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
Doctors say capital gains tax changes will jeopardize their retirement. Is that true?
The Canadian Medical Association asserts the Liberals' proposed changes to capital gains taxation will put doctors' retirement savings in jeopardy, but some financial experts insist incorporated professionals are not as doomed as they say they are.
Something in the water? Canadian family latest to spot elusive 'Loch Ness Monster'
For centuries, people have wondered what, if anything, might be lurking beneath the surface of Loch Ness in Scotland. When Canadian couple Parry Malm and Shannon Wiseman visited the Scottish highlands earlier this month with their two children, they didn’t expect to become part of the mystery.
Fair in Ontario, flurries in Labrador: Weather systems make for an erratic spring
It's no secret that spring can be a tumultuous time for Canadian weather, and as an unseasonably mild El Nino winter gives way to summer, there's bound to be a few swings in temperature that seem out of the ordinary. From Ontario to the Atlantic, though, this week is about to feel a little erratic.
What do weight loss drugs mean for a diet industry built on eating less and exercising more?
Recent injected drugs like Wegovy and its predecessor, the diabetes medication Ozempic, are reshaping the health and fitness industries.
He replaced Mickey Mantle. Now baseball's oldest living major leaguer is turning 100
The oldest living former major leaguer, Art Schallock turns 100 on Thursday and is being celebrated in the Bay Area and beyond as the milestone approaches.
What a urologist wants you to know about male infertility
When opposite sex couples are trying and failing to get pregnant, the attention often focuses on the woman. That’s not always the case.
'It was instant karma': Viral video captures failed theft attempt in Nanaimo, B.C.
Mounties in Nanaimo, B.C., say two late-night revellers are lucky their allegedly drunken antics weren't reported to police after security cameras captured the men trying to steal a heavy sign from a downtown business.
Bank of Canada officials split on when to start cutting interest rates
Members of the Bank of Canada's governing council were split on how long the central bank should wait before it starts cutting interest rates when they met earlier this month.
Made-in-Newfoundland vodka claims top prize at worldwide competition
A Newfoundland-made vodka has been named one of the world’s best by judges at this year’s World Vodka Awards.