Dennis Oland testifying in his own defence 'not that unusual'

Dennis Oland is expected to testify in his own defence at his murder trial in Saint John later this week, in a move the president of the Criminal Lawyers' Association says is "not that unusual" in Canada, but has possible pitfalls.

"It happens frequently," Anthony Moustacalis said to CBC News.

"It all depends on the circumstances, but from my point of view — and I've done, I don't know, over 50 jury trials, I've lost count – but juries in my view tend to want to hear what the person charged has to say, especially in a murder case."

Oland is charged with second-degree murder in the 2011 death of his father, prominent New Brunswick businessman Richard Oland.

The body of the 69-year-old multimillionaire was discovered in his investment firm office on July 7, 2011. He had suffered 45 sharp and blunt force injuries to his head, neck and hands.

Dennis Oland, 47, the last known person to have seen his father alive, during a meeting at his office the night before, has pleaded not guilty and is standing trial before a judge and jury in the Court of Queen's Bench.

The Crown has suggested money and his father's longtime extramarital affair as possible motives.

Carries risks

Moustacalis, who is based in Toronto, said he's not familiar with all of the specifics of the Oland case, but deciding whether to have an accused testify can be "very difficult," given the potential pitfalls.

For example, testifying can be stressful and an accused may not "come across well."

"I mean it's hard to judge someone's entire believability based on a few hours or days on the witness stand," said Moustacalis.

In addition, the accused runs the risk of filling in any gaps in the Crown's case against him or her, he said.

However, it may be important to have the accused explain his or her actions, said Moustacalis, noting a murder charge has two essential elements — the physical act and the intent.

A Toronto police officer, who is on trial for second-degree murder and attempted murder in the 2013 shooting death of a teenager on a streetcar, is testifying in his own defence even though the incident was captured on video.

Videos and audio played at the trial of Const. James Forcillo show he arrived on the scene, yelled repeatedly at Sammy Yatim, 18, to "drop the knife," then opened fire after a 50-second confrontation. Eight of nine bullets struck the teen.

"You might say, 'Well what could [Forcillo] add?' Well what he can add is his perspective as to why he did or didn't do certain things, even though there's almost a complete videographic record of the event," said Moustacalis.

May need to explain, clarify statement

Even in cases where an accused has already given a statement to police, he or she may need to take the witness box, he said.

"He may need to explain further circumstances that have developed since that interview that he may not have been aware of, or that require explanation or clarification because you have to remember when a person is first interviewed by police, they don't know all of the evidence against them, or what issues arise from that evidence," he said.

"And as a result, they're in a better position to answer the charge after the formalities of the trial process have been gone through."

Dennis Oland told police during a voluntary videotaped statement on July 7, 2011, that he left his father's office around 6:30 p.m. the night before.

He said he was wearing a navy blazer during the visit, but video surveillance of him earlier that day shows he was wearing a brown jacket and the victim's secretary also testified to seeing the accused in a brown jacket.

A week later, police seized a blood-stained brown sports jacket from his bedroom closet that had DNA on it matching his father's profile.

'Character' may become issue

Having an accused testify enables the defence to call evidence about his or her character, said Moustacalis.

"In other words you can say … 'Not only should you believe me because I say I didn't do it, but also because … my reputation in the community for honesty and integrity and peacefulness is such that I would be unlikely to do this.'"

On the other hand, that also enables the Crown to question the accused about any examples of bad behaviour, if any exist, said Moustacalis.

But the prosecution would have to disclose to the defence any examples of bad behaviour it intends to raise. "So you can cut the loss of that aspect to it."

Oland's mother, sister, wife, uncle and a friend will also be called to testify on his behalf, the court has heard.

Moustacalis says that's not surprising. They may have evidence about the day in question, the alleged motives and Oland's character, he said.

The trial, which started on Sept. 16, is scheduled to run until Dec. 18, making it one of the longest criminal trials in New Brunswick history.