Oland murder retrial comes to abrupt halt over new evidence in 7½-year-old case

The murder retrial of Dennis Oland in the bludgeoning death of his father came to an abrupt halt Wednesday over some new evidence in the 7½-year-old case.

Defence lawyer Alan Gold advised the Saint John courtroom that the Crown "recently came into possession" of some "material," which has been disclosed to the defence.

Gold said he wasn't at liberty to discuss it but did say "counsel are agreed … it's significant in the sense that we must devote some effort and time to following it up."

He requested court adjourn for the day and resume Thursday at 9:30 a.m.

Court of Queen's Bench Justice Terrence Morrison agreed.

"We really have no other choice," he said.

The retrial was scheduled to hear from another Crown witness Wednesday afternoon. Although the name of the witness has not been revealed, it's believed to be John Ainsworth, one of two men who heard thumping noises coming from the victim's second-floor office on the night he was killed.

It's unclear if the new evidence is in any way connected to the witness, who is now expected to testify on Thursday.

Oland, 51, is being retried for second-degree murder in the death of his father, multimillionaire Richard Oland.

The accused is the last person known to have seen his father 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 found in the office the next morning, with 45 sharp- and blunt-force injuries to his head, neck and hands.

A jury found Oland guilty in 2015, but the New Brunswick Court of Appeal overturned his conviction in 2016, citing an error in the trial judge's instructions to the jury. He is being retried by judge alone.

Earlier in the retrial, Anthony Shaw testified he was helping his friend John Ainsworth with a project at Printing Plus, downstairs from the victim's office, on July 6, 2011, when he heard a "loud crash, a really hard crash," followed by 10 to 15 "quick thumps" around 7:30 p.m.

"It's my best guess," he said.

Ainsworth, who owns Printing Plus and the three-storey building, testified at Oland's first trial about hearing an initial thump, a slight lag, then eight or 10 thumps like "rapid fire" sometime between 6 p.m and 8 p.m.

The defence has time-stamped security video of the accused shopping with his wife across town in Rothesay around 7:30 p.m.

'Novel question of law'

On Wednesday morning, a voir dire was held to deal with an unusual application by Oland's defence lawyers regarding hearsay evidence about the unsuccessful search for his dead father's missing cellphone.

Oland's defence team wants the court to declare as fact that the first "roaming error" occurred on July 7, just hours after the body was discovered, as testified to by a Saint John Police Force officer.

Acting Insp. David Brooker testified he contacted Rogers Communications that day about trying to find the missing iPhone and was advised over the phone of the roaming error at 4:30 p.m. by Rogers investigator Claudio Cusin. Brooker said his notes state, "Could not locate cellphone."

The Crown contends the officer is mistaken on the date and that it was actually July 9, when Rogers attempted to "ping" the phone three times by sending out signals and all three of the so-called forced registration attempts came back with a roaming error message.

Rogers' records have since been purged, and courts don't normally accept one person's account of a two-person conversation for the truth of its contents. But the defence argues that the conversation meets the exception rule for hearsay because it was an exchange between two professionals performing their duties.

The significance of the issue in the case against Oland has not yet been revealed, but the Crown and defence have reversed positions since the first trial as to when the roaming error occurred.

Crown prosecutor Derek Weaver called the Rogers investigator to testify about his dealings with police. Cusin said he reviewed Rogers' logs in February 2013 and found Brooker had called on July 9, 2011, when the victim's cellphone was pinged three times.

Weaver asked if there was any indication in the logs of any other days the cellphone was pinged.

"I could not find any," replied Cusin.

Weaver showed Cusin a printout of an email exchange he had with Brooker on July 7, 2011, when Brooker asked for the victim's call detail records. There is no mention in the email about the phone being missing or any request to find it, the court heard.

"Was there any pinging at this point?" asked Weaver. "Not that I'm aware of," said Cusin.

Asked whether he pinged the phone on July 7, Cusin replied, "Not to my knowledge."

But during cross-examination, defence lawyer Michael Lacy argued Rogers gets hundreds, if not thousands, of requests from police forces every year, and Cusin wouldn't recollect every time he was contacted about doing a "courtesy ping." Cusin agreed.

Lacy pointed out Cusin wasn't saying it didn't happen on July 7, only that he has no recollection. If Brooker said otherwise, Cusin was "in no position to disagree,"  pressed Lacy. "That's correct."

Delays Crown closing its case

After hearing testimony from Cusin, the judge said he wants the lawyers to submit written briefs on the matter, which "may be a very novel question of law."

The defence will submit its brief by the end of day Friday, and the Crown by end of day Monday. Morrison will then hear further arguments and ask questions of counsel on Feb. 28.

He said he hopes to have a decision ready by March 5. "It may be a novel issue, but it may not be that complex," he said. "I don't know."

The Crown won't be able to close its case until the judge gives his ruling, the court heard.

The defence will then begin presenting its evidence.​

The iPhone is the only item confirmed to have gone missing from the crime scene, but it had been backed up on the victim's office computer as of 4:41 p.m. and nothing incriminating was found.

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On Tuesday, the court watched the videotaped testimony of Joy Kearsey, a DNA expert from the RCMP forensic lab, from Oland's first trial. The Crown and defence agreed to play the video instead of recalling Kearsey as a witness.

She testified that DNA extracted from three bloodstains found on the brown sports jacket Oland wore when he visited his father the night he was killed matched his father's profile.

The rest of Kearsey's testimony will be heard on Thursday, along with the 2015 videotaped testimony of another DNA expert.