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UNB legal expert comments on Oland case

Author: Communications

Posted on Oct 28, 2013

Category: myUNB , UNB Saint John , UNB Fredericton

Legal expert Nicole O'Byrne, assistant professor in the University of New Brunswick's faculty of law, weighed in on the current state of evidence in the Oland case in a recent media story.

The circumstantial evidence that the prosecution is using to build its case is not out of the ordinary, according to O'Byrne. "Generally in criminal cases you don't have a whole line up of direct evidence pointing to a smoking gun," O'Byrne said in an interview with the Telegraph Journal's Chris Morris.

In addition to criminal law, O’Byrne specializes in federalism, Aboriginal law and natural resource policy.

See the full story below.

Complex case revealed in Oland documents
CHRIS MORRIS
Telegraph Journal
Legislature Bureau
Mon, 28 Oct 2013

SAINT JOHN – Information contained in search warrants and other material connected to the Richard Oland homicide investigation offers a rare glimpse into the process of trying to build a case on a largely circumstantial foundation.

As each court decision over the past two years has revealed more details of the police investigation into the 2011 killing of Oland in his Saint John office, the public has had a unique opportunity to follow how investigators have pieced together what happened in the days and hours surrounding the crime.

Legal experts say it doesn’t matter if most or all of the evidence in a case is circumstantial, which means making conclusions of fact based on inferences. The question is: do all of the statements, observations, beliefs and forensic facts add up to evidence of a crime that can be proved beyond a reasonable doubt?

“Evidence is evidence,” said Halifax-based lawyer David Coles, who represented the Telegraph- Journal and the CBC in the lengthy legal battle for the release of information from sealed warrants.

“The question for a jury or a judge is, ‘Has the Crown proved whatever its case is beyond a reasonable doubt?’ That question exists in this case like it exists in any other case. I hasten to point out that what is now public is some of the information contained in various search warrants and production orders. We do not know what else police may or may not have in their investigation.”

Additional details released last week include the forensic discovery of Richard Oland’s blood on a jacket owned by his son, Dennis Oland, and seized by police in the days following the homicide.

Dennis Oland, a 45-year-old stockbroker, has been identified by police as their prime suspect – the most startling information released to the public in the process of unsealing the warrants and production orders.

While blood on a jacket in itself may mean little, Nicole O’Byrne, a professor specializing in evidence at the University of New Brunswick law school, said the process of building a case involves examining supporting information related to what may or not be an important clue.

“Generally in criminal cases you don’t have a whole line up of direct evidence pointing to a smoking gun,” O’Byrne said in an interview.

“You are generally putting together a story piece by piece and bit by bit . . . This piece of evidence points to an inference, added to another piece of evidence that corroborates that inference. So it builds. The distinction between direct and circumstantial is not really important anymore. What is important is getting as much reliable evidence into the mix for the judge or jury to consider.”

Investigators say the brown jacket with blood on it is one of their most important pieces of evidence.

Also released in the documents is the information that Dennis Oland told police he wasn’t wearing a brown jacket on July 6, 2011 – the day his father was murdered. Oland told police he was wearing a navy jacket.

However, police investigators state in the released documents they have video and eyewitness accounts that he was wearing a brown jacket on that day.

Karla O’Regan, a professor of criminology at St. Thomas University, said most evidence in criminal cases is circumstantial.

“Most of the time, evidence gathered by police and assembled by lawyers is about the circumstances surrounding an offence,” said O’Regan, who is also a lawyer.

“So even an eyewitness who says, ‘I saw him down on the wharf’ or ‘This is what he was wearing when he came in’ – even though it is eyewitness testimony that was given directly, it still pertains to a circumstance that surrounds the offence. So all evidence is circumstantial in that respect. Your bloody weapons and direct confessions – those are different.”

Information about any weapon or weapons involved in the Oland slaying has not been made public and there is no indication of any confession in this case.

No charges have been laid and none of the assertions in the documents has been proven in court.

O’Regan said even if investigators have not found the weapon used in a crime, that is not an insurmountable problem for police and prosecutors.

“You rely on other things – what the coroner tells you, what the forensics tell you, what kind of an object it might have been,” she said.

“A case has to be proved beyond a reasonable doubt. It’s a high threshold but you can get there without a murder weapon.”

O’Byrne said the meticulous building process may explain why the Oland investigation has gone on so long.

“You have to test all the pieces of evidence to see how reliable they are,” she said.

“It’s like you are building a house of cards. If one piece of evidence takes you to 10 other pieces of evidence but then that original piece of evidence is subsequently proven to be unreliable, you have to test all of the other evidence that you built your case on, again . . . It is always about testing and corroborating all these different pieces of evidence to build as solid a case as possible and in some cases, arguably the Oland case is one of them, police are trying to be very careful about how they build their case.”