The B.C. Court of Appeal has overturned Kelly Ellard's second-degree murder conviction and ordered a fourth trial for her in the death of teenager Reena Virk, who was found beaten and drowned in a Victoria waterway in 1997.
Ellard, now 25, was found guilty of second-degree murder in her first trial in March 2000, but the verdict was overturned on appeal. The second trial ended in a hung jury in July 2004. Found guilty in a third trial in April 2005, Ellard was sentenced to life in prison and was to serve seven years before seeking parole.
The Appeal Court overturned that conviction in Vancouver on Friday, saying the trial judge erred in his instructions to the jury over testimony.
However, the decision wasn't unanimous. Justice David Frankel and Justice Edward Chiasson concurred but Justice Richard Low disagreed, saying the verdict in the third trial was reasonable and that, in his view, the trial judge made no mistakes.
Ellard's lawyer, Peter Wilson, said his client is pleased with the decision and said he will now focus on securing Ellard's release from prison. Wilson had argued before the court that Ellard was a victim of hearsay testimony and innuendo in the case. She has always maintained her innocence. Wilson told reporters it was unclear whether a fourth trial will actually proceed.
"I'm not sure it's possible any longer to get any kind of coherent narrative from witnesses who are describing an event that happened 11 years ago when most of them were 13 or 14 years old and where the event produced so much media coverage and gossip that it's just not possible to sort what they actually remember from what they've read or been told," Wilson said.
Virk's slaying on Nov. 14, 1997, attracted international attention and fuelled public discussion about teen violence. She was 14 when she was swarmed and beaten under a bridge by a group of teenagers, mainly girls. Battered and bloodied, Virk managed to get up and stagger across the bridge toward a bus stop to make her way home. But two of the original attackers dragged her back, hit her again and left her in a waterway.
The Appeal Court ruling said the trial judge erred in his instructions to the jury over testimony by Marissa Bowles, who witnessed the initial swarming. Bowles testified during the third trial she saw Virk walk across a bridge, followed a short time later by Ellard and Warren Glowatski, who was convicted of second-degree murder in Virk's death.
But the Appeal Court pointed out that Bowles's testimony was inconsistent with what she said in her written statement to the police 10 days after the event, and she did not tell police that she saw Virk cross the bridge.
"I have concluded that the trial judge erred in permitting the Crown to elicit evidence of prior consistent statements and in failing to instruct the jury as to their limited use. I would, accordingly, allow the appeal and order a new trial," said Frankel, who wrote the decision on behalf of the court.'
Low, one of the three judges in the panel, dissented.
"I am not persuaded that the absence of an instruction as to the law of prior consistent statements gave rise to a risk that the jury might have used forbidden reasoning in assessing the evidence," Low wrote in his reasons of judgment.
Crown deciding whether to appeal
Crown spokesman Stan Lowe said after the ruling that they are reviewing the Appeal Court's decision.
"Over the next few weeks, we'll conduct a comprehensive review of the ruling and determine what our options are and the best course of action," Lowe said.
One option for the government would be to file an appeal with the Supreme Court of Canada.
In 1999, Glowatski was convicted of second-degree murder in Virk's death. He was sentenced to life in prison with no chance of parole for seven years. Six other young people have also been convicted of assault.
Glowatski lost his appeal in November 2001, when the B.C. Court of Appeal ruled he actively took part in Virk's killing.