCoy also said she was unfairly made to account for inconsistencies and omissions made by guarantors as to her mental state in their statements of support for her bail application.

Flying into the city Sunday to attend her daughter's hearing, Kissel's mother, Jean McGlothlin, told reporters, "(Nancy) is weak. She can't walk very well. She needs a good medical work-up but she's got great spirits."

The trial continues today with the defense expected to put forth arguments regarding inadmissible hearsay and misdirection to the jury by the judge, on matters of self-defense.

Kissel was convicted for murdering her husband in 2003 by lacing a strawberry milkshake with a cocktail of sedatives and bludgeoning him to death with a lead ornament. She was sentenced to life in prison in 2005 after a three-month trial which unveiled a heady mix of adultery, violence, spying, greed and enormous wealth, gripping the city and inspiring a book and a TV movie.

US citizen Nancy Kissel, dubbed the "milkshake murderer", is wheeled out of Hong Kong's highest court yesterday after appearing for her last chance to appeal in one of the city's most sensational crime cases. AFP

(HK Edition 01/13/2010 page1)