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Fourth trial for accused murderer of Virk
The 2008 book by Reena Virk's father was published coincidentally with the announcement of a record fourth trial in B.C. for one of her alleged murderers, Kelly Ellard, as reported by Canadian Press in early September of 2008:
VANCOUVER - More than a decade after the beating death of 14-year-old Reena Virk in suburban Victoria shocked the nation, the legal odyssey of one of her accused killers drags on.
On Friday, the B.C. Appeal Court overturned the conviction of Kelly Ellard and ordered a fourth murder trial.
Ellard has been convicted twice and sentenced to life in prison for taking part in killing Virk in November 1997; another trial ended in a hung jury.
Now the appeal court says Ellard, who was 15 at the time of the murder and is now at least 25, will face yet another trial after the judge at her third trial made mistakes.
The appeal hinged on evidence of a witness at her third trial in 2005 who told the jury she watched Ellard follow Virk after she fled an earlier beating and walked over the Craigflower bridge that night near Victoria.
"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," wrote Justice S. David Frankel in the 60-page ruling.
The witness, who was convicted in taking part in the beating and can't be named, was re-examined by the Crown at the last trial after defence lawyers attacked her testimony as "recent fabrication."
Justice Edward Chiasson concurred with the decision to allow the appeal, saying that instructions to the jury over one witness's testimony were in error.
"In addition, the history of this case suggests in light of the error, the verdict cannot stand safely," Chiasson wrote.
One of the three judges on the panel dissented.
Virk was swarmed on Nov. 14, 1997 and beaten by eight teenagers between the ages of 13 and 15 - most of them girls.
A fight started when one of the teens, who can't be named, stubbed out a lit cigarette on Virk's forehead. Virk was then swarmed and repeatedly punched and kicked by the group.
The Crown alleges Ellard and her co-accused, Warren Glowatski, followed the teen after she staggered away, bloodied and alone.
Virk was last seen alive walking over the bridge. Despite rumours circulating throughout the high school crowd, Virk's body wasn't found by police until Nov. 22, 1997, floating in the Gorge waterway.
Warren Glowatski, who was also a teenager at the time of the killing, was convicted as an adult of second-degree murder. Glowatski served most of his sentence and was granted day parole last year.
Stan Lowe, spokesman for the provincial Crown prosecutor's office, said the Crown had only received the judgement on Friday.
"Over the next few weeks we will conduct a comprehensive assessment of the decision and determine what the most appropriate course of action will be."
Lowe said he couldn't recall any other case in B.C. that had gone through four trials, and he wouldn't speculate on whether the Crown would appeal the ruling to the Supreme Court of Canada.
Ellard's lawyer, Peter Wilson, declined comment.
He argued at the Appeal Court hearing in May that the jury based its second-degree murder conviction on lies, rumours and inconsistent evidence.
But Crown lawyer John Gordon told the court the jury was aware of the poor credibility of witnesses, rampant teenage gossip and rumours - and convicted anyway.
Gordon conceded in appeal that the re-examination of the witness was "poorly done," but that in had no effect on the trial because the witnesses evidence wasn't centre to the Crown's case.
But the appeal court disagreed with the Crown about the importance of the evidence.
"At the trial there was no issue that Ms. Virk, followed by Mr. Glowatski, crossed over the north end of the bridge," Frankel wrote in the decision. "However, what was very much in issue was whether Ms. Ellard accompanied Mr. Glowatski."
The jury asked to hear the witness's testimony again as they deliberated at the third trial, and Frankel noted that is a clear indication the jury viewed the evidence as significant.
"The jury should have been told specifically that (the witnesses) prior consistent statements did not enhance the reliability of her testimony," Frankel wrote.
In his dissenting reasons, Justice Richard Low said it was "inconceivable" that jurors didn't fully understand that their job was to assess the reliability of the witness and her evidence that she saw Ellard crossing the bridge after Virk.
He also questioned why Ellard's experienced defence counsel didn't object at trial to the judge's failure to instruction the jury on that witness's testimony.
By Terri Theodore, The Canadian Press
VANCOUVER - More than a decade after the beating death of 14-year-old Reena Virk in suburban Victoria shocked the nation, the legal odyssey of one of her accused killers drags on.
On Friday, the B.C. Appeal Court overturned the conviction of Kelly Ellard and ordered a fourth murder trial.
Ellard has been convicted twice and sentenced to life in prison for taking part in killing Virk in November 1997; another trial ended in a hung jury.
Now the appeal court says Ellard, who was 15 at the time of the murder and is now at least 25, will face yet another trial after the judge at her third trial made mistakes.
The appeal hinged on evidence of a witness at her third trial in 2005 who told the jury she watched Ellard follow Virk after she fled an earlier beating and walked over the Craigflower bridge that night near Victoria.
"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," wrote Justice S. David Frankel in the 60-page ruling.
The witness, who was convicted in taking part in the beating and can't be named, was re-examined by the Crown at the last trial after defence lawyers attacked her testimony as "recent fabrication."
Justice Edward Chiasson concurred with the decision to allow the appeal, saying that instructions to the jury over one witness's testimony were in error.
"In addition, the history of this case suggests in light of the error, the verdict cannot stand safely," Chiasson wrote.
One of the three judges on the panel dissented.
Virk was swarmed on Nov. 14, 1997 and beaten by eight teenagers between the ages of 13 and 15 - most of them girls.
A fight started when one of the teens, who can't be named, stubbed out a lit cigarette on Virk's forehead. Virk was then swarmed and repeatedly punched and kicked by the group.
The Crown alleges Ellard and her co-accused, Warren Glowatski, followed the teen after she staggered away, bloodied and alone.
Virk was last seen alive walking over the bridge. Despite rumours circulating throughout the high school crowd, Virk's body wasn't found by police until Nov. 22, 1997, floating in the Gorge waterway.
Warren Glowatski, who was also a teenager at the time of the killing, was convicted as an adult of second-degree murder. Glowatski served most of his sentence and was granted day parole last year.
Stan Lowe, spokesman for the provincial Crown prosecutor's office, said the Crown had only received the judgement on Friday.
"Over the next few weeks we will conduct a comprehensive assessment of the decision and determine what the most appropriate course of action will be."
Lowe said he couldn't recall any other case in B.C. that had gone through four trials, and he wouldn't speculate on whether the Crown would appeal the ruling to the Supreme Court of Canada.
Ellard's lawyer, Peter Wilson, declined comment.
He argued at the Appeal Court hearing in May that the jury based its second-degree murder conviction on lies, rumours and inconsistent evidence.
But Crown lawyer John Gordon told the court the jury was aware of the poor credibility of witnesses, rampant teenage gossip and rumours - and convicted anyway.
Gordon conceded in appeal that the re-examination of the witness was "poorly done," but that in had no effect on the trial because the witnesses evidence wasn't centre to the Crown's case.
But the appeal court disagreed with the Crown about the importance of the evidence.
"At the trial there was no issue that Ms. Virk, followed by Mr. Glowatski, crossed over the north end of the bridge," Frankel wrote in the decision. "However, what was very much in issue was whether Ms. Ellard accompanied Mr. Glowatski."
The jury asked to hear the witness's testimony again as they deliberated at the third trial, and Frankel noted that is a clear indication the jury viewed the evidence as significant.
"The jury should have been told specifically that (the witnesses) prior consistent statements did not enhance the reliability of her testimony," Frankel wrote.
In his dissenting reasons, Justice Richard Low said it was "inconceivable" that jurors didn't fully understand that their job was to assess the reliability of the witness and her evidence that she saw Ellard crossing the bridge after Virk.
He also questioned why Ellard's experienced defence counsel didn't object at trial to the judge's failure to instruction the jury on that witness's testimony.
By Terri Theodore, The Canadian Press
Submitted on September 5, 2008 in By David.
