Prosecutors say Andrew Berry’s defence blames judge for own failures

WARNING: This story contains disturbing details about a double murder, mentions of suicide

Crown prosecutors came out strong Wednesday, stating that the arguments Andrew Berry’s lawyer has presented so far are simply complaints – not legal reasons to order a new trial.

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.

Crown’s submission Wednesday began with respect to Berry’s lawyer Tim Russel’s assertions that the trial judge made a mistake in her assessment on whether first responders, nurses and Berry’s RCMP sister were in a position of authority when Berry made his key statements of “kill me” to them – a distinction which would have affected that statement’s credibility.

Prosecutors argued the judge reviewed the evidence, surrounding circumstances, and properly assessed that all three people didn’t play a role in the investigation that they hadn’t been acting in concert with police, therefore the “kill me” statements were properly admitted as evidence.

“Even if this court finds that the judge made a legal error in first responders and voir dire is required, the respondent relies that the error was harmless because the judge would have found that the statements were voluntary,” said Crown prosecutor Megan Street.

Street went on to say that Berry simply is upset with the trial judge’s ruling that allowed the critical statements be heard by the jury.

Saying that Berry’s lawyer is “resurrecting his failed argument from trial.”

Street went on to argue that Berry’s comments were voluntary and made with a sound mind.

Later in their arguments, Street began to tackle the assertion by Berry’s lawyer’s that although Berry was not officially detained, he thought he was.

Street said there is no evidence that supports that: no hard entry by police, no guns drawn, no handcuffs, and that during trial, the defence didn’t mention the concept of detention or attempt to seek clarification.

For both issues – Berry’s statements to first responders, and his possible perceived psychological detention – Street argued that the facts and evidence show otherwise, so regardless the outcome by the judge and jury, would have been the same.

“Deference is owed to the findings of fact. If the court finds that the judge wrongly, the court relies on submissions made,” said Street.

The three justices presiding over the appeal did struggle with the “imperfect” language of the trial judge saying “it would have been nice” if she had been more clear in her rulings to avoid confusion.

Wednesday afternoon Crown prosecutor Clare Jennings dealt with Charter arguments, saying there is no law supporting the allegation that Berry’s liberties were infringed while he was in hospital and police were investigating him as a possible murder suspect

Jennings did concede that Berry’s constitutional right to counsel while he was detained under the Mental Health Act was breached, but his counsel would only be able to review his detention under the Mental Health Act.

As for the chartered right to silence which Russel argued Berry had and therefore couldn’t be used against him in trial by Crown, Jennings argued isn’t correct.

Jennings said that when someone is detained under the Mental Health Act, there is no right to silence.

The Crown will continue their arguments Thursday.

Andrew Berry was found guilty of murdering his two daughters, above, in 2017. Six-year-old Chloe and four-year-old Aubrey were found stabbed to death in his Oak Bay apartment on Christmas Day of that year. (Photo supplied)

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