Oak Bay man feared ex-wife would keep girls amid desperate state: Crown

Jury at Andrew Berry's murder trial told to disregard question about ‘hesitation marks’

An Oak Bay man accused of killing his two young daughters was afraid his ex-wife would get a court order and keep the girls until there was a change in his desperate situation, the Crown charged Wednesday in B.C. Supreme Court.

Andrew Berry is on trial for the second-degree murder of six-year-old Chloe and four-year-old Aubrey on Christmas Day 2017. The two young girls were stabbed to death in Berry’s Beach Drive apartment. Berry, 45, was found naked and injured in the bathtub. He has pleaded not guilty to the crimes.

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Berry, 45, was on the stand Wednesday for the sixth day at the Law Courts in Vancouver.

During rigorous cross-examination, Crown prosecutor Patrick Weir suggested to Berry that as of midnight on Dec. 24, 2017, he had a terrible relationship with ex-wife Sarah Cotton, despised his mother, had no job and no prospect of getting one, owed a lot of people a lot of money, didn’t have enough money to buy his children proper food, had no power in his apartment and was about to be evicted.

“And you had to return those kids to Sarah at noon on Dec. 25, did you not?”

“Yeah,” Berry replied.

“And you knew that Sarah would not hesitate in protecting those kids by not getting them back to you while you were in that situation, correct?” Weir asked.

“Right. So until I get my hydro turned on, I’m in trouble. In trouble, in the sense that Sarah’s going to ask me to go to my sister’s with the girls or make some other arrangements,” Berry testified calmly.

“Or she’s going to say: ‘Listen. You have no job, no money. You have no hydro. You’re about to get evicted. These girls aren’t coming back to you. You feed them potato flakes and ramen. These girls are not coming back to you until all that changes and a court orders it.’ That’s what you fear,” Weir said.

Berry testified that he would have a week to fix his hydro and bring in good food for the girls.

“By the time this court process could happen, I would be OK.”

Berry testified that even though he hadn’t paid a hydro bill in six months, he was surprised when his power was cut off because he hadn’t been reading his mail. He also testified that Cotton had known all along about the hydro because they had talked about it.

But Weir said it was clear Cotton didn’t know the hydro had been cut off. “And you knew that when you turned those girls over on Dec. 25, there was a strong likelihood you wouldn’t get them back any time soon.”

“Not until I turned the hydro on,” Berry agreed.

Weir grilled Berry about the money he owed his landlord. Berry testified that even though he received an eviction notice when he owed $2,400 in rent on Dec. 1, he wasn’t worried about being evicted.

“It’s just a step in the process of getting rent. I know when I’m $3,600 overdue, that’s when things start to get serious,” said Berry, adding he and the landlord had played that game for years.

The difference this time, noted Weir, was that Berry had no resources.

Berry disagreed, saying he had $20,000 in stock options in a pension fund that he could cash in January 2018.

He also disagreed with Weir’s suggestion that he and Cotton had a terrible relationship. It wasn’t wonderful, Berry testified, but it was getting better. Berry also said he felt comfortable that he could get a job if he needed one.

When court began Wednesday, B.C. Supreme Court Justice Miriam Gropper told the jury to disregard a question by Weir that referred to “hesitation marks” on Berry’s neck.

“I remind you that questions are not part of the evidence and ask you to disregard that particular statement,” Gropper said.

Berry could not explain why he had four small superficial nicks in the flesh of his neck, along with a major wound to his throat, after an alleged attack in his apartment.

Berry told Weir that he remembered being stabbed once in the neck, then losing consciousness after being attacked by a dark-skinned, dark-haired man who tackled him in his bedroom.

After Gropper’s ruling, Weir continued to press Berry about the smaller wounds on his neck.

Berry insisted that he remembered only the big stab wound in the middle of his throat.

“So you can’t say whether those little marks were caused before or after that stab to your neck?” Weir asked.

“The only one I felt was the one in the middle,” Berry replied.

Weir suggested Berry had inflicted the smaller nicks on himself.

“I suggest when you initially tried to stab yourself in the neck, you tried to do so several times and couldn’t do it at that particular moment,” the prosecutor said.

Berry disagreed.

Berry was also questioned about his dealings with psychiatrist Amanda Pitcher at Victoria General Hospital. Berry has testified that when Pitcher came to speak with him, she asked if he had tried to commit suicide.

Berry told her he had, but clarified that he was referring to an earlier attempt in November 2017. Berry denied trying to take his own life on Dec. 25, 2017.

“You didn’t think she was referring to the knife marks on your chest?” Weir asked.

“I just answered the question,” Berry said.

Berry also complained that during his time in hospital, everybody treated him as though he had just killed his children and had tried to kill himself.

“I was at risk for self-harm and suicide,” Berry said.

“That made you feel pretty rotten and you just wanted to die,” Weir said.

“The whole, I, yeah, the whole, everything ….” Berry stammered.

Weir asked Berry if anybody was rough with him in hospital. Berry said he experienced pain but did not know if the medical staff inflicted gratuitous pain on him.

“I would get a tube stuffed into my lung … and that hurt.”

Weir asked him what it meant to be treated like a father who had just killed two little girls.

“You’re not allowed to leave the hospital. You’re being detained under the Mental Health Act. You’re handcuffed to the bed …,” Berry said.

“There was just nothing. It was so obvious.”

Berry downplayed his relationship with his sister, who is an RCMP officer. The jury has heard that his sister gave him advice about his relationship with Sarah, let him stay with her on weekends, paid for some groceries, put his pension in her bank account and visited him both in hospital and in jail.

His sister, whose first name is protected by a court order, also called the mental-health team and rushed to Victoria to find him when she found out he quit his job.

Berry testified that his sister texted him a lot, but he didn’t want her to because his phone plan only allowed him 20 texts a month. He suggested if his sister had really cared, she would have picked up the phone and called him.

Berry said his sister acted like a police officer. He said it was clear when she visited him for the first time in hospital that she thought he had killed Chloe and Aubrey. He testified that she would not hug him and wrote: “This will likely be the last time you see me. Tell me what you need me to know.”

Weir noted that Berry’s first written response to his sister was: “I love you. I’m sorry.”

Weir asked Berry what he was sorry for.

“For her wanting to leave, for this being the last time she wanted to see me,” Berry replied.

Weir suggested Berry could have told his sister that he was attacked and that somebody had killed Chloe and Aubrey.

“You can say: ‘Help me find this dark-skinned man who stabbed me in the throat,’ ” Weir said. “You are lying there, accused of literally the worst thing a father can be accused of and then trying to commit suicide and you’re not trying to convey to your sister: ‘Hey it wasn’t me and we can prove it together.’ ”

“I can’t talk, remember that,” Berry told Weir. “And I’m just writing, right then and there. I just don’t know. I don’t know how to answer that.”

Weir suggested Berry wrote to his sister “I have no idea what to say” because there is no explanation for why he killed the girls.

Berry disagreed.

Weir pressed him to explain why he didn’t tell his sister that it was a horrible misunderstanding.

“I think I’m just flabbergasted,” Berry said. “I’m not sure what to do or say.”


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