Lawyer for Andrew Berry argues jury heard evidence they shouldn’t have during appeal

On the first day of the appeal of Andrew Berry’s guilty verdict for the murder of his two young daughters, his lawyer argued the jury heard evidence it shouldn’t have.

Berry’s lawyer, Timothy Russell, argued the judge failed to hold a voir dire for some of the evidence, which according to B.C.’s Ministry of Public Safety and Solicitor General, is a hearing without jury present to determine the admissibility of evidence.

As a result, the jury heard three pieces of evidence Russell argued were inadmissible.

The first piece of evidence was Berry saying “leave me alone, kill me” when paramedics and firefighters first found him. Russell argued these comments required more context, including who Berry thought he was talking to and their potential power of authority that could influence a confessional statement.

The second piece of evidence was when Berry was waking from surgery and reportedly mouthed the words “kill me” to a nurse. Berry’s lawyer says she was in a position of medical power and therefore unable to receive a reliable confession.

The third piece of evidence was the handwritten notes between Berry and his sister, who is an RCMP officer. The trial judge treated her role as a police officer and her relationship with Berry as mutually exclusive. Berry’s lawyer called that a palpable and overriding error because of the risk of potential abuse of power, like using familial emotional triggers not accessible even to police, to get someone to speak or possibly confess.

Later in the day, Russell argued that when Berry was in the hospital receiving treatment for his own injuries, the police didn’t adequately advise him of his right to silence, and therefore anything that was said during that time should have been inadmissible.

These were the arguments made on the first of four scheduled court days.

Berry was found guilty of the murder of his two daughters, six-year-old Chloe and four-year-old Aubrey on Christmas Day 2017.

The following contains graphic details that some readers may find distressing.

B.C. Supreme Court Justice Miriam Gropper in December 201 said Berry had committed ‘heinous crimes against his daughters’.

“The girls were killed in their own beds, in their own home, where they had every expectation to be safe,” Gropper said in her decision.

The trial heard each girl had been stabbed dozens of times and Berry was found naked and unconscious in the bathtub of his Oak Bay apartment suffering from stab wounds to his neck and throat.

With files from Kori Sidaway.

Editor’s note: The comments on this story have been turned off due to the sensitive nature of the court case.

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