'I'm not a liar': Officer admits he kept silent about ex-deputy chief at Oland crime scene
Sgt. Mark Smith, head of forensics, tells Dennis Oland murder retrial he was waiting to be asked about it
The head of the Saint John Police Force's forensic unit admitted Friday he kept silent about finding the former deputy chief and another officer in the bloody Richard Oland homicide scene.
But Sgt. Mark Smith testified it was never his intention to mislead the court.
"I admit to making mistakes at the crime scene, but I'm not a liar," he said.
Smith was being cross-examined by Dennis Oland's defence lawyer about why he had failed to mention in any of his notes or reports that he found then-inspector Glen McCloskey and Const. Greg Oram in the victim's office on July 7, 2011, before he had finished processing the scene for evidence.
When Smith had been asked about the matter on Thursday, he said he knew he was going to testify and expected it would come up then.
On Friday, Michael Lacy challenged Smith's "proposed innocent explanation."
He pointed out Smith testified at Oland's preliminary inquiry in 2014 and at his first trial in 2015 but never disclosed finding McCloskey, who was his supervisor, and Oram alone together in the office, with the body still present and without any protective gear on.
You're right.- Mark Smith, forensics sergeant
"And that's because the right question hadn't been asked of you, is that right?" asked Lacy.
"I was waiting for the question, yes," replied Smith, acknowledging he never volunteered the information and "misspoke" Thursday when he denied he was waiting for the "right question."
"So your claim … that you were going to testify and it would all come out — that was only if someone happened to ask you a question about it, correct?" pressed Lacy.
"It was discussed …," Smith started to say, his voice trailing off. After a long pause, he said, "You're right."
Oland, 50, is being retried for second-degree murder in the bludgeoning death of his father.
He is the last known person to see the multimillionaire alive when he visited him at his investment firm office at 52 Canterbury St. on the evening of July 6, 2011. The body of the 69-year-old was discovered in a pool of blood in the office the next morning. He had suffered 45 sharp- and blunt-force injuries.
A jury found Oland guilty in December 2015, but the New Brunswick Court of Appeal overturned his conviction and ordered a new trial, citing an error in the trial judge's instructions to the jury.
He is being tried by judge alone in Saint John's Court of Queen's Bench.
The trial is scheduled to resume Tuesday at 9:30 a.m.
Earlier in the trial, Smith testified that he grudgingly gave in to superior officers who "wished to view" the body before his forensic testing was complete.
He said he instructed McCloskey, now-retired Staff Sgt. Mike King, Sgt. Dave Brooker, and possibly "somebody else too" on where they could walk and how far they could go. They were only inside the office for "a few seconds" before they retraced their steps without touching anything, he said.
Later, Smith left to retrieve some supplies from his van and when he returned, he found McCloskey and Oram deeper in the crime scene than he had previously allowed and ordered them to "get out."
Under cross-examination Thursday, Smith agreed it's "very possible" important evidence could have been compromised by McCloskey and Oram's movements within the office and their proximity to the body.
Oland's defence team has accused the Crown of purposely "hiding" McCloskey and Oram by not calling them to testify at earlier proceedings.
The issue of McCloskey and Oram's unauthorized trip into the crime scene first arose during Oland's first trial with the testimony of the retired staff sergeant.
King testified in October 2015 — and again last week — that McCloskey had encouraged him not to reveal to the court that McCloskey had entered the bloody office. King told the court he replied that he had "never lied on the stand in 32 years" and he "wasn't about to start."
McCloskey, who was promoted to deputy chief in January 2015, has repeatedly denied King's allegations. He told the court during Oland's first trial that he had entered the office twice — first under the supervision of Smith to observe the body and then farther in with Oram, out of "curiosity."
Prompted criminal and conduct investigations
Halifax police, at the request of then-chief John Bates, conducted a criminal investigation of McCloskey over the alleged "witness tampering." No charges were laid.
An independent investigator hired by the New Brunswick Police Commission to perform a professional conduct review concluded McCloskey and King did have the conversation King described.
He found McCloskey used words to the effect of "you don't have to tell them that." He also found McCloskey made false statements at Oland's first trial and to Halifax police.
McCloskey was scheduled to face an arbitration hearing but the matter was dropped when he retired earlier this year because the police watchdog only has the authority to discipline active officers.
The New Brunswick Police Association, which represents municipal officers, slammed the commission's investigation of McCloskey.
The commission is reviewing how it conducts investigations.
'Waiting for the hammer to drop'
On Friday, Lacy asked Smith about being interviewed by Halifax police during their criminal investigation.
"The way you described it to them, I'm going to suggest to you, sir was, 'Just kept waiting for the hammer to drop,'" said Lacy, referring to when the McCloskey-Oram issue would come up in court.
Smith said that when he was previously cross-examined by the defence and questioned about people being at the scene, he was only asked about a specific time period and had testified, "Not at that time."
He said he expected the defence would follow up on that answer, but they didn't. "I was concerned about that."
Lacy argued if Smith was concerned, he could have raised it on his own.
"Correct. And I should have," replied Smith.
Chance to 'clarify'
When court took a recess at the end of Lacy's cross-examination, Smith approached the counsel table and asked, "I don't get a chance to add to what was asked of me?"
"See, when you want to clarify something, you don't get a chance," he said to reporters as he stormed out of the courtroom.
When court resumed, lead Crown prosecutor P.J. Veniot gave Smith that opportunity on redirect.
"My Lord, it was never any intention of mine to mislead the court — this court, the court at the first trial or the preliminary trial," Smith told Justice Terrence Morrison.
He said he had discussed the McCloskey-Oram "situation" with the Crown before and after the preliminary inquiry and before the first trial.
"My thought was that either the Crown or the defence during their strategy, as they saw fit, would bring that up," he said.
"As like today, followup questions cannot be sometimes brought forward by a witness because you don't have time. I wasn't allowed to provide any of this earlier."
Conflicting accounts
McCloskey and Oram gave conflicting accounts of the incident when they both testified last week.
Oram, who is now a sergeant, said he went into the office first and was crouched about two or three feet away from the body.
When he looked up, he said, he saw McCloskey "half-sitting" on either a desk, or table or credenza on the opposite side of the office than Smith had previously allowed, and opposite to where McCloskey had testified to being.
He then followed McCloskey's lead, deeper into the scene, zigzagging throughout the office, he said.
McCloskey said he entered the office first and showed Oram the spot Smith indicated not to go beyond, but then Oram wandered around, went into a back room and pushed a vertical blind over to look outside.
McCloskey admitted to the retrial he went farther into the office than he had testified to at the first trial and that it was "100 per cent totally wrong" for him to have been in there at all, but he denied he ever sat down or leaned against anything.
He also said Smith had "invited" him into the office the first time. Smith disputed that claim.
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