Dennis Oland doesn't have to prove anything, judge reminds jury
Burden to prove the accused is guilty of murder rests with Crown, says judge
The judge presiding at Dennis Oland's second-degree murder trial in Saint John began his instructions to the jurors on Tuesday by reminding them that the accused is presumed innocent and doesn't have to prove anything.
It's up to the Crown to prove its case beyond a reasonable doubt, stressed Justice John Walsh of the Court of Queen's Bench.
The jury must be convinced that Oland killed his father, prominent New Brunswick businessman Richard Oland, on or about July 6, 2011, that he did so unlawfully, and that he meant to kill him or cause him bodily harm that he knew would likely cause his death.
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It is not enough to believe the accused is probably or likely guilty, said Walsh.
But he added it is almost impossible to prove anything to absolute certainty.
Reasonable doubt, he explained, is based on common sense and arises from either the evidence or lack of evidence.
The 69-year-old multimillionaire had suffered 45 sharp and blunt force injuries to his head, neck and hands. No weapon was ever found.
Dennis Oland, 47, who was the last known person to see his father alive during a meeting at his office the night before, has pleaded not guilty to second-degree murder.
Instruction to the jury
Walsh told the jurors his job is to review the evidence presented over the past three months and to instruct them on the law, which he expects will take up to two days, given the nature of the case and length of the trial. Their job is to assess the evidence impartially and decide the facts, he said.
The veteran judge cautioned jurors on dealing with circumstantial evidence in the case. They must distinguish between inference and speculation, he said, citing police speculation that a drywall hammer may have been the possible murder weapon as an example.
For the jury to find a drywall hammer was the weapon used would be "pure speculation and conjecture," he said. It "might be a base for public gossip, but it is not for you as judges."
Walsh said the jurors should rely only on the evidence they have seen and heard during the trial and make a decision without sympathy, prejudice or fear.
They must not be influenced by public opinion, he said, adding that was the promise they made when they were sworn in.
Blood, DNA on accused's jacket
Oland told police he was wearing a navy blazer when he visited his father on the night in question, but video surveillance and witness testimony showed he was actually wearing a brown jacket.
During the trial, the jury heard that three small stains found on the right sleeve, upper left chest and on the back were confirmed to be blood and that DNA extracted from those areas matched the victim's. The chances of it not being the victim's DNA are one in 20 quintillion, a Crown expert testified.
Walsh, who was one of the first lawyers in Canada to use DNA evidence in the 1991 trial of serial killer Allan Legere and is considered one of the country's foremost experts in the legal application of forensic DNA typing, gave the jurors a "rather extensive review" of the jacket-related evidence, saying it raises a number of questions for them to consider.
"I know this is a little difficult ladies and gentlemen," he said. "Please bear with me, we'll get through this."
Walsh said there's no way to know whether the DNA actually came from the blood, or from some other DNA source, such as saliva, or sweat.
The jury has heard evidence about Richard Oland being "up close and personal" in his social interactions, often leaning in as he spoke to someone and touching them on the arm or back.
Meanwhile, Crown DNA experts testified that in their opinion the DNA most likely came from the blood.
From slaying, or before?
Similarly, there is no way to know when or how the blood was deposited, said Walsh.
It's up to the jury to decide whether it was from the crime scene or a previous occasion, he said.
The accused testified his father sometimes had blood on him from chewing his cuticles and scratching scabs on his scalp. He also recounted at least one occasion when his father had handled his jacket.
Oland's account was not challenged by the Crown during cross-examination, but Walsh pointed out that does not indicate acceptance. The jurors must decide on Oland's credibility, he said.
The judge also discussed the testimony of two bloodstain experts about the amount of blood the killer would have had on him or her.
Defence expert Patrick Laturnus said there would have been a "significant" amount on the assailant. If Oland's brown sports jacket had been worn during the slaying, it would have had "so much blood" on it, it would have been visible in a photograph, despite its dark colour, he said.
Crown expert RCMP Sgt. Brian Wentzell, however, could not say how much blood would have gotten on the killer. He said it would depend on the positions of the victim and assailant, as well as the type of weapon.
A blunt surface, for example, could cause blood to go in all directions, while the small surface area of a sharp edge would disperse blood to the sides, rather than back at an attacker, Wentzell said.
Effect of dry cleaning unclear
Walsh noted neither Laturnus nor Wentzell could say if the bloodstains on the jacket were spatter — stains that are created either from force being applied to a liquid blood source, or from castoff from an object, such as a weapon, or from blood being expelled from the nose or mouth.
He also noted, however, that the jacket had been dry cleaned the day after police told Oland he was a suspect, and it's unclear from the evidence what, if any, effect that process would have on the stains.
Walsh cautioned the jurors about the technical dry cleaning questions the defence asked VIP Dry Cleaners' co-owner Jin Hee Choi, who deals with the administrative side of the business.
Choi agreed under questioning by Alan Gold that if a bloodstain isn't broken down before being heated up in the dry cleaning process, it will become fixed in the fabric.
Walsh said her answer should "carry very little, if any weight" because it was an opinion she was not declared qualified to give.
"I can tell you, if I were making any decisions, I would not rely on her answers," he said.
Power outage delays proceedings
The jurors have been sequestered overnight, and Walsh is scheduled to continue giving his instructions to them on Wednesday at 9 a.m. AT.
Walsh had told jurors his charge could take up to two full days. It's unclear if or how a power outage at the Saint John Law Courts building on Tuesday afternoon will affect the schedule.
The jurors were escorted out by a sheriff and everyone in the crowded gallery was asked to leave and to take the stairs down to the third floor lobby.
It's unclear what caused the outage, which followed an electrical fire in a utility closet that forced the closure of the building for three days over concerns about air quality. A power supply battery bank for the building's emergency lights was the source of the fire, officials have said.
Power was restored Tuesday at about 2 p.m., but the courtroom was soon evacuated again because the outage had affected the recording equipment and all proceedings must be recorded.
The trial resumed around 3:20 p.m. Walsh apologized to the jurors, who were sequestered in the judges' lounge throughout the recess. He joked they're not allowed to tell anyone how nice the lounge is.
Once Walsh has completed giving his instructions on Wednesday, one of the 13 jurors will be eliminated by a random draw.
The extra juror was in place as a safeguard, given the length of the trial, in case anyone got sick or was unable to serve for some other reason.
The remaining 12 jurors will then begin deliberations and remain sequestered until they reach a unanimous verdict.