October 18, 2016 - 1:53 PM
FREDERICTON - Dennis Oland's lawyer says the Crown used speculation that was not backed by evidence to get a conviction of second-degree murder in the killing of Oland's multi-millionaire father, Richard Oland.
Alan Gold told the New Brunswick Court of Appeal Tuesday that the Crown's theory that Oland killed his father in a fit of rage over money or his father's affair, was "unsupported by an evidentiary foundation."
Richard Oland was found face down in a pool of blood on the floor of his Saint John office on July 7, 2011.
The well-known New Brunswick businessman, a member of the family that owns Moosehead Breweries, had suffered 45 blunt and sharp force blows to his head, neck and hands, although no murder weapon was ever found.
Gold focused on statements made by Oland to police that he said were innocent mistakes, but were painted by prosecutors as deliberate attempts to cover up his guilt.
Chief among these was a discrepancy regarding what Dennis Oland told police he was wearing the day his father was bludgeoned to death.
The younger Oland told police it was a navy jacket when it was actually a brown Hugo Boss that was later found to have miniscule blood stains and DNA matching Richard Oland's profile on it.
Gold said Oland made an honest mistake, and it's unreasonable for the Crown to suggest he was trying to mislead police.
Gold, who is seeking to overturn Dennis Oland's murder conviction, said there was no indication of guilt because of the fact the jacket was taken to the dry cleaners the day after Oland was questioned by police.
"It's not even clear he had anything to do with taking the laundry in," Gold told the court.
"The stains are nearly invisible. (Dennis Oland's) car wasn't attempted to be cleaned. When you look at all of the evidence, that is not a reasonable inference and that is our submission."
Oland's lawyers also say the warrant for Oland's brown jacket did not permit police to do forensic testing, or send it out of province to the RCMP lab.
Gold said the warrant had actually lapsed before police started to examine the jacket.
"This was a separate search. It was not authorized under the initial warrant contrary to the trial judge's conclusion," he said. "And it was an improbable search because the jacket should have been covered in blood according to their sworn evidence."
Oland's defence is alleging several errors by the trial judge in his instructions to the jury, including directions on evidence related to the jacket.
Gold said the judge should have told the jury that the dry cleaning and erroneous statement — about the colour of the jacket — to police were not much assistance to them in their deliberations.
He said by not giving that instruction, it allowed for circular reasoning among the jurors.
"The actions that on their face appear innocent ... start to look like the actions of a guilty person only if you assume that the accused was the guilty person," Gold told the three-judge panel.
The small court was filled Tuesday to capacity with reporters, members of the Oland family and interested onlookers.
Dennis Oland, a 48-year-old financial planner, was convicted last December of second-degree murder and sentenced to life in prison with no eligibility for parole for at least 10 years.
Wearing a black pin-striped suit, white shirt and red tie, Oland sat at the back of the courtroom, flanked by a pair of sheriff's deputies.
The defence also alleges the trial judge erred by admitting cell phone records which purported to show Richard Oland's missing iPhone "pinged" off a tower east of the city at 6:44 p.m., after Dennis left his father's office.
During the trial, Anthony Shaw testified that he was at Printing Plus — a business directly below Richard Oland's office — and heard noises that he believed to be the murder between 7:30 and 8 p.m. on the evening of July 6, 2011.
Gold said that the trial judge told the jury that the time of the ping — an unanswered text message — was inconsistent with Shaw's testimony.
"In doing so, the learned trial judge denied the appellant the full benefit of the alibi that Mr. Shaw's evidence provided," Gold said.
He said if the jury assumed that Richard Oland was already dead, that "torpedoed" Shaw's evidence.
Security camera video presented at the trial showed Dennis Oland shopping in Rothesay with his wife at the time that Shaw said he heard the noises.
Oland's lawyers are seeking an acquittal or a new trial. The appeal is expected to last until Thursday afternoon.
Chief Justice Ernest Drapeau said Tuesday that the court would attempt to make its decision as soon as possible.
News from © The Canadian Press, 2016