Witness testimony in Windsor dangerous driving trial changes case ‘quite substantially’: Judge

The trial of a Windsor man charged with dangerous operation of a motor vehicle causing death resumed Thursday in Windsor Superior Court, with some unexpected turns.

Joseph Mallen, 25, is also accused of mischief and obstruction in the car crash that ultimately claimed the life of 69-year-old Karen Kelly.

Kelly died nearly two weeks after the Valentine’s Day, 2019 two-vehicle crash at the corner of George Avenue and Reginald Street in Windsor.

Police initially charged another man in connection to the crash but those charges were dropped. Joseph Mallen was than arrested and charged.

To this day, Mallen maintains he was not the driver of the vehicle, adamant that he was in the backseat of the car.

Justice Renee Pomerance was scheduled to hear closing arguments but a defence witness, Brad Jones, took the stand in the morning and the testimony and the aftermath of that, would take up the rest of the day.

Jones resides at a property near where the collision took place and testified that he heard the crash from inside his home.

When he went outside to see what happened shortly after 8 p.m. on Feb. 14, 2019, he saw a smoldering car with fluids leaking out from beneath.

He said the car looked like it was spinning its tires before it went dead.

Jones testified the driver-side door of the car opened, and a man exited the vehicle.

“He looked me square in the eyes,” Jones recalled, then said the man ran off.

According to Jones’ testimony, another man then got out of the passenger side of the car and was “hysterical.”

“The driver ran. The driver ran,” Jones recalled hearing from a person he identified in court as Joseph Mallen.

After Jones’ testimony, Justice Renee Pomerance expressed concern that the evidence was not fully fleshed out by assistant Crown attorney Jonathan Lall, saying the new evidence “changed the complexion of the case quite substantially.”

Lall presented some case law at the request of Justice Pomerance, seeking to re-introduce Jones as a witness for some clarity regarding whether he saw a man get out of the driver’s side of the car, or whether Jones saw him get out of the driver’s seat.

Pomerance said there was some apparent ambiguity and suggested assistant Crown attorney Lall made a deliberate decision to not further probe the witness during cross-examination. She ruled that the case law provided by Lall did not apply to this circumstance and rejected the request to hear from the witness again.

The case will now wait until Oct. 6, 2022, with closing arguments from Lall and defence attorney, John Sitter.