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Mistrial called in Virk murder case Add to ...

A third trial for accused killer Kelly Ellard loomed after the judge in her second one declared a mistrial Sunday when the jury informed him it was hopelessly deadlocked.

"We have exhausted all avenues of deliberation," the jury wrote in its note. "We have reached an impasse that cannot result in a unanimous decision in spite of any further discussion."

Justice Selwyn Romilly said the jury had written the word 'any' in capital letters.

In response, the judge declared: "I have no alternative but to declare a mistrial in this case."

Ms. Ellard, who showed no reaction to the verdict, is charged with second-degree murder in the notorious beating and drowning death of Reena Virk in 1997.

After the verdict, Ms. Ellard's mother Susan and stepfather George Pakos declined to comment.

"I'm exhausted," he said. "Just exhausted."

The accused's parents and Reena Virk's grandmother met in a touching scene, exchanging warm hugs as everyone left the courtroom.

Downstairs, the two defence lawyers and two Crown prosecutors also hugged before talking to reporters.

The next step for Ms. Ellard rests with the Crown, which must decide whether to seek a third trial.

"I'm just numb from what just happened," Crown prosecutor Catherine Murray said outside. "This is her second trial and I'd be surprised if we didn't go ahead again."

Ms. Ellard will return to court Wednesday to fix a new trial date, she said.

Ms. Murray said one juror "was thinking with their emotions rather than their head" and that she could see no reason why a third trial would not be held.

"This was one juror. One juror."

Outside court, Ms. Ellard's defence lawyer Robert Claus said his client was relieved and that he hoped the Crown would not seek to try her again.

"I would hope not. It's been as good a case as they could put together. I don't think it gets any better for them than was this."

He said a mistrial effectively means the second trial never happened and that Ms. Ellard's custody status remains the same.

She will remain in custody unless granted bail pending a new trial decision.

If a decision is made to not have a third trial and she is freed, she still faces a charge of assault and breach of probation stemming from an incident earlier this year when she was living at a halfway house.

Reena Virk's mother Suman and her grandfather Mukand Pallan also talked to reporters afterwards.

"It's very disappointing and crushing," she said.

"After having sat in court for the past seven weeks it was abundantly clear to me that the Crown did a wonderful job of presenting the case."

She said she does not want a third trial for Ms. Ellard but would sit through another if necessary.

Ms. Ellard, now 21, had testified in her own defence and in a fit of anger and frustration with her cross-examination predicted she would be found guilty.

The jury of six men and six women began their deliberations Wednesday. Late Saturday, they announced they were deadlocked 11-1 - with one holdout for a not-guilty verdict - but the judge exhorted the panel to sleep on it and keep trying.

Earlier Sunday, the judge denied a defence motion to declare a mistrial.

The second trial came because the B.C. Court of Appeal last year overturned a guilty verdict in the first trial in 2000 and ordered a new hearing.

The Appeal Court judges said Crown counsel in the first trial had engaged in improper cross-examination of Ms. Ellard and she therefore did not get a fair trial.

The case is one of the most notorious and closely followed in Canadian legal annals because it focused attention on the savagery of some teen violence.

What startled many when the beating and drowning of Ms. Virk first came to light was that all of the people involved were female teenagers, except for Warren Glowatski.

He was convicted in 1999 of second-degree murder in the death and sentenced to life imprisonment with no parole consideration for seven years.

Six girls were convicted in 1998 of the assault of Ms. Virk and cannot be named due to provisions of young offenders legislation.

The case began on a chilly night with a full moon and a clear sky on Nov. 14, 1997, in Greater Victoria.

More than two dozens teens gathered on that Friday night outside Shoreline Community School in Greater Victoria, where many of them including Ms. Ellard and Mr. Glowatski were students.

The teens gathered there often to party, drink and smoke pot.

An unsuspecting Ms. Virk, who was also a troubled 14-year-old living in a foster home at the time, was invited by some of the girls who had a grudge against her to join them that night.

Evidence at the trial indicated that Ms. Virk had been suspected by some of sleeping with one girl's boyfriend and had also been phoning people listed in another girl's address book.

The large group of teens later congregated beneath the south end of the Craigflower Bridge that spans a tidal inlet known as the Gorge waterway.

Some girls confronted Ms. Virk, including Ms. Ellard, although Ms. Ellard downplayed her role in her own testimony.

One girl stubbed a lit cigarette out on Ms. Virk's forehead, which prompted her to get up and try to leave.

She was surrounded and pummelled by a swarm of girls, including Ms. Ellard. Mr. Glowatski testified that he kicked Ms. Virk in the head "extremely hard" at least three times.

The group then moved to the top of the stairs, leaving Ms. Virk sitting alone in the mud in a bloodied heap.

Several witnesses, including Mr. Glowatski, said Ms. Ellard and he waited until Ms. Virk got up and walked across the bridge before they followed her.

On the other side, Mr. Glowatski said they confronted Ms. Virk again.

He said Ms. Ellard began punching the victim again and Mr. Glowatski said he "jumped in."

They punched, kicked and stomped on her, he told the court, until she appeared unconscious.

He said they dragged Ms. Virk by the legs down a bank to the shore where he said he stopped.

But Ms. Ellard dragged Ms. Virk into the water and drowned her, said Mr. Glowatski.

Several witnesses said Ms. Ellard bragged about it at school in the ensuing days.

In her testimony, Ms. Ellard denied going across the bridge with Mr. Glowatski, saying he and two other girls crossed the bridge and killed Ms. Virk.

Her testimony over parts of three days filled the courtroom.

She sobbed in the witness box as the Crown's questions grew tougher.

She was feisty and showed flashes of frustration, telling the Crown to stop asking the same questions and to "move on."

Ms. Ellard seemed to become so frustrated and angry at the Crown's persistence that she speculated on her fate.

"I'm obviously going to be convicted," she said after Ms. Murray showed her a saltwater-stained jacket the Crown said she wore the night that Ms. Virk was beaten and drowned in the ocean inlet, asking her to explain.

"My life is over," she said sobbing. "You got what you wanted. I'm going to be convicted."

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