An Oak Bay father’s failure to ask about his two young daughters who were murdered on Christmas Day 2017 should never have been admitted as evidence during his trial, his lawyer said Tuesday.
The Crown put Andrew Berry’s silence forward as evidence of his guilt, Tim Russell told the B.C. Court of Appeal on the second day of a four-day hearing in Vancouver.
In September 2019, Berry was convicted of the second-degree murders of six-year-old Chloe Elizabeth and four-year-old Aubrey Kate, who were stabbed to death in his Beach Drive apartment.
In December 2019, Berry was sentenced to life in prison with no eligibility of parole for 22 years. He immediately appealed his conviction and his sentence. He is seeking a new trial or a reduced period of parole ineligibility.
Berry, who was recovering in hospital from what the Crown called a self-inflicted throat injury, had a right to silence, Russell argued.
“It should have been ruled inadmissible from the get-go,” he said.
Although the trial judge told the jury to put that information out of their minds, prejudice was being built up throughout the trial and was propelling them to a conviction, said Russell.
“The Crown really thought this was probative evidence — if he was really innocent, he wouldn’t be mute,” said Russell. “And any one of those 12 jurors could have had a natural response to that. The jurors might share the same speculative view of human nature.”
Justice Miriam Gropper’s charge to the jury on the issue of Berry’s suicide attempt was “deficient,” said Russell.
Gropper told the jury that even if the suicide attempt was motivated by feelings of guilt, the feeling may have been attributable to something other than the offences. But the jury wasn’t told how to use that evidence, Russell said.
The defence lawyer also suggested there was evidence supporting a charge of manslaughter. Berry was in the throes of a mental-health crisis and had no motive or intention of ever killing his girls, said Russell. In a suicide note found on a coffee table, Berry asked his sister to take care of the girls.
A suicide attempt is a sign of a diminished mental state and the judge did not tell the jury to take his condition into account, said Russell.
The judge also erred when she told the jury to disregard defence evidence of third-party suspects, he said. She told them to disregard an unsolved knife attack that had taken place six months earlier on the Esplanade by Willows Beach.
The judge also refused to let the defence put the girls’ mother, Sarah Cotton, forward as a third-party suspect.
The hearing is scheduled to continue today.
