Virk Murder -- New Trial for Ellard

This has been a bad day for trial verdicts in homicide cases.

As can be seen below the British Columbia Court of Appeal has overturned, again, Kelly Ellard's conviction for murdering Reena Virk. I append a link to the CTV story and details from the B.C. Court's actual decision.

B.C. appeal court overturns Kelly Ellard's conviction

A B.C. woman will face a fourth trial in the murder of a Victoria teenager after the B.C. Court of Appeal overturned her conviction.

At her third trial in 2005, a jury convicted Kelly Ellard of second-degree murder in the 1997 death of Reena Virk.

The case grabbed national headlines because a swarm of teenaged girls had set upon Virk, a troubled and unpopular teen, beating her up and leaving her under a bridge in a Victoria suburb.
In its 60-page decision released Friday, the court said inconsistent testimony and the trial judge's charge to the jury on how one witness's testimony should be handled were the main reasons.

"The history of this case suggests in light of the error, the verdict cannot stand safely," Justice Edward Chiasson wrote in concurrence with Justice David Frankel, who wrote on behalf of the court.

Story here:

http://news.sympatico.msn.ctv.ca/abc/home/contentposting.aspx?isfa=1&feedname=CTV-TOPSTORIES_V3&showbyline=True&newsitemid=CTVNews%2f20080905%2fellard_court_080905

The case summary and most relevant passage of the decision follow:

The appellant appealed her conviction on a charge of second degree murder. She sought an acquittal on the basis that the verdict is unreasonable, or cannot be supported by the evidence. In the alternative, she sought a new trial on the basis that the trial judge erred in: (a) failing to give the jury a special caution with respect to the possibility of collusion between various Crown witnesses, and (b) permitting the Crown to re-examine a particular witness to show that she had made prior statements under oath consistent with her evidence at trial. Held: appeal allowed, and a new trial ordered. There was a body of evidence which, if accepted by the jury, supported its finding that the appellant had participated in killing the victim. In light of the manner in which the trial had been conducted there was no need for a special caution, as the jurors would have been well aware of the need to consider the potential for collusion between witnesses. However, the trial judge erred by failing to give the jury a limiting instruction with respect to the use that can properly be made of prior consistent statements. Low J.A. dissented on the basis that there was no need for such a limiting instruction.

For the decision of the Court:

[85] The most recent summary of the law regarding the inadmissibility of prior consistent statements, the exception when an allegation of recent fabrication is made, and the use to be made of such statements if they are admitted, is found in the judgment of Mr. Justice Bastarache in R. v. Stirling, 2008 SCC 10, 229 C.C.C. (3d) 257:

[5] It is well established that prior consistent statements are generally inadmissible (R. v. Evans, [1993] 2 S.C.R. 629; R. v. Simpson, [1988] 1 S.C.R. 3; R. v. Béland, [1987] 2 S.C.R. 398). This is because such statements are usually viewed as lacking probative value and being self-serving (Evans, at p. 643). There are, however, several exceptions to this general exclusionary rule, and one of these exceptions is that prior consistent statements can be admitted where it has been suggested that a witness has recently fabricated portions of his or her evidence (Evans, at p. 643; Simpson, at pp. 22-23). Admission on the basis of this exception does not require that an allegation of recent fabrication be expressly made — it is sufficient that the circumstances of the case reveal that the “apparent position of the opposing party is that there has been a prior contrivance” (Evans, at p. 643). It is also not necessary that a fabrication be particularly “recent”, as the issue is not the recency of the fabrication but rather whether the witness made up a false story at some point after the event that is the subject of his or her testimony actually occurred (R. v. O’Connor (1995), 100 C.C.C. (3d) 285 (Ont. C.A.), at pp. 294-95). Prior consistent statements have probative value in this context where they can illustrate that the witness’s story was the same even before a motivation to fabricate arose.
. . .
[7] However, a prior consistent statement that is admitted to rebut the suggestion of recent fabrication continues to lack any probative value beyond showing that the witness’s story did not change as a result of a new motive to fabricate. Importantly, it is impermissible to assume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth, and any admitted prior consistent statements should not be assessed for the truth of their contents. As was noted in R. v. Divitaris (2004), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28, “a concocted statement, repeated on more than one occasion, remains concocted”; see also J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 313). …