ST. JOHN'S, N.L. — The province's Court of Appeal has upheld the conviction and jail sentence of a police officer who made obscene phone calls to a woman and then attempted to blame someone else.
Sean Kelly was originally convicted in provincial court in Corner Brook in April 2015, and was sentenced to 10 months in jail for making the calls about 2 1/2 years earlier.
He appealed, and Justice David Hurley ruled that while the trial judge had made some errors, Kelly's conviction and sentence would stand.
Hurley determined some of the evidence presented during trial - including oral and written statements from Kelly and similar-fact evidence from two witnesses - should not have been admitted, but the remaining evidence was enough to warrant a conviction.
Kelly then filed an appeal alleging Hurley had erred in his findings, while the Crown filed an appeal of its own. It alleged Hurley had been mistaken about the admission of evidence at trial.
In a decision released Monday morning, Justice Lois Hoegg and two concurring judges dismissed Kelly's appeal, but allowed the appeal of the Crown, saying the evidence was indeed admissible.
A woman received an obscene phone call while at work one morning in October 2012 from a male caller whom she said she couldn't identify, then received a second call a few hours later. After she filed a complaint with the RNC, the calls were traced to Kelly's police-issued phone. Kelly denied involvement in the calls to the investigating officers, and provided verbal and written statements to that effect. He said he had lent his phone to another man on the date the woman had received the calls.
The investigator interviewed the man named by Kelly, who denied ever using Kelly's phone and provided an alibi for the date and times of the calls.
Kelly was later charged with making an indecent phone call and mischief for making a false statement to police.
The similar-fact evidence presented at trial related to obscene phone calls made to other women on other dates from the same phone number.
At trial, Kelly had argued that his statements had not been made voluntarily, but he had been compelled to make them because the investigator was his superior and police policy required it.
In his appeal, Kelly argued that his 10-month jail sentence overemphasized the sentencing objectives of denunciation and deterrence, saying he did not abuse his position of trust as a police officer in committing the offences.
"Mr. Kelly's conduct, by any measure, did involve abuse of his position of a police officer and his breach of the public trust placed in him," Hoegg wrote, noting both the woman and the man Kelly had said had borrowed his phone had been harmed by his actions. "The actions underlying his mischief conviction are reprehensible in and of themselves as well as antithetical to his duties and responsibilities to society as a police officer."
Calling the circumstances of Kelly's offences "egregious," Hoegg said jail time was warranted to promote Kelly to take responsibility for his actions and acknowledge the harm done to the woman and the man involved.
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