Justices hearing the appeal of Dennis Oland's murder conviction spent much of Wednesday questioning Crown prosecutors about when a lie is a lie, and when it's an honest mistake.
The crux of the debate in New Brunswick's Court of Appeal was Dennis Oland's statement to police five years ago that he was wearing a navy jacket when he went to visit his father on the evening that Richard Oland was killed. Eyewitnesses and security camera video showed Oland was actually wearing a brown jacket.
That brown Hugo Boss jacket was later found to have a number of minuscule blood stains and DNA that matched the profile of Richard Oland.
The elder Oland, a wealthy and well-known businessman, was bludgeoned to death in his Saint John office in July 2011.
He suffered 45 blunt and sharp force blows to his head, neck and hands.
During the trial last year, the Crown portrayed Dennis Oland's statement about his jacket as an intentional lie meant to mislead police. But Oland himself testified it was simply an honest mistake.
Oland's lawyer, Alan Gold, argued before the Court of Appeal this week that the trial judge did not properly instruct the jury, leading to circular reasoning and a presumption of guilt by the jury.
Chief Justice Ernest Drapeau said Wednesday it was an important piece of evidence, and asked a lot of questions of Crown prosecutor Kathryn Gregory, including whether other independent evidence is needed to establish if a lie is an intentional fabrication.
But Gregory told the court that she believed the judge did properly give the jury the options to consider when he delivered his charge.
"Look at how this statement was given to the police when you're assessing whether or not this was an innocent mistake, as testified to by Dennis Oland, or whether he was intending to mislead the police," she said.
Drapeau asked Gregory if the Crown would have much of a case if it didn't have the lie about the colour of the jacket.
"From the Crown's perspective yes this is additional information, an additional piece, but it would not have undercut the Crown's case," she replied.
Earlier in the day, Gold wrapped up his submissions to the three justices of the Court of Appeal.
He argued that the jury's verdict of guilty in his second-degree murder trial was unreasonable and an acquittal is the reasonable verdict when viewed by legal experts.
"The lens of judicial experience understands why, in the circumstances of this case, the well-intentioned, well-meaning, hard-working jury produced a verdict that the law recognizes as an unreasonable one in law, and one which this honourable court is required by law to reverse," Alan Gold said Wednesday as he addressed three justices of the New Brunswick Court of Appeal.
Gold said the case against his client was totally circumstantial, and relied on a persuasive argument from the Crown speculating on what they believed happened.
Chief Justice Drapeau expressed concerns Tuesday about speculation used by the Crown during the trial.
On Wednesday, Gold supplied the court with examples of case law dealing with speculation.
"If the Crown weaves a persuasive argument based on what they believe really happened...that can account for the verdict, even though it should never have taken place," he told the court.
In wrapping up his submissions to the Court of Appeal, Gold said there are two possible scenarios.
He said either Dennis Oland was an unlucky innocent person who just happened to visit his father on the same day he was killed, or an "incredibly lucky amateur killer" who in 15 minutes was able to brutally kill his father, take his iPhone and dispose of it and the weapon, and leave no trace of evidence in his uncleaned car or on his Blackberry, and then, within an hour, get changed and go shopping with his wife.
Plus, Gold said, there was a completely independent alibi.
Anthony Shaw testified during the trial that he was at Printing Plus — a business directly below Richard Oland's office — and heard noises that be believed to be the murder between 7:30 and 8 p.m. on the evening of July 6, 2011. Security camera video shows Dennis Oland and his wife shopping in Rothesay during that time.
"Properly and completely set out, the inference of guilt is so incredibly improbable and unreasonable once you consider all of the evidence, " Gold said. "Instead of guilt being the only reasonable inference as required by law, it is the inference of innocence that is the only reasonable inference."
Gold has told the court that the warrant obtained by police to seize Oland's brown jacket did not permit forensic testing, or to send it out of province to the RCMP lab.
Dennis Oland was convicted in December of second-degree murder and sentenced to life in prison with no chance of parole for at least 10 years. Oland's lawyers are seeking acquittal or a new trial.
The Crown will complete its case Thursday, and Drapeau has indicated the court will have a decision as soon as possible.