Crown argues ‘staggering’ case against Andrew Berry meant conviction was inevitable

Crown prosecutors argued on the fourth and final day of Andrew Berry’s appeal to his double second-degree murder conviction that the evidence against him was staggering, and a conviction would have been inevitable.

After a six-month-long trial, a jury convicted Berry in 2019 of second-degree murder for stabbing his two daughters, six-year-old Chloe and four-year-old Aubrey to death in his Oak Bay apartment on Christmas Day, 2017.

Berry was sentenced to life in prison with no eligibility for parole for 22 years. He is in the midst of an appeal to both his conviction and sentence, seeking a new trial or a reduced period before parole eligibility.

Thursday morning Crown prosecutor Christie Lusk began her arguments today by saying that Crown brought up Berry’s silence in not asking about his daughters in trial closing arguments, not as evidence of guilt — a reason not permitted by the judge — but a lack of credibility.

“This is not a case where you simply remain silent. This is a case where an accused chose to speak and said one thing and not another,” said Lusk to three appeal court justices in Vancouver.

Lusk went on to argue though, that the trial judge Miriam Gropper did, in fact, make a mistake. According to Lusk, her error was that the jury should have heard arguments that his silence was in fact a sign of guilt.

“He doesn’t ask that they’re dead, he knows that they’re dead,” said Lusk.

Lusk went on to argue Berry’s lack of shock, surprise, or outrage while in hospital, the fact that he didn’t refute his attempted suicide or his detainment under the mental health act, how he didn’t ask how his daughters were doing or refute killing of his daughters, is more consistent with him being the perpetrator, not being attacked as he alleged.

“Failure to make an expression is an admission of guilt,” said Lusk.

But regardless of all those points, that’s not what crown prosecutors are really in court to argue.

“An appeal is not a new trial. The judges hearing an appeal are not deciding what they would have done. They’re reviewing what was done at the trial to determine if there was an error,” said criminal lawyer Michael Mulligan. “If the court of appeal could conclude that the mistake could not have had any impact on the outcome, an appeal might not still be ordered.”

The crux of the Crown’s argument was brought later in the day, that regardless of the admissibility of any of Berry’s statements, they were harmless, that the blood spatter, Berry’s inconsistent testimony, and other evidence, led to an overwhelming case where according to Luska, “a conviction was inevitable.”

At this point, it’s up to the three appeal court justices to now decide if the trial judge made mistakes and if those errors impacted the outcome.

The justices have reserved judgement for a later date. It’s not known how long that decision might take.

If the appeal is denied, it’s not necessarily the end of the road. Berry’s lawyer can apply to be heard at the Supreme Court of Canada.

Editorial Policies Report an Error