Prosecution alleges nicks on Berry’s neck were self-inflicted ‘hesitation marks’

An Oak Bay man accused of killing his daughters could not explain why he had four small superficial nicks in the flesh of his neck and a major wound to his throat after an alleged attack in his apartment on Christmas Day 2017.

Andrew Berry is on the stand for the fifth day at his trial in B.C. Supreme Court in Vancouver for the second-degree murder of six-year-old Chloe and four-year-old Aubrey. 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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During cross-examination, Berry told Crown prosecutor Patrick 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.

Weir suggested that the stab wound to Berry’s neck was an attempt to kill him.

“You don’t stab somebody with that degree of force in the neck unless you’re trying to kill a person,” Weir said.

Berry agreed.

“I’m going to suggest to you that those little nicks are what’s called ‘hesitation marks’ that were caused by you attempting to stab yourself but not being able to, until you finally get up enough courage to drive that knife into your throat,” Weir said.

“I don’t know how…,” Berry said, his voice trailing off.

“Surely somebody who is stabbing you in the throat with enough force to do the damage they did is not going to come along after the fact and make little slashes or little nicks in your neck,” Weir said.

“I don’t know,” Berry replied.

Weir asked Berry about 16 stab wounds on his upper left chest.

Berry testified that after finding Chloe dead in her bed, he went to the kitchen to find Aubrey and grabbed a knife from the knife block. He said he was lying on the floor and the same man stood over him and stabbed him in the chest. Berry said he lost consciousness after the first stab wound to the chest.

Fifteen of the 16 stab wounds were remarkably similar, about 2.5 centimetres deep, and none were life-threatening, Weir said. They were also so close together that the doctor couldn’t use a stapler and had to sew them together by hand.

“After the first stab, that’s when you lose consciousness again. You’re completely helpless. He can do whatever he wants. He doesn’t stab you again,” Weir said.

The prosecutor suggested that if an attacker had wanted to kill Berry, he could have stabbed him in the neck again. He also suggested that Berry would have woken up when he was being stabbed 15 more times.

Berry testified that the next thing he remembered was waking up in the bathtub. A police office was shining a flashlight at him and pointing a gun at him.

Berry recalled a first responder saying: “This is the guy who killed his kids.”

“Why didn’t you say: ‘What did you mean kids? Is Aubrey dead, too?’ ” Weir asked.

Berry replied that he blacked out.

Weir suggested Berry must have been relieved that police entered his suite to save him from this knife-wielding maniac who killed his children and attacked him.

“Sounds logical,” Berry said.

“You knew police were there because firefighters and paramedics don’t carry guns. So you’re finally safe,” Weir said.

“I don’t know how I was feeling, what I was thinking,” Berry replied.

Berry appeared weary and irritated at Weir’s attempts to probe his version of events in the days leading up to Christmas. The court has heard that Berry’s power had been cut off and he was about to be evicted.

He has testified that he used an electrical outlet in the hallway of his apartment building to boil water to make oatmeal and soup for his daughters. Berry was supposed to return the girls to their mother, Sarah Cotton, at noon on Christmas Day.

“It must have been pretty depressing, Mr. Berry, I suggest, to know that once you dropped the girls off at this house that’s going to be filled with Christmas cheer and presents, you were going to be coming back to your dark apartment and perhaps look forward to potato flakes for dinner. Would you agree with that?” Weir said.

“I’d been that way for a while,” Berry replied.

“And had you been depressed for a while?” asked the prosecutor.

“I was getting better. I was looking forward to getting a job,” Berry said. “I was just more optimistic about life in general.”

Weir asked him what he had to be optimistic about.

“The girls were growing up and they were doing great,” he replied.

Although Berry said he and the girls went swimming for several hours in the afternoon of Christmas Eve, Weir produced an Oak Bay Recreation Centre schedule showing the pool closed at 1:30 p.m. that day.

Berry said he must have taken them swimming on Dec. 23. Defence lawyer Kevin McCullough objected to the new information. When the jury returned, Berry said he did take them swimming that afternoon.

“We were there later than 1:30 p.m. I think they probably closed the gate down and didn’t let anyone else in, but we were there later than 1:30 p.m.,” Berry said.

A video shown to the jury showed the girls in the area outside the centre’s ice rink, putting their jackets and boots in a cubby.

“I’m going to suggest you went to the skating area to go skating and realized the free skating was the next day,” said Weir, noting that in the video, the girls are running around without shoes.

“We didn’t go there to skate,” Berry said, bristling. “I would have brought skates with me. It wasn’t a free skate.”

Berry testified that he didn’t remember if he stopped at Fairway Market on Oak Bay Avenue that day, although the court has seen a video showing him and the girls in the store during daylight hours on Christmas Eve.

Berry testified that he and the girls went to Timeless Toys on Oak Bay Avenue between 4 p.m. and 5 p.m. on Christmas Eve. Weir suggested the toy store closed at 3 p.m. that day.

“That doesn’t sound right,” Berry said.

Weir continued to ask Berry what he and the girls did for dinner on Christmas Eve. Berry testified that he didn’t remember if they ate at home that night or on the way home.

“This was the last day you had with your children, correct?”

“Yes.”

“And you don’t recall what they ate or when they had it.”

“I can’t remember exactly. You’re trying to parse this out in a level of detail I can’t remember,” Berry said.

Weir also asked Berry about a note Chloe wrote to Santa. Berry testified that he thought she wrote the note on the morning of Christmas Eve.

On Christmas Eve, the girls placed the note, a bowl full of bunny crackers and a toothbrush for Santa on their craft table. Weir noted that the crackers were eaten but the toothbrush wasn’t taken out of its plastic wrapping.

“I’m going to suggest you didn’t open that toothbrush because the girls never came out of their room on Christmas morning. Would you agree with that?” Weir asked.

“No,” Berry replied.

Weir asked Berry about photographs taken by police of unopened presents under the Christmas tree. A small blue package was addressed to Chloe from her teacher. A present for Berry from his girls had been purchased by Cotton.

But Berry said he was sending the presents back to Cotton’s home and remembered putting them near the door, where the girls couldn’t see them.

“Sarah was asked not to bring presents,” he said.

Berry said he woke up on Christmas morning when it was still dark and boiled water in the hallway to make oatmeal for the girls. He testified that Chloe went into the living room and he scooped Aubrey up from her bed and carried her down the hall.

Their presents were in stockings, covered with tissue paper, he said. The girls didn’t take their stockings down — they reached into them, he said.

Berry testified that he took the girls tobogganing twice that day. Although he previously told the jury that he walked them down Hampshire Road to the Victoria Golf course, he said he made a mistake about the name of the street. Based on his description, it appears he means Newport Avenue, which is one block from his apartment building.

They played for an hour at the golf course, then walked home. The girls didn’t eat anything, he said.

“As a parent, you’d expect your children to be quite hungry after spending a morning outside in the fresh air,” Weir said.

Berry replied that it was not unusual for them not to eat lunch.

“I asked them if they wanted food and they said no.”

Berry testified that they walked back to the golf course, played for an hour or two, then walked back home, arriving there about 3 or 3:30 p.m.

He said rather than phoning Cotton to say they would be late, he preferred showing up late and asking for forgiveness. The girls got changed in the living room.

“I think the idea was for me to pick up the phone and ask Sarah to get them,” Berry said.

“Is that the plan or are you just making things up as you go along?” Weir asked.

Weir will continue his cross-examination today.

ldickson@timescolonist.com

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