Judge ‘troubled’ by Crown evidence against Windsor man charged with dangerous driving
Joseph Mallen, 25, is facing three charges in relation to an accident on Feb. 14, 2019 after his vehicle collided with another at the corner of George Avenue and Reginald Street.
Karen Kelly, 69, died 12 days later, in hospital, from the injuries she suffered.
Mallen is charged with dangerous driving causing death, obstruction of justice and public mischief but has maintained his innocence throughout the court process.
“I’m concerned about the potential for a wrongful conviction,” Justice Renee Pomerance told assistant Crown attorney Jonathan Lall Thursday in Superior Court.
Lall and defence lawyer John Sitter presented their closing arguments to the judge, after a trial concluded on Sept. 22.
Throughout his closing remarks, Lall was interrupted by Justice Pomerance, who repeatedly expressed concerns about reasonable doubt.
“My sense is I can’t determine who the driver was,” Justice Pomerance told Lall. “If I have a doubt, that’s all he (Mallen) need provide.”
At trial, the two passengers in Mallen’s vehicle both testified that Mallen was driving the vehicle at a high rate of speed before he failed to stop at an intersection and collided with Kelly’s sedan.
Lall referred to their testimony as “superior evidence” compared to the version of events provided by several witnesses who only say the aftermath of the crash.
Lall says the two passengers were unknown to each other before the night of the crash and as such had no reason to lie about who was driving the car.
But a defence witness, Brad Jones previously testified he heard Mallen say, “the driver ran! The driver ran!”
Mallen implicated a different person as the driver of the vehicle, saying he was in the backseat of the car that night.
That person also testified at trial, telling the court not only was he not in the vehicle, he had not seen Mallen for days before the night of the accident.
Justice Pomerance however told Lall, “I’m relying on the eyewitnesses because they cast real doubt.”
“As soon as this accident happened Mr. Mallen began this campaign of misdirection,” Lall countered.
Justice Pomerance was also critical of the Windsor Police Service for coming to a “preconceived conclusion” about the alleged driver.
Before court Thursday, Justice Pomerance said she reviewed Mallen’s video statement to police and told the court while she watched it “I could not help but think of tunnel vision.”
Windsor Police initially charged a different man in connection with the accident and Kelly’s death but those charges were withdrawn before Mallen was re-arrested and charged.
About a dozen members of Kelly’s family were in the gallery of the courtroom for the proceedings; many wearing shirts with her picture on the front.
Justice Pomerance directly asked Lall if he believed someone else was driving the vehicle that hit Kelly.
Before the crown attorney could answer a member of Kelly’s family said out loud “No!”, to which Justice Pomerance asked them to refrain from outbursts.
“I know this is difficult to hear,” she said but continued enquiring about the potential of reasonable doubt.
Defence lawyer John Sitter told the court the crown case “does not meet the criminal standard of guilt.”
He argued the court “can’t get around Brad Jones’ (testimony)” of identifying a different person exiting the car from the driver’s seat.
Sitter also argued one of Mallen’s passengers had been drinking and consuming marijuana on the night in question and texting at the time of the accident and hit her head off the dashboard upon impact.
“The weight of her evidence should be suspect,” Sitter argued.
He concluded his closing statement by saying, “there’s reasonable doubt. It would be dangerous to convict.”
Justice Pomerance will deliver her verdict to Mallen on Oct. 31 at 9 a.m. in Windsor’s Superior Court.
CTVNews.ca Top Stories
More than 115 cases of eye damage reported in Ontario after solar eclipse
More than 115 people who viewed the solar eclipse in Ontario earlier this month experienced eye damage after the event, according to eye doctors in the province.
Last letters of pioneering climber who died on Everest reveal dark side of mountaineering
George Mallory is renowned for being one of the first British mountaineers to attempt to scale the dizzying heights of Mount Everest during the 1920s. Nearly a century later, newly digitized letters shed light on Mallory’s hopes and fears about ascending Everest.
Toxic testing standoff: Family leaves house over air quality
A Sherwood Park family says their new house is uninhabitable. The McNaughton's say they were forced to leave the house after living there for only a week because contaminants inside made it difficult to breathe.
Decoy bear used to catch man who illegally killed a grizzly, B.C. conservation officers say
A man has been handed a lengthy hunting ban and fined thousands of dollars for illegally killing a grizzly bear, B.C. conservation officers say.
Sophie Gregoire Trudeau on navigating post-political life, co-parenting and freedom
Sophie Gregoire Trudeau says there is 'still so much love' between her and Prime Minister Justin Trudeau, as they navigate their post-separation relationship co-parenting their three children.
An emergency slide falls off a Delta Air Lines plane, forcing pilots to return to JFK in New York
An emergency slide fell off a Delta Air Lines jetliner shortly after takeoff Friday from New York, and pilots who felt a vibration in the plane circled back to land safely at JFK Airport.
B.C. seeks ban on public drug use, dialing back decriminalization
The B.C. NDP has asked the federal government to recriminalize public drug use, marking a major shift in the province's approach to addressing the deadly overdose crisis.
'I was scared': Ontario man's car repossessed after missing two repair loan payments
An Ontario man who took out a loan to pay for auto repairs said his car was repossessed after he missed two payments.
First court appearance for boy and girl charged in death of Halifax 16-year-old
A girl and a boy, both 14 years old, made their first appearance today in a Halifax courtroom, where they each face a second-degree murder charge in the stabbing death of a 16-year-old high school student.