On the final day of the trial for the Bowser man accused of fatally injuring a Comox Valley cyclist and teacher, court heard there is reasonable belief that Timothy Prad thought he had hit a deer, argued defence lawyer Doug Marion in his closing arguments.
Prad, 56, pleaded not guilty to dangerous driving causing death, and failure to stop at an accident causing bodily harm in the incident in which Paul Bally was struck by a southbound vehicle on Highway 19A near Curran Road in the evening of Dec. 15, 2014.
Marion explained in front of a full courtroom in Courtenay which included both members of the Prad and Bally family sitting in the front row, that Prad’s “post-accident behaviour is consistent with innocence.”
Prad made no attempt to hide the damage to his vehicle, explained Marion, and even drove past the police and sent a text message to his friend Cindy Perry explaining he was involved in an accident and hit a deer. It is these details, he added, which are “not consistent with someone who struck a human being and left them on the side of the ditch.”
Marion spoke to his client’s credibility and that Prad had a reasonable basis to believe what he hit that evening was a deer.
“In his mind it’s the fourth deer he hit. Statistically, 75 per cent of the collisions he’s had have been deer. What Crown is suggesting is that he would have had to be a pretty cold, calculating person.”
In referencing the dangerous driving causing death charge, Marion argued his client was not intoxicated, was not speeding and the speed of the cyclist and the point of impact were not proven.
“At best, it was a momentary lack of attention on a narrow secondary highway not heavily travelled at night in the rain, and the fog lines aren’t clear in the rain … when you consider all that evidence, there is reasonable belief he hit a deer.”
Marion asked provincial court Judge Peter Doherty if he were to convict his client, to consider the lesser offence of dangerous driving causing bodily harm, and not death.
Crown attorney John Boccabella told court to consider Prad’s inconsistencies with evidence he presented both on the stand Wednesday as well as evidence presented in his police interrogation video.
Boccabella told court Prad lied about why he transferred ownership of his truck to his son, along with not telling police he had one beer about half an hour prior to the incident.
“He tells (police) it wasn’t relevant. He told them he had Folgers (coffee). He even told them it was decaf. There is a lack of credibility to not advance the case - the witness is showing clear tendencies to lie, which affects the reliability of evidence,” he said.
“Many of Mr. Prad’s flexible relationship with the truth is to tailor evidence to present himself in a positive light.”
Crown argued that Prad was subjecting himself to willful blindness - a term used in criminal law to refer to the acts of a person who intentionally fails to be informed about matters that would make the person criminally liable.
Prad’s assertion that he saw “something brown” during the moment of impact is not a credible explanation for what happened, said Boccabella.
“There is no brown in court and in the video evidence there’s no brown.”
Boccabella noted the reason Prad didn’t see a “very visible yellow coat up the hood with feet where the driver is sitting get displaced over the side” was due to the fact he was distracted, yet asked to describe the distraction was impossible for the accused.
“There’s no reliable evidence of what that was … Prad has gross inconsistencies on certain points.”
Doherty told court the ruling for the case is set for Feb. 3, 2017.
Outside the courthouse, Paul’s wife Evelyn spoke to media and said the past two weeks have been very long for her family.
“I felt that Boccabella put together the facts and that he has a very good case. I think the judge has a hard decision to make because you have to prove beyond reasonable doubt and it’s (Prad’s) word against Paul’s.
“It was almost two years ago that my life came to a screeching halt and now it’s happening again … to wait until February it’s hard but I understand that the judge wants to make the best decision and it’s important and if he needs that time; that’s what has to be done and he has a hard decision to make.”