Warning: Disturbing Content
The defence lawyer for a Vancouver Island man accused of killing his two young daughters is now making final submissions to the jury in Andrew Berry's second-degree murder trial, arguing the Crown has not proven his client's guilt beyond a reasonable doubt.
Lawyer Kevin McCullough repeatedly reminded the jury the benefit of the doubt goes to Berry, and the burden of proof is on the Crown, saying: "It's not good enough to call him a liar and then do nothing to prove it."
Berry has pleaded not guilty in the deaths of his two daughters, four year-old Aubrey and six year-old Chloe. The sisters were found dead in their beds at their father's apartment on Christmas Day in 2017, after they were not returned to their mother's custody as scheduled. Both children had been stabbed multiple times.
Berry was found naked and injured in the bathtub. He has testified he was stabbed by an unknown attacker after going out sledding with the girls. The Crown's theory is Berry killed his children and then tried to kill himself, all of which Berry has denied.
McCullough told the jury there is no expert evidence that the wounds on Berry's throat and chest were self-inflicted
"If he didn't cause those injuries, he didn't kill those kids, or at least, you have reasonable doubt about that," McCullough said.
McCullough also criticized parts of the investigation into what happened in the apartment.
"The forensics team here did a terrible job," he said, and suggested a police officer who testified as a bloodstain-pattern analyst was inexperienced and exhausted at the time.
"She struggled because the scene was too much for her," McCullough said.
McCullough told the jury no fingerprint analysis was done of a bat and knife found in Berry's home, suggesting the number of swabs that was taken does not allow them to conclude there was no one else's blood in the home, based on the overall amount of blood in the apartment.
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 spare house keys at Paul's request. McCullough told the jury though Berry's life may have involved gambling, and not paying his rent or hydro bill, "it doesn't make him a killer."
McCullough also referred to testimony from another police officer who told the court he saw "blood, blonde hair, and a body" when looking through the blinds of Berry's suite on December 26th. He pointed out a neighbour later testified in the trial he saw two women knocking and looking in windows at Berry's building on the afternoon of December 25th. In July, the girls' mother, Sarah Cotton, had testified she and Berry's mother went to his building after the girls were not returned and knocked at windows, but did not try to look inside. Cotton testified there was no light or sound coming from the unit.
McCullough told the jury if the girls weren't in the apartment that afternoon, it creates a problem for the Crown's theory they were killed in the morning.
"This is evidence that you simply cannot ignore," McCullough said.
He also took aim at the prosecution's theory that Berry killed his children because he faced losing parenting time.
"The motive is pure speculation," McCullough said. "It is the most ambiguous evidence." He told the jury the witnesses who knew Berry testified he loved his kids and was a doting father.
"Not one time do you hear about Mr. Berry being a bad dad. Not once," McCullough said.
"The Crown's case here is completely circumstantial."
The defence's closing arguments will continue Wednesday. Once they conclude, the Crown will get a chance to address the jury before deliberations begin.
Follow the trial live through tweets from Maria Weisgarber in court, or scroll back through past coverage: