Appeal court sees 'independent' evidence Dennis Oland 'concocted' blazer story

New Brunswick's highest court believes there was "independent" evidence at Dennis Oland'strial that his "false statement"to Saint John police about what jacket he was wearing the night his father, multimillionaire Richard Oland, was murdered was "concocted."

In a decision written by Chief Justice Ernest Drapeau and released on Thursday, the Court of Appealstates the jury could have"reasonably" concluded Dennis Oland's contention he was wearing a navy blazer when he visited his father instead of the brown sports jacket he was actually wearing was "a lie and not an honest mistake as he alleged."

"Moreover, there was evidence from which the jury could infer [Oland] was involved in the delivery of the [blood-stained brown sports] jacket to the dry cleaners," wrote Drapeau.

'There was evidence from which the jury could infer [Oland] was involved in the delivery of the [blood-stained brown sports] jacket to the dry cleaners.'- Ernest Drapeau, chief justice New Brunswick Court of Appeal

Butthe trial judge erred in his instructions to the jury on thisissue of "significant importance," which formed the basis of the appeal court's oral decision on Oct. 24 to overturn Oland'ssecond-degree murder conviction and order a new trial, Drapeauwrote on behalf of the three-justice panel, which also included Justices Margaret Larlee and Kathleen Quigg.

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"The jury must be told that it cannot rely on a deliberately false statement as a piece of circumstantial evidence on the Crown's side of the scales unless there is independent evidence that the statement was concocted," Drapeauexplained in the 41-page decision.

"Moreover, the jury must be directed to any item of independent evidence from which it might infer concoction."

Oland'scase is not one "where the evidence pointing to guilt is so overwhelming that the outcome would necessarily have been the same, with or without the [trial judge's] error," wroteDrapeau.

In the decision, Drapeau does not elaborate on on what the "independent" evidence is.

He expects the issue will be "fully debated" at Oland'sretrial, he added, noting the burden of presenting "independent" evidence will be on prosecutors.

The appeal court further states the jury's guilty verdict was not unreasonable or unsupported by the evidence, so "an acquittal by this court would be wholly inappropriate."

Deadline for Supreme Court appeal missed

Earlier this month, prosecutors announced they planto ask the Supreme Court of Canada to review the appeal court's decision to quash the jury'sDec. 19, 2015 guilty verdict.

Prosecutors did not divulge their reasons, but did say they werewaiting for the appeal court's detailed written decision, which wouldhelp form the grounds oftheir application seeking leave to appeal to the Supreme Court.

They must successfully argue the legalissues involved are of national importance and worthy of review by the country's highest court.

Normally, parties have 60 days from the date of a decision to file an application for leave to the Supreme Court. In this case, the deadline would have been on Dec. 23.

Prosecutors andOland'sdefence teamfiled a joint request to the Supreme Court on Dec. 16, seeking an extension until Jan. 20, or 10 days after the release of the appeal court's written decision whichever came later.

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The Supreme Court has not yet agreed to thatrequest, a court spokesman confirmed to CBC News on Thursday.

Still, prosecutors have said they plan to file their application by Jan. 22.

The respondent normally has 30 days to file and the applicant must then file a reply 10 days later.

Under the jointly requested extended timeline, however,Oland'sdefence team expects tofile a cross-appeal application within 60 days, seeking an acquittal instead of a retrial,and prosecutors plan to respond within 30 days.

Retrial on hold

A date forOland'sretrial in the 2011 death of his father, multimillionaire RichardOland, will not be set until the Supreme Court decides whether it will agree to the extension and hear the appeal.

Prosecutors and the defence have indicated adecision from Supreme Court is not expected untilJuly, based on the court's average three-month turnaround.

But that three-month average is calculated based on when an application is filed, not after the response and reply are also in the court's hands, the court spokesman explained.

So if the clock starts ticking on Jan. 22, when prosecutors plan to file, the Supreme Court could make a decision as soon as April.

If a new trial proceeds, it is not expected to be heard until 2018, officials have said.

Oland, 48, who has two daughters, a son and a stepson, is free on bail, living in Rothesay under conditions, pending his new trial.

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. No weapon was ever found.

Dennis Oland was the last known person to see his fatheralive during a meeting at his office the night before.

A brown sports jacket was seized from his bedroom closet a week later. Forensic testingshowed that jacket, which had been dry cleaned, hadfour small bloodstains on it and DNA matching his father's profile.

Honest mistake vs.'intentional lie'

The trial judge told the jurors if they found Oland's inaccurate statement about which jacket he was wearing was "'an intentional lie," which was related to the commission of the murder, they could "consider this evidence, together with all the other evidence in the case, in reaching [their] verdict," wrote Drapeau.

"With respect, that instruction was prejudicial to the defence and is erroneous in law," states Drapeau.

"Most people understand that all lies are intentional. Thus, the jury would have understood the expression 'intentional lie' as used in the charge, referred to a lie, plain and simple," he explained.

But there is a legal framework that must be applied when it comes to questions about lies, said Drapeau, and jurors must have independent evidencethe lie isfabricated or concocted to conceal involvement in a crime.

"If the record did not reveal any 'independent' evidence from which concoction might be inferred, the judge would have had to instruct the jury the appellant's 'lie' about the jacket could not be used as inculpatory evidence. He did not," wrote Drapeau.

"I can only assume that course of action was followed because the judge was satisfied there was independent evidence of concoction.That is likewise my view," he wrote.

But without proper instructions, jurors could have made a leap from "bare lie to guilt," said Drapeau.

"The deliberations lasted some 30 hours, and the 'bare' lie may well have provided the argument that brought to the Crown's side one or more of the wavering jurors."