New evidence in Oland retrial relates to men who heard thumping noises coming from victim's office

Dennis Oland'smurder retrial got only a hint Thursday of what new evidence in the7-year-old case brought proceedings to an abrupt halt on Wednesday.

It'srelated totwo men who heard "thumping" noises coming fromRichard Oland'sSaint John office on the night he was killed and whether a subsequent conversation they had might have affected one of the men's recollection.

John Ainsworth and Anthony Shaw, who were working downstairs from Oland'ssecond-floor office at 52 Canterbury St.,bothbelieve the sounds they heardwere from the killing.

But Ainsworth's time estimate supports the Crown's case while Shaw's supports the defence.

Ainsworth, who owns the building and the printing shop downstairs,testified Thursday that he can't pinpoint a time for the "thump" and eight or 10 "rapid fire" noises he heard.

He can only say thatit was sometime between 6 p.m., when his friend Shaw arrived at Printing Plus and 8:11 p.m., when a customer sent a time-stamped fax.

"Everything else is as nebulous as all get out," he said.

Shaw testified earlier in the retrial that his "best guess" for the "really hard crash" and 10 to 15 "quick thumps" was around 7:30 p.m.

The timing is crucial to the case against Olandin the bludgeoning death of his father.The defence hassubmitted atime-stampedsecurity video that shows the accused casually shoppingat a drug storeandcountry marketwith his wife at7:38p.m.in the neighbouring community ofRothesay, about a 15- or 20-minute drive from the city.

When Ainsworthand Shaw spoke to police at the scene on the morning of July 7, 2011, shortly after the victim's body was discovered, they both indicated the noises were at "8ish," according to the officer's notes, the retrial has heard.

Ainsworth told the Court of Queen's Benchhe believed at that time, and when he subsequently went to the police station to give an official statement, that Richard Oland had died of natural causes. He suspected it was a heart attack.

It was only around 3:30 p.m., when someone called him, that he learned it was a homicide.

The revelation had a "dramatic" effect on him, he said. "I realized how much more significant the time element of when the noises were."

"What if anything did you do with this new information?" askedlead Crown prosecutor P.J. Veniot.

"I think Igot a hold of [Shaw] to tell him."

When Veniot asked Ainsworthif he was "able to provide any additional information,"lead defence lawyer Alan Gold asked for Ainsworthto be excused from the courtroom andquestioned the relevance of the Veniot'sline of questioning.

"I was trying to determine whether and perhaps it's not an important question about whether or not that discussion had affected his timeline at all," said Veniot.

Gold objected, stressing the importance of Ainsworth's evidence about time and suggesting he will be cross-examined about prior inconsistent statements.

He said Justice Terrence Morrison should also know that the new disclosure the defence receivedis "regarding supposed conversations between this man andShaw on the occasion the Crown was getting into."

Gold also pointed out the defence did not have the disclosure when Shaw was cross-examined.

"I'm not doing anything other than putting on the record why weare very sensitive to any further stories from this man about conversations that changed his opinion, etcetera, etcetera," he said.

Veniotagreed to move on, buttold the judge the information"in relation toMr.Shaw and Mr. Ainsworthonly came to be" after Shaw's testimony. "It did not even exist for disclosure."

DennisOland, 51, isbeing retried for second-degree murder in his father's death.

The accusedis the last person known to have seen the multimillionaire alive when he visited him at his investment firm officeon the evening of July 6, 2011.

The body of the 69-year-old was found in the office the nextmorning, face down in a pool of blood. He had suffered 45 sharp- and blunt-forceinjuries to his head, neck and hands. No weapon was ever found.

A jury foundOlandguilty 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.

The trial is scheduled to resume Friday at 9 a.m. with the videotaped testimony of two DNA experts from Oland's first trial in 2015.

Ainsworth is expected to be back on the witness stand at 1 p.m. for cross-examination by Gold.

Earlier Thursday, Gold announced the defence team wants the court to visit the crime scene.

"Just to alert the court, the defence is going to seek to have the court take a view of 52 Canterbury," he said.

Photographs of the crime scene "don't do justice to the compactnessof the locationand that may well be a factor that the court has to consider indeciding what happened," said Gold.

The Crown wishes to visit the victim's office before decidingwhether it will contest the defence application, he said.

"I'm just alerting the court thatthat is on our agenda."

The judge said such applications are "notroutinely granted."

"In any event,the application will come and I'll deal with it at that time," said Morrison.

Site visit not evidence

A site visit istechnically not part of the evidence at a trial, but in cases where it would help a judge or jury "appreciate or evaluate the evidence," "it can be appropriate," Olanddefence lawyer Michael Lacy told CBC News.

"There have been a number of cases in Saint John where we understand judges have taken a view in criminal and civil cases," he said.

Court staff were not immediately able to provide any statistics.

The Criminal Code statesa judge "may, where it appears to be in the interests of justice",direct a jury to "have a view of any place, thing or person."

Although the section refers specifically to jury trials, Lacy contends "the law is clear" that it alsoapplies to judge-alone cases.

The defence did not request a site visit during Oland'sfirst judge and jury trial. Lacy said "there's no significance" to not having done so. It "just was not something pursued," he said, adding there are logistical issues with jury trials that make it more difficult to arrange.

Nearby break-in unrelated

The Crown and defence also submitted several agreed statements of fact into evidence on Thursday. One of them involvedabreak and enter near the crime scene that came up in testimony earlier in the retrial. Police were called to 147 Germain St. on July 8, 2011, regarding aglass back door being broken andblood being found in the sink. An old, small "claw hammer" was also found in an open garage, the court had heard.

"The break and enter turned out to have nothing to do with the murder of Richard Oland as it's clear in the [Saint John police] file the break and enter couldnot have occurred prior to July 7," saidKnee, reading the agreed statement aloud.

'Neighbour' cell towers agreement

Another agreement involved the so-called neighbour cell tower sites of the uptown Saint John tower.

Rogers Communications is unable toconfirm whether the Rothesay tower that transmitted the final text message received by the victim's missing iPhoneon July 6, 2011 at 6:44 p.m., around the same time the accused was in that area,was on the neighbour list of the uptown site back then.

However, given thelimited number of towers in the area and the fact no towers have been decommissioned since then, it is "highly likely" the Rothesay tower, known as the Fairvale tower, would have been on the neighbour list of the uptown tower the victim's cellphone had communicated with earlier in the day while he was at his office.

The Crown alleges the victim's phone communicated with the Rothesaytower because the accused took it after he killed his father and headed home. The defence contends the phone could have still been in Saint John and communicated with the Rothesay tower. Neighbour towers can take over during peak volumes or technical problems.

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