Mike on Crime

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 continues after a B.C. Appeal Court overturned her conviction Friday and ordered a fourth trial.
Kelly 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, may face yet another trial after the judge at her third trial erred.
But Ellard’s lawyer, Peter Wilson, said he has concerns about a fourth trial in the case.
“I have serious concerns about whether any coherent narrative can be obtained any longer from witnesses who, for the most part, were 13 and 14 years old and who witnessed these events 11 years ago and have been talking about it since,” Wilson told The Canadian Press.
“After a while it’s difficult for any of us to sort out what we truly remember from what we’ve heard and from what we’ve seen.”
The Crown must decide whether to appeal the ruling to the Supreme Court of Canada, to proceed with yet another trial or to abandon the prosecution altogether.
Stan Lowe, spokesman for the provincial Crown prosecutor’s office, said officials are reviewing the judgment.
“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,” he said.
Wilson said his client will remain behind bars for the time being, until the Crown makes a decision. The Crown has 30 days to file an appeal.
“I need to figure out where this is going,” Wilson said.
The appeal hinged on the evidence of a witness at the 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. The witness was convicted in taking part in the earlier beating and cannot be named.
In the 60-page ruling, two of three judges supported the appeal, saying the trial judge erred in permitting the Crown to elicit further evidence from the witness and failed to properly instruct the jury about it.
“In addition, the history of this case suggests in light of the error, the verdict cannot stand safely,” wrote Justice Edward Chiasson.
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.
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 among the high school crowd for more than a week, Virk’s body wasn’t found by police until Nov. 22, 1997, floating in the Gorge waterway.
Glowatski, who was also a teenager at the time of the killing, was convicted as an adult of second-degree murder. He served most of his sentence and was granted day parole last year.
Wilson 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 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.
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.
Wilson said he spoke to Ellard on the phone Friday.
“She’s pleased. Obviously, she’s wondering what the next step is and I have to sort that out now,” he said.