A woman convicted of murder in the sensational poisoning of her ex-husband lost her bid for a retrial yesterday.
In a 3-0 decision, the Ontario Court of Appeal said it found nothing unreasonable about the conviction of Cherrylle Dell for first-degree murder, nor did it accept the reliability of fresh evidence tendered by the defence.
Packed with unlikely characters and events straight out of a Hollywood script, the lurid Dell case was more of an "ifdunit" than a whodunit. The central question was whether Scott Dell had been murdered with a lethal mixture of wine and antifreeze, or whether the cancer-stricken man had killed himself.
Ms. Dell's lawyers argued strenuously that antifreeze was an entirely illogical murder weapon; that Mr. Dell would have known he was drinking an unpleasant, oily substance although mouth cancer having robbed him of his sense of taste.
They also pointed to a note Mr. Dell wrote on his last night that referred to "death -- suicide."
However, the appeal judges said that while it is plausible that Mr. Dell committed suicide, the Crown made a perfectly tenable case for Ms. Dell having killed him so she could sell the farm they owned.
"I agree that in many respects, the unusual circumstances of Scott Dell's death point to suicide rather than murder," Mr. Justice Robert Sharpe wrote on behalf of Mr. Justice James MacPherson and Madam Justice Eleanore Cronk.
"However, I disagree that suicide was the only reasonable conclusion that could be drawn from the evidence. The conclusion that the appellant murdered Scott Dell may not have been inevitable, but it certainly was not unreasonable."
They said the trial judge was justifiably influenced by evidence that Ms. Dell had shown inordinate interest in the effects of antifreeze, and that she had a desperate need for money.
The court also said that Mr. Dell's final note did not read like a suicide note, and they firmly rejected fresh evidence from a new defence witness whose lengthy record of crime and fabrication showed "a complete disregard for authority and for the legal process."
Defence counsel Philip Campbell said yesterday: "I am surprised. I had left the courtroom six weeks ago feeling that we had given the court a lot of reasons to fear Cherrylle Dell was wrongly convicted, and to conclude that the trial judgment was seriously flawed. Her legal options are now very few. But it's the kind of case where a lawyer has to keep doing whatever can be done." Added his co-counsel, Jonathan Dawe, "We will be studying the judgment carefully and considering the possibility of a further appeal to the Supreme Court of Canada."
Married in 1971, the Dells brought up three children on a farm near Killaloe, Ont. In 1992, Ms. Dell left her husband, and began making plans with her lesbian girlfriend, Nancy Fillmore, to buy a home. However, they needed the money Ms. Dell expected to get from the sale of the farm.
In late 1995, Mr. Dell died after drinking a mixture of white wine and ethylene glycol, a green-coloured antifreeze. Suicide was the presumed cause of death until 1997, when Ms. Fillmore broke up with Ms. Dell and implicated her in Mr. Dell's death.
The Crown theory was that Ms. Dell gave Mr. Dell the deadly wine concoction and then kept him on the phone for hours as he sipped it all down. Prosecutors also produced a jailhouse informant who said that Ms. Dell confessed to her.
And, in what authorities regarded as a related crime, it was also alleged that Ms. Dell subsequently persuaded a local teenager, Brent Crawford, to set Ms. Fillmore's house on fire, killing her. In 2001, Mr. Crawford was convicted of first-degree murder in the death.
Ms. Dell has also been charged with first-degree murder in Ms. Fillmore's death and, after a preliminary hearing, now awaits trial on that charge.