The judge at Dennis Oland's murder trial may have erred in his instructions to the jurors on how to treat Oland's false statement 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.

Oland said 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 false statement was a "lie" concocted by Oland to mislead police in their investigation. Oland, 48, was found guilty on Dec. 19, 2015, and is serving a life sentence with no chance of parole for at least 10 years.

His defence 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, they contend the trial judge should have instructed the jurors to ignore that evidence, because there was "no reasonable inference of guilt" unless the jurors fell into "circular reasoning" and "guilt was first assumed."

Court of Appeal Chief Justice Ernest Drapeau, 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."

Ernest Drapeau, chief justice, Court of Appeal of New Brunswick

Court of Appeal of New Brunswick Chief Justice Ernest Drapeau debated the distinction between lies, deliberate lies and fabrications with counsel on Wednesday. (CBC)

"The case law seems 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," said Drapeau.

"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 Bench Justice John Walsh's instructions, said Drapeau. Walsh appears to have done "precisely the opposite," he suggested.

​"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 appeal panel 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 did point them to 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 verdict was "unreasonable," given the Crown's "totally circumstantial" case and "speculative" statements.

Although the jury was "well-intentioned, well-meaning [and] hard-working," the complex case calls for the judicial experience of the appeal panel to review all of the 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 decision following a three-month trial and 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 murder was a key piece of evidence in the Crown's case.

​Gold, who presented arguments on behalf of the three-member defence team, urged the appeal panel to consider which of the "two competing" hypotheses is "more reasonable":

  • Oland is a "singularly unlucky innocent person whose father happened in the past to leave a few minute [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 killer who within 15 minutes was 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, leave no traces of blood in his uncleaned car, or on the BlackBerry he took a call from his wife on just minutes after "supposedly … having killed somebody."

Under this second hypothesis, Oland also spoke "normally" with his wife and within about an hour went shopping "normally" with her, said Gold.

ns-hi-richard-oland-852

Richard Oland, 69, was found dead in his Saint John office on July 7, 2011. (Canadian Yachting Association)

Oland then withstood hours of police questioning "that turned into interrogation" without making any admission of guilt.

"And then, the ultimate unlikely event: a completely independent alibi by persons who hear the killing and immediately come forth to the police and put the killing noises at 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 son was the last known person to see him alive during a visit at his office the night before.