Says RNC’s handling of evidence in child luring case affects ability to make full defence
Kevin Kelly is shown in court in St. John’s in this file photo. Kelly’s lawyer says the fact that a replica hard drive being used as evidence was destroyed means the defence can’t get an independent analysis. — Telegram file photo
The lawyer representing a well-know local journalist in a child-luring case says he plans to file a charter application claiming the destruction of evidence by investigators prevents him from presenting a full defence.
Kevin Kelly, 41, was charged late last year with unlawfully luring a child younger than 16 by means of a computer.
Kelly did not appear in St. John’s Provincial Court on Wednesday, but his lawyer Mike King told Judge Lois Skanes that he cannot independently assess the investigator’s report on the contents of computer’s hard drive because the replica hard drive used to prepare it has been destroyed.
King said in cases like this, police typically confiscate a computer and make a replica of the hard drive, after which the computer is returned to the accused. In this case, he said that did happen.
However, King noted that investigators usually offer the replica hard drive to the defence after it completes its analysis so the defence can get an independent analysis of the hard drive’s contents completed. This did not happen in the case of Kelly, according to King.
“This prevents full and certain defence,” said Kelly’s lawyer, who added he could not know, for example, whether the replica hard drive was properly made.
Skanes asked King whether the defence could use the original computer’s hard drive for the independent analysis to then compare with the replica hard drive analysis prepared by investigators.
King said it is doubtful that the original hard drive is in the same state as it was when police confiscated the computer of the accused.
Crown lawyer Shawn Patten told Skanes that the Crown expects it can obtain a conviction in the case.
Kelly was charged for reportedly sending a teenage girl inappropriate messages over a five-week period. Kelly is a former senior editor with the Newfoundland Herald who often wrote about the province’s arts and entertainment scene.
The case is set to return to provincial court on Aug. 15.