Dennis Oland murder appeal decision possible by Monday

Dennis Olandcould learn by Mondaywhether his murder conviction in the 2011 death of his father, New Brunswick multimillionaire Richard Oland, will be overturned.

Chief Justice Ernest Drapeausaid he and his fellow appeal panel justicesmight have been able to deliver their ruling sooner, butare "struggling" with the "difficult issue" ofOland's"post-offence conduct,"referring to his untrue statement to police about what jacket he was wearing when he visited his father the night he was killed.

Olandsaid he was wearing a navy blazer, but video surveillance and witness testimony showed he was actually wearing a brown sports jacket, which was later found to have four small bloodstains on it and DNA matching his father's profile.

Drapeaualso questioned whether the cost of a retrial should "comeinto play at all" inthe appeal panel's decision, given the expense of the initial lengthy trial.

"I'm assuming not, but," he said, his voice trailing off in the Fredericton courtroom.

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Oland, 48, was found guilty of second-degree murder by a Saint John Court of Queen's Bench jury in December, following a three-month trial and roughly 30 hours of deliberations over four days.

Hisdefence lawyers contend the verdict was "unreasonable" in the circumstantial case, and that the trial judge made errors in his instructions to the jury and in allowing some pieces of evidence, includingOland'sblood-stained brown sports jacket.

They are seeking to have the Court of Appeal of New Brunswick quash the conviction, and eitheracquitOlandor order a new trial.

Drapeausaid at the beginning of Thursday's proceedings that the three-justice panel will "do everything withinits power torender its verdict sooner rather than later."

Monday at 11 a.m. has been set aside "in the event we are in a position to render our decision," he said before prosecutor Kathryn Gregory continued to present arguments on behalf of the Crown, urging the panel to uphold the jury's verdict.

It's unclear whether reasons for the panel'sdecision will be provided at that time. Drapeaupreviously suggested the reasons might come later, to help accelerate the process.

On Thursday, he asked Gregory what should happen if the panel finds there was an "important" error in law.

"And I'm not saying there is," Drapeau said. "Should we be reticent at ordering a new trial because this was an expensive first trial?Does that come into the equation? Or should we simply just decide render justice according to law, that's it?"

Gregory said "cost is obviously a factor in the public interest," but "certainly it's justice according to law." No estimated cost has been provided.

Gregory focused much of her arguments Thursday on the post-offence conduct issue.

On Wednesday, Drapeau expressed concerns about how Walsh had handled hisinstructions to the jury on the issue. On Thursday, however, Drapeauappeared to soften his stance.

"I'm not certain at all that there was an error made in the charge to the jury on that issue. I think that you've made a significant contribution to the evolution of my thinking on that," he told Gregory. "My thoughts on it are not a finished construction and if they were, perhaps we could have rendered the decision today."

'We have an open mind'

"I think my colleagues and I are struggling with that difficult issue of post-offence conduct and we have an open mind on whether or not there was an error or not,and we have an open mind on the other important points that have been raised by counsel."

Gregory argued Walsh hadsought input from both the Crown and defence in compiling his instructions to the jury. Conferences were held on Dec. 3, 4, 14 and 15, and the defence didn't raise concerns about the issue at that time, she said.

On Wednesday, defence lawyer Alan Gold had said the defence team felt it would be "essentially a waste of time" to argue the matter with the trial judge. But Gregory wasn't convinced. She said counsel normally states any objections to get them on the record.

Drapeauagreed."You have an objection, you make it. That's the law."

It'sdifficultto appeal jury convictions because juries do not give reasons for their verdict, University of New Brunswickassociate law professor NicoleO'Byrnehas said.

Drapeau, Justice Margaret Larlee and Justice Kathleen Quigghave not revealed any leanings during the previous two days of the hearing, askingchallenging questions of both the Crown and defence.

Drapeau, in particular, has "play[ed] devil's advocate" on a number of issues.

On Wednesday, he asked Gregory why the Crown didn't make use of Oland'ssurprise testimony about making a third trip to his father's office on July 6, 2011, the night police believe he was killed.

Gregory said it was "simply a decision made" by the trial prosecutors.

Oland originally told police inhandwritten and video statements that he went to his father'sFar End Corporationoffice building at 52 Canterbury St., but didn't go in because herealized he forgot some genealogy papers he wanted to discuss with him.

He said heleft to retrieve them from his own office, but realized he couldn't access the work elevator without an after-hours key, so hewent back to his father's office, they had their visit and he left.

But during his testimony, Oland revealed a third trip. He said he went back again because he realized he forgot an old camp logbook he was supposed to return to his uncle who was visiting from Toronto.

Defence didn't seek 'directed verdict'

Drapeau also grilled defence lawyer Alan Gold about why he his colleagues didn't ask the trial judge for a "directed verdict" to acquit Olandfollowingclosing arguments.

It's a motion defence lawyers are entitled to use when they "know in their heart of hearts" a case is weak and should not go to a jury for deliberations, said Drapeau."It was your professional judgment that there was enough of a case to go to the jury?"

• Dennis Oland murder appeal considers his 'lie' about sports jacket with bloodstains

Gold said thedefence felt it would be "essentially a waste of time," but maintained throughout "there was no case."

"Lest you be under any misapprehension, we argued vehemently at the preliminary inquiry there should not be a committal," he stressed.

"I'm not suggesting that you made a mistake in not making a motion for a directed verdict of acquittal at all,"Drapeaureplied.

Oland isserving a life sentencewith no chance of parole for at least 10 years.