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Oland retrial swings in favour of defence: Hicks

The momentum in the second-degree murder retrial of Dennis Oland in the brutal beating death of his multimillionaire father has taken a turn — one which “favours” the defence, says Toronto criminal lawyer Christopher Hicks, who has decades of experience in defending clients accused of homicide.

Hicks, partner with Hicks Adams LLP, says Oland’s second trial has seen the defence go on offence, “effectively building a case to discredit” the Crown’s evidence.

“Usually when there is a second trial it favours the prosecution,” he tells AdvocateDaily.com. “This one very much favours the defence because there are so many flaws and deficits in the prosecution’s case.”

Richard Oland, 69, was found murdered in his Saint John, N.B. office July 6, 2011. His son, Dennis, now 50, was charged two years later, and convicted in 2015. The New Brunswick Court of Appeal set aside the conviction in 2016 and ordered a new trial.

Hicks, who has provided analysis for national media during both trials, says there are multiple threads that Oland’s defence team has been able to pull on to “unravel” the Crown’s case. These include:

  • alleged mistakes in the crime scene forensic work of the Saint John Police Force
  • conflicting testimony of police witnesses
  • “tunnel vision” during the initial investigation
  • new evidence not presented during the first trial

Sgt. Greg Oram has testified that Glen McCloskey, former deputy chief of the Saint John Police, sat on a piece of office furniture in Richard Oland’s office prior to the forensic testing being completed on the first day of the investigation, the CBC reports.

Oram also told the court that he entered the crime scene, and came within two or three feet of the body and that he and McCloskey walked "through a significant amount, but not the entire office" before the head of the forensics unit returned to the crime scene and told them to get out.

The CBC reports that neither McCloskey, who was then the head of the criminal investigations division, nor Oram, at the time a constable with the major crime unit, were wearing protective gear. Oram did not testify during the first trial.

“What should have happened immediately is that the scene should have been taped off with yellow police tape all around — front, back, side, everywhere around the building — and nobody should have been allowed to enter,” Hicks tells AdvocateDaily.com

“The forensic unit, and only the forensic unit, should have suited up, and taken every precaution to protect the crime scene from contamination and to preserve the evidence. It wasn’t done.

“So now we have stories of police officers sitting on tables, drinking coffee, and walking all over the place. These weren’t forensic people, not anybody who had to be there, but as the defence said, the crime scene was sort of like a tourist site.”

During his testimony, McCloskey said he made two entries into Oland's office, one out of "professional curiosity,'' The Canadian Press (CP) reports.

"Isn't it possible you could have stepped on a small piece of evidence, something you did not see, while you were in the office?'' defence counsel Alan Gold asked him during cross-examination.

"You are correct,'' McCloskey answered.

He also testified that he did not ask an officer to lie about his visits to the crime scene, CP reports.

But retired Staff Sgt. Mike King told the court that McCloskey did ask him not to reveal his visits to the crime scene, CP reports. King made the same claim during the first trial.

Former lead investigator Rick Russell, now retired, testified he remembered Const. Stephen Davidson telling him that he had checked the back door of the office building, and found it locked, the national news agency reports. However, both the prosecution and the defence said the two were never together at the crime scene, so that conversation could not have happened.

Under cross-examination, Russell admitted he was "mistaken,'' and apologized to the court.

The conflicting police testimony adds questions about the conduct of the police during the investigation, Hicks tells AdvocateDaily.com.

“This is a critical point because the defence is working on a theory of there being an alternate suspect,” Hicks says.

“It's apparent that the killer took a back-door exit, not out the front door covered in blood, but out the back. And of course, that door and that exit were never properly examined by police forensics.”

Hicks also says the defence continues to advance the theory that Saint John police discounted all other possibilities after deciding early in the investigation that Oland committed the crime.

He points to new evidence entered at the second trial, that Gerry Lowe, now a Liberal MLA, told police he was across the street at Thandi's restaurant on either July 6, 2011, or July 5, 2011, sometime after 7:30 p.m., when he saw someone exit the 52 Canterbury St. office.

“Gerry Lowe, a respectable witness, came forward and said this is what he recalls, and this is never part of the investigation because, as the defence says, the police had tunnel vision, and were ignoring anything that didn’t co-ordinate with their theory that the killer was Dennis Oland,” says Hicks.

"Lowe's statement should have been videotaped and under oath or affirmation. This is a  fundamental, and routine for investigators taking witness statements. Failure to do so is contrary to 20 years of jurisprudence from the Supreme Court of Canada," Hicks notes.

The CBC reports that the defence has entered into evidence a time-stamped security video that shows Lowe entering Thandi's on July 6, 2011, at 7:40 p.m., and exiting at 8:35 p.m.

"The defence is working very hard at discrediting the police investigation of the crime scene to show the examination of this tragic death was poor, and the officers who attended, were undisciplined," Hicks says.

“They are also working on this alternate suspect idea, that someone else did this, and the police missed it, a) because they mishandled the forensic scene, and b) because they had tunnel vision. They only saw Dennis Oland and dismissed any evidence to the contrary.

“It’s all part of the defence building an argument that evidence of the real killer was either destroyed or never found.”

 

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