Dennis Oland murder appeal considers his 'lie' about brown sports jacket

The judge at Dennis Oland's murder trial may have erred in his instructions to the jurorson how to treatOland'sfalsestatement to police about what he was wearing the night his father was bludgeoned to death, New Brunswick's top Appeal Court judge suggested on Wednesday.

Olandsaid he was wearing a navy blazer when he went to visit his father, multimillionaire Richard Oland, at his Saint John investment firm office on July 6, 2011.

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.

The Crown argued at his second-degree murder trial last fall the falsestatement was a "lie" concocted by Olandto mislead police in their investigation. Oland, 48, was found guilty onDec. 19, 2015, and is serving a life sentence with no chance of parole for at least 10 years.

• Dennis Oland appeal judge rejects lawyer's suggestion there was no animosity with dad

Hisdefence lawyers, who are seeking to have his conviction overturned by the Court of Appeal and either an acquittal entered or a new trial ordered,maintain his "erroneous statement"was an "innocent mistake."

Among their grounds of appeal, theycontend the trial judge should haveinstructed the jurorsto ignore that evidence, because there was "no reasonable inference of guilt" unless the jurorsfell into "circular reasoning" and "guilt was first assumed."

Court of Appeal Chief Justice ErnestDrapeau, one of three justices hearing the appeal scheduled to wrap up on Thursday, with the possibility of a ruling the same day,told the Fredericton courtroom there are "special rules of law" that apply to "lies."

"Thecaselawseems to suggest that it's too dangerous; that if you have ordinary people sitting on a jury and they make a finding of a lie, they leap to guilt," saidDrapeau.

"So to prevent that the law has a policy, this kind of guard against that move being made by the jury from disbelief to guilt," he said.

"A jury must be told that before a false statement can be treated as incriminating evidence there must be a reasonable evidentiary basis for inferring that the statement is not only false, but fabricated and that the accused has been complicit in that fabrication in order to conceal his involvement in the offence."

Lacking 'magical words'

"I don't see those magical words," in Court of Queen's BenchJustice John Walsh's instructions, saidDrapeau.Walsh appears to have done "precisely the opposite," hesuggested.

"To decide the reason why Dennis said he was wearing a navy blazer, you should consider all of the evidence," Walsh told the jury.

On Wednesday,prosecutor Kathryn Gregory urged the appealpanel to accept Walsh's instructions to the jury on the matter and to uphold the jury's guilty verdict.

She said Walsh did not explicitly tell the jurors, "here is the independent evidence of fabrication," but he didpoint themto other evidence they could consider in weighing Oland's statement about what he was wearing, including:

• It was less than 24 hours after the fact.
• He did not hesitate in giving his answer.
• He accurately described which shirt he was wearing, even though he has many more shirts than jackets.
• Blood was found on the jacket.

Drapeau said the jacket is not a so-called "smoking gun" in the case, but it's "not peripheral" either."I would have tended to say it was significant on the scale of conviction. But that's me."

'Unlucky innocent person'

Earlier in the day, defence lawyer Alan Gold argued the jury's guilty verdictwas "unreasonable," given the Crown's "totally circumstantial" case and "speculative" statements.

Although the jury was "well-intentioned, well-meaning [and]hard-working," the complex casecalls forthejudicial experience of the appeal panel to review all ofthe evidence in the appropriate context, Gold said.

Properly and completely set out, the inference of guilt is incredibly improbable and unreasonable.- Alan Gold, defence lawyer

The jury reached its unanimous decisionfollowing a three-month trialand roughly 30 hours of deliberations over four days.

The bloodstained brown Hugo Boss sports jacket seized from Oland's bedroom closet a week after the murderwas a key piece of evidence in the Crown's case.

Gold, who presented arguments on behalf of the three-memberdefence team, urged the appeal panel to consider which of the "two competing" hypothesesis "more reasonable":

• Oland is a "singularly unlucky innocent person whose father happened in the past to leave a fewminute [blood] stains on a jacket and he happened to visit his father the day that he was murdered."
• Oland is "an incredibly lucky, completely amateur killerwho within 15 minuteswas able, with some mysterious weapon of unknown origin, to brutally batter his father to death without getting any significant [blood] spatter stains on his clothing, take his clothing to [dry] cleaners who check for blood stains because they use a blood stain remover which is not done because there's no stains found."

"He's so lucky," Gold continued with the line of argument,he was able to dispose of both the weapon and his father's iPhone, which he allegedly took "for some unknown reason," without being seen,leaveno traces of bloodin his uncleaned car, or on the BlackBerry he took a call from his wife on just minutes after "supposedly having killed somebody."

Under this secondhypothesis, Oland also spoke "normally"with his wife and within about an hourwent shopping "normally"with her, said Gold.

Oland then withstoodhours of police questioning "that turned into interrogation" withoutmaking any admission of guilt.

"And then, the ultimate unlikely event: a completely independent alibiby persons who hear the killing and immediately come forth to the police and put the killing noisesat a time when his innocence had to be undoubted," because he is captured on security video shopping with his wife in Rothesay at that time.

"Properly and completely set out, the inference of guilt is incredibly improbable and unreasonable once you consider all of the evidence"Gold argued. "It is the inference of innocence that we submit that is the only reasonable inference."

The body of Richard Oland, 69, was discovered lying face down in a pool of blood in his Saint John investment firm office on July 7, 2011. He had suffered 45 blows to his head neck and hands.

His sonwas the last known person to see him alive during a visit at his office the night before.