Crown’s case against Andrew Berry circumstantial, defence says in closing arguments

With a photo of a critically injured Andrew Berry for backdrop, defence lawyer Kevin McCullough told a B.C. Supreme Court jury that his client’s wounds were not self-inflicted and the Crown had failed to prove they were.

“He didn’t cause those injuries to himself. Somebody else did. And if he didn’t cause those injuries, he didn’t kill those kids, or at least there’s a reasonable doubt about that,” McCullough argued forcefully at Berry’s trial for the second-degree murders of his two young daughters on Christmas Day 2017. Six-year-old Chloe and four-year-old Aubrey were stabbed to death in his Beach Drive apartment. Berry was found naked and injured in the bathtub. The Crown’s theory is that Berry killed the girls, then tried to take his own life.

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An animated, impassioned McCullough told the jury, which has been sitting since mid-April, that he didn’t intend to get personal or offensive when arguing about the Crown’s evidence and the credibility of witnesses in his closing submissions, but would use “language that will not sugarcoat my arguments.”

The Crown’s case is circumstantial, he charged.

“Mr. Berry was found badly injured in a tub shortly before 6 p.m. on Christmas Day and his daughters were found dead. That’s what we know for certain. Everything else is unreliable or completely consistent with Mr. Berry’s evidence,” said the defence lawyer.

The forensic evidence, and the testimony of first responders and medical staff at the hospital, does not prove Berry’s guilt, McCullough said. “All he’s ever done is say he’s not guilty. He gave you a detailed explanation of his innocence and there’s no direct evidence from anybody who saw the girls being killed.”

McCullough challenged the Crown’s theory that the girls were killed in their beds about 8 a.m. on Christmas Day.

He reminded the jury that Oak Bay police Const. Markus Lueder testified that, while guarding the scene, he looked through the blinds into a bedroom and saw blood, blond hair and a body about 3:20 p.m. on Dec. 26.

The trial has also heard that Sarah Cotton, the mother of the two girls, went to the apartment about 2:30 p.m. on Christmas Day with Berry’s mother, looking for the girls, McCullough said. And a defence witness, Graham Bell, testified that he saw two women knocking and looking in the apartment windows.

“They looked in every window. You know they did,” said McCullough. “When they looked in those windows, they didn’t see blood, blond hair and a body. This evidence allows you to know those girls were not in the apartment when Sarah Cotton and Brenda Berry went. … You’re going to be able to say: ‘I have a reasonable doubt the girls were in the apartment at 2:30 p.m. This is evidence you simply can’t ignore.”

Cotton, however, testified that she didn’t look in the bedroom window because she didn’t hear the girls’ voices.

McCullough said Berry’s suicide note was not written on Christmas Day or the days leading up to it.

The note was on the dining-room table, but can’t be identified in the photographs taken by forensic identification officers. There was no blood on the note, McCullough said.

“It is absolutely consistent with what he told you about his suicide attempt in November,” said McCullough, adding that the Crown wants the jury to believe Berry killed the children about 8 a.m. and wandered around the house all day, not touching the suicide note he wrote for his sister.

Berry searched online for suicide methods on Nov. 28, but the search included the term “peaceful,” McCullough said.

“Looking at his injuries could there be a less peaceful and more painful way to die.”

There is an absence of expert evidence on the most important issue of whether Berry’s wounds were self-inflicted, said the defence lawyer.

Dr. Kevin Clarke, the ear, nose and throat specialist who operated on Berry, did not give his opinion on how the injuries were caused and whether they were self-inflicted, despite his expertise and skill, McCullough said.

There was no motive for Berry to kill his children, said the defence lawyer. There is no evidence Berry was ever violent or posed a threat to his children.

“Gentle is how he was described. That’s the one consistent theme. Andrew Berry was gentle, loved his kids, he was a doting, non-violent father.”

McCullough rejected the Crown’s suggestion that Berry killed his daughters because he feared losing parenting time with them.

“In the face of false allegations, Mr. Berry followed the appropriate procedures and got his parenting time back. The motive is pure speculation. It is the most ambiguous evidence. Not once do you hear him being called a bad dad.”

McCullough was critical of the forensic and blood-spatter investigations, noting none of the girls’ blood was found on Berry. If he had stabbed the girls in the manner the Crown said he did, he would have had their blood on him, McCullough said.

The lawyer accused the forensic team of doing a “terrible job,” saying the crime scene was disturbed, and things were moved around. The officers did not look for fingerprints on the baseball bat tangled in Chloe’s hair or the knife used to stab the girls.

McCullough noted that the pathologist did not give an opinion about Chloe and Aubrey’s time of death. Because children have less muscle mass than adults, they go through the process of rigor mortis at a quicker rate.

“The process in this case could be as short as one hour and a half. She said there are no published studies to describe the rate of rigor mortis in children.”

The pathologist also testified that the girls had eaten six to 12 hours before their deaths, which is consistent with Berry’s testimony that they only ate breakfast on Christmas Day and did not have lunch, although they went tobogganing twice.

McCullough told the jury it would be “lunacy” to accept the evidence of neighbour Vallie Travers, who testified that she heard thunderous crashes coming from Berry’s apartment at 8 a.m. on Christmas Day. Although she let Const. Peter Ulanowski into the building, then later gave him contact information for the building manager, Travers never mentioned the noises she heard that shook the whole building.

“That’s unbelievable. That’s preposterous,” said McCullough. “That would be the first thing she’d be saying.”

McCullough also told the jury to be aware that Cotton wants Berry to be convicted and they must evaluate her evidence through that lens.

“Miss Cotton simply loathes Mr. Berry. She loathed him for years. There is nothing that she says that isn’t cast in that lens.”

Jurors have to consider the physical and emotional condition Berry was in when he said “Kill me, Kill me” to first responders coming to his aid and to his sister at the hospital. Berry was despondent, injured and sad and his words can’t be replied upon to prove he killed the girls, McCullough said. Berry had life-threatening injuries and was suffering from a diminished level of consciousness. Anything he said is consistent with being attacked and knowing his children had been killed, said McCullough.

Defence submissions will continue today.\

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