A B.C. Supreme Court jury is deliberating the fate of an Oak Bay man accused of murdering his two young daughters on Christmas Day 2017.
Andrew Berry has pleaded not guilty to the second-degree murders of six-year-old Chloe and four-year-old Aubrey in his Beach Drive apartment.
The nine-man, three-woman jury began their deliberations at 2:30 p.m. Tuesday and continued until 6 p.m.
They will resume their deliberations this morning at 9:30 a.m.
The issues the jury must decide include whether the Crown has proved beyond a reasonable doubt that Berry is the person who killed Chloe and Aubrey. If they decide he did, the next question is did he intend to kill them.
If the jury is not satisfied that Berry intended to kill Chloe and Aubrey, they must find him guilty of the included offence of manslaughter, Justice Miriam Gropper told the jury in her final instructions.
If they have a reasonable doubt he killed the girls, they must acquit.
The jury, which has been sitting since mid-April, is now sequestered. Its decision must be unanimous.
The last time Chloe and Aubrey were seen alive by witnesses, they were playing in the snow about 11 p.m. on Christmas Eve. The next evening, first responders entered Berry’s dark apartment and, with beams from their flashlights, saw blood on the door and on the walls. Chloe, still in her pyjamas, was lying dead on her bed. Aubrey was lying on her bed in another bedroom. Like her sister, she was in her pyjamas. A knife was on the floor by her bed.
Berry was found naked in the bathtub, close to death. He had stab wounds to the upper left chest and his neck and throat.
“Kill me” and “Leave me alone,” he said to the firefighters and paramedics trying to save his life.
During final submissions, the Crown argued that by Dec. 24, life had become hopeless and unbearable for Berry. He had no money, no prospects, a great deal of debt and a gambling problem, and he knew that the girls were about to be taken away from him because he couldn’t afford to feed them or pay for electricity.
The Crown believes Berry was planning to kill himself — not the two girls — but he lost his temper with his six-year-old, hit her on the head with a baseball bat and realized there was no turning back. He stabbed Chloe repeatedly, then did the same to Aubrey, who was still asleep. Then he tried to kill himself.
Berry denied killing his daughters or trying to commit suicide on Christmas Day. He testified that he had fallen deeper and deeper into debt with an Asian loan shark named Paul in 2017. He told the jury that he borrowed $10,000 from Paul at the River Rock casino in Richmond in January 2017 and could not pay it back. He said a rock was thrown through his window and two young Chinese men came to his apartment looking for Paul’s money. They stored drugs in his apartment and took his spare key, he said.
Berry testified that he was tackled and stabbed when he and the girls returned home from a tobogganing trip on Christmas Day.
When he regained consciousness, he said, he found Chloe dead in her bed.
The judge also told the jury she had determined that evidence introduced by the defence related to a machete attack by Willows Beach in Oak Bay is of no probative value and should not be given any weight.
“This is because there’s no connection between that attack and the murders of Chloe and Aubrey Berry,” Gropper said.
The jury has also heard evidence suggesting that the police investigation was inadequate, Gropper said. “I have determined that evidence is of no probative value and you should not give it any weight. You may consider and assess the police investigation that you did hear about, including the investigation and the forensic analysis of the suite.”
The jury has heard that Chloe was in Grade 1 at Christ Church Cathedral School and Aubrey, who would have turned five in January 2018, attended a Montessori preschool. The girls lived parttime with their mother, Sarah Cotton, in a house in Oak Bay, and with their father in his nearby apartment.
Although the trial was moved to the Vancouver Law Courts to ensure Berry’s rights to a fair trial, members of the public have been able to watch it by video at the Victoria Courthouse.
Local media has been present for most of the trial. Friends and relatives of the girls’ mother, as well as Cotton herself, have come to watch the proceedings. Witnesses, court staff, police officers, Crown and defence lawyers and people close to the girls have also come to watch the proceedings.
ldickson@timescolonist.com
