Defence counsel Robby Ash has filed an appeal of the decision and Crown attorney Vikas Khaladkar has filed a cross appeal of Hurley’s ruling.
In a decision released earlier this month, Hurley ruled the provincial court judge who heard Kelly’s trial on charges of making indecent phone calls and making false statements to police investigating him had made errors, but that Kelly’s conviction and 10-month sentence should be upheld.
Hurley also ruled no new trial was warranted.
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Supreme Court rejects Sean Kelly's appeal of conviction for making indecent phone calls
The Royal Newfoundland Constabulary officer was found guilty by Judge Wayne Gorman and was sentenced in April 2015 for making calls to a Corner Brook woman in October 2012. After making the sexually explicit calls, ruled Gorman, Kelly gave statements to fellow officers investigating the complaint against him, which diverted suspicion away from him and directed blame towards an innocent man whose identity is protected by a court-ordered publication ban.
Kelly’s defence lawyer Robby Ash filed an appeal of Gorman’s decision, which was heard by Hurley in the Supreme Court of Newfoundland and Labrador’s trial division in Corner Brook in September 2016. Hurley agreed with the defence’s appeal that some similar-fact evidence heard during the trial, along with oral and written statements from Kelly, should not have been admitted at trial.
Yet, ruled Hurley, the remaining evidence against Kelly was so overwhelming that Gorman would still have arrived at a conviction.
Ash has now filed an appeal of Hurley’s decision with the Court of Appeal division of the Supreme Court. The grounds for the defence’s appeal state that Hurley erred in affirming Kelly’s convictions based on evidence Hurley ruled should have been excluded from the trial, in finding that a conviction was inevitable even without that evidence and that a new trial would also result in convictions.
Documents filed by Ash also state Hurley gave no reasons for dismissing the appeal in relation to the misapprehension of some evidence heard at trial and that Hurley made certain inferences where there was no evidence presented from which to draw such inferences.
As for the cross appeal filed by the Crown, Khaladkar is arguing that Hurley erred in ruling that Gorman was mistaken in admitting the similar fact evidence and the statements made by Kelly that were heard at trial.
Kelly had turned himself in to the RNC the day Hurley’s decision was released in early September so he could begin serving the 10-month sentence Gorman gave him. He was released upon the filing of the appeal of Hurley’s decision and, according to Ash, spent one week incarcerated.
Kelly, who has been suspended without pay, still has another charge of making indecent phone calls outstanding before the courts. That matter was called in provincial court in Corner Brook Tuesday morning but was set over until March, pending the outcome of the latest appeal process.
