Court File No: IN THE COURT OF APPEAL OF NEW BRUNSWICK File itc' CA. -l No. du dossier BETWEEN: Date of Date d??rnission DENNIS JAMES OLAND APPELLANT ?and? HER MAJESTY THE QUEEN RESPONDENT NOTICE OF APPEAL (FORM 63B) 1. Appellant: Dennis James Oland 2. Date of Conviction: December 19, 2015 3. Name of Court: Court of Queen?s Bench 4. Name of Judge: Justice John J. Walsh sitting with a jury 5. The Appellant was charged that he did: On or about July 2011, at the City of Saint John, County of Saint John, Province of New Brunswick, commit second degree murder on the person of Richard Oland, contrary to the provisions of Section 235(1) of the Criminal Code of Canada and amendments thereto. 6. Plea: Not Guilty . Sentence: Dennis James Oland is to be sentenced on February 11, 2016. (The jury unanimously recommended the minimum period of 10 years parole ineligibility.) . The lawyers at trial: For the Crown: P. J. Veniot, Q.C., Patrick Wilbur, and Derek Weaver For the Accused: Gary A Miller, Q.C., Alan D. Gold, and James R. McConnell . The Appellant appeals against his conviction on grounds of appeal that involve a question of law alone or applies for leave to appeal against his conviction on grounds of appeal that involve a question of fact or a question of mixed law and fact and, if leave is granted, appeals against his conviction. . The Appellant will ask this Honourable Court to allow the appeal, quash the conviction and direct a verdict of acquittal to be entered or, in the alternative, order a new trial. . The grounds of appeal are: Unreasonable Verdict and Misdirection or Non-Direction a. The verdict of guilty of second degree murder was an unreasonable verdict in law and not one that a reasonable jury, properly instructed, could judicially have arrived at; b. The learned Trial Judge erred in his jury instructions regarding the evidence of Anthony Shaw and undermined the accompanying WD. instruction by specifically characterizing the evidence of Richard Oland?s non-response to cell phone and text communications as "inconsistent" with Mr. Shaw's evidence, when in fact it was not "inconsistent" unless one fallaciously 'begged the question' and assumed such non-response was due to Richard Oland in fact being dead at the time of the non?response; c. The learned Trial Judge erred in concluding that evidence of the Appellant's mistaken statement regarding the colour of his jacket worn on July 6, 2011 and the fact that clothing, including the jacket, was dry -3- cleaned, were events capable in law of amounting to "after?the?fact conduct"; d. The. learned Trial Judge misdirected the jury regarding the necessary findings they had to make to use the after-the-fact conduct as inculpatory evidence; e. (1) In his jury address Crown counsel engaged in speculation regarding an alleged spontaneous argument between the Appellant and Richard Oland supposedly because of the Appellant's "dire state" of "financial desperation" "beyond financial hardship" leaving him with "no place else to turn" leading to a request for money from Richard Oland which Richard Oland refused to give, or Richard Oland's affair with Diana Sedlacek "weighing on the Dennis Oland?s mind over a year and a half", or some combination thereof, notwithstanding a complete absence of any evidence in support of such extravagant claims and without any such allegation being put to the Appellant during his cross?examination; and (2) The learned Trial Judge erred in: i. failing to give a Browne v. Dunn instruction to the jury regarding the Crown's failure to cross?examine the Appellant on this issue; ii. failing to give effect to the defence objection to these arguments by Crown counsel and in failing to instruct the jury that there was no evidence to support the Crown's speculative arguments; and expressly instructing the jury on the Crown's speculative argument despite the lack of any evidence in support and it is further respectfully submitted that this compounded the error; f. The learned Trial Judge erred in: i. not giving a Browne v. Dunn instruction to the jury regarding the Crown's failure to cross?examine the Appellant on the allegation that the Appellant was lying about the reason for his third attendance at Richard Oland's office; namely to pick up the camp logbook, Exhibit D3, which he had forgotten; -4- ii. misdirecting the jury on putative contradictions in the Appellant's testimony in support of this allegation; and condoning and supporting the Crown's speculative argument in his charge to the jury; (1) In his jury address Crown counsel engaged in speculation that the Appellant had not been truthful regarding the reason why he attended at the Renforth Wharf without any such challenge being put to the Appellant during his cross?examination; and (2) The learned Trial Judge erred in: i. failing to give a Browne v. Dunn instruction to the jury regarding the Crown's failure to cross?examine the Appellant on this issue; and ii. failing to instruct the jury that there was no evidence to support the Crown's speculative arguments that the Appellant was not being truthful. The learned Trial Judge erred by using language in the charge which placed an evidentiary burden on the Appellant to establish exculpatory inferences with regard to various items of evidence, thereby undermining the presumption of innocence; The learned Trial Judge misdirected the jury regarding the evidence of a Crown witness, Jiri Sedlacek, in that he failed to set out its exculpatory relevance for the defence; It is respectfully submitted that the cumulative effect of the errors in paras. b. to i. above; and a review of the uncontested evidence in this case, supports the Appellant's submission that the verdict is unreasonable and that the Appellant's conviction constitutes a miscarriage of justice; Inadmissible Evidence The learned Trial Judge erred in admitting "call detail records" relating to Richard Oland's iPhone and, in particular, a specific entry as to the alleged cell tower implicated by a particular transmission at 6:44 pm. on July 6, 2011 and a separate record regarding the address of that cell tower, -5- pursuant to an exception to the hearsay rule, and further the probative value of this evidence was outweighed by its prejudicial effect; l. The learned Trial Judge erred in admitting the opinion evidence of Joseph Sadoun with respect to Richard Oland's iPhone location at 6:44 pm. on July 6, 2011; m. The learned Trial Judge erred in admitting evidence derived from forensic testing of a brown jacket seized pursuant to a search warrant obtained for the search of the Appellant's residential property and executed on July 14, 2011 in that: i. the forensic testing was not authorized by the search warrant for a search of the residence for the jacket, and therefore a further warrant authorizing a search of the jacket for trace evidence was required; ii. the forensic testing violated the express terms of judicial orders governing the jacket?s detention after seizure; and therefore the forensic testing was performed in violation of the Appellant's section 8 Charter right against unreasonable search or seizure, and all direct and derivative evidence from this testing should have been excluded pursuant to section 24(2) of the Charter. n. The learned Trial Judge erred in rejecting the claim of spousal privilege in relation to a text message purportedly sent by the Appellant to his wife, Lisa Oland, on May 31, 2011; two purported email exchanges between them on June 1, 2011; and one email purportedly sent by the Appellant to her on June 16, 2011; 0. Such other grounds that may arise and which counsel may advise. 12.The Appellant?s address for service is: Gary A. Miller QC. Gary A. Miller ProfeSsional Corporation 168 Woodbine Lane Upper New Brunswick E3E 183 DATED at Upper New Brunswick, this 20?h day of January, 2016. Gary A. .0. Alan D. Go James R. McConnell Counsel for the Appellant Gary A. Miller Professional Corporation 168 Woodbine Lane Upper New Brunswick E3E 183 Telephone: (506) 363-5390 Facsimile: (506) 363-2110 garyamiller. gampc@gmail. com