Jury set to begin deliberations next week in Andrew Berry trial
Published Wednesday, September 18, 2019 10:23AM PDT
Last Updated Wednesday, September 18, 2019 7:18PM PDT
Jurors in the trial of a Vancouver Island man accused of killing his two young children have now been told by the judge she'll be giving them instructions on Monday. It's the last step before deliberations begin.
Andrew Berry’s second degree murder trial has been going on since April. He’s pleaded not guilty in the deaths of his two daughters, four-year-old Aubrey and six-year-old Chloe. The bodies of the two children were found in their beds at their father’s Victoria apartment on Christmas Day, 2017. The little girls had been stabbed multiple times. A pathologist testified Chloe also suffered blunt force trauma to the head. Berry was found naked and injured in the bathtub.
On Wednesday, Berry’s defence lawyer Kevin McCullough spent a second full day delivering closing arguments to the jury. He told them to reject the evidence of Berry’s sister, who testified as a Crown witness and whose name cannot be reported due to a publication ban.
McCullough told the jury Berry’s sister thought and believed he killed the girls, and had an agenda: to push her brother towards a “mental state” defence and to gather information. He referred to a note Berry’s sister wrote to him in hospital as a “manipulative moral power play” to try to get him to confess.
“Andrew Berry at that point in time was broken, suicidal, he had nothing to live for,” McCullough said. “What’s the one thing that this broken man doesn’t do? Confess.”
While testifying in his own defence, Berry told the court he owed $25,000 to a loan shark named Paul as a result of gambling, and eventually agreed to store bags in his home for Paul and handed over a spare set of house keys at Paul’s request. He testified he was stabbed in his home by an unknown attacker after spending Christmas day sledding with the girls. The crown’s theory is Berry killed his daughters on Christmas morning, and then tried to kill himself, all of which Berry has denied.
“The sad reality is although Mr. Berry did not kill the girls, he may be morally responsible for their deaths, and that is a cross he will always have to bear,” McCullough said.
McCullough also told the jury Berry’s testimony that he felt he was under arrest while in the hospital “was not a figment of his imagination”. McCullough said Berry was told he was being detained under the mental health act, and there was a security guard posted nearby.
“I’m going to suggest to you, you’d think you were detained, and arrested. Who wouldn’t?” McCullough said.
McCullough also referred to testimony from a nurse who told the court she saw Berry mouthing the words “kill me” after surgery. McCullough said Berry had sedatives in his system and has no memory of that.
“I would suggest to you Mr. Berry’s condition at the time was like coming out of a nightmare,” said McCullough.
Berry’s lawyer also spent time focusing on the testimony of the two police officers who were the first to enter the Victoria apartment. McCullough told the jury the first officer on scene left the apartment “unwatched and unguarded” for about five minutes while calling for backup.
“When the crown or anybody else suggests that the killer couldn’t have left during that period of time, they’re merely and purely asking to speculate,” McCullough said.
McCullough told the jury though Berry was “not responsible with his finances”, there is more than one inference that can be drawn from his financial state. The court has heard evidence Berry was behind on his rent and had not paid his hydro bill, resulting in the power being cut off to his apartment. McCullough added though Berry was depressed, he never took anything out on the girls.
“He may have done some very irresponsible things, ultimately, but on a micro level, he cared for those girls and protected them,” McCullough said.
During cross-examination of Berry in August, prosecutor Patrick Weir suggested Berry decided to kill himself because he had “no money, no prospects, lots of debt, a gambling problem, and you knew that the girls were about to be taken away from you”. Berry disagreed with the suggestion. He also disagreed with a suggestion from Weir that he chose Christmas because he knew it would be the “largest psychological blow” he could deliver to the girls' mother Sarah Cotton, with whom he shared custody at the time, and his own parents.
Prosecutors will make their closing arguments to the jury once the defence is finished.