WARNING: This story contains disturbing details about murder and mentions of suicide
Crown lawyers spent Thursday (June 23) continuing to push back against claims made by Andrew Barry’s defence earlier this week as he appeals his double-murder conviction.
Berry was sentenced to life in prison in 2019 for the second-degree murder of his two daughters, Aubrey, 4, and Chloe, 6, who were found stabbed to death in their beds in Berry’s home on Christmas Day 2017. Berry has always maintained his innocence and is now seeking a retrial.
Andrew Berry’s silence
Thursday, Crown lawyer Megan Street focused a large portion of her time refuting the defence’s argument that testimony allowed into the original trial should have resulted in a mistrial.
The testimony in question came from health care workers at the hospital Berry was taken to after he was found partially submerged in his bathtub with gaping wounds on Christmas Day. The workers told the court that Berry never once asked them whether his daughters were alive or mentioned the alleged loan shark who Berry claimed attacked him and his daughters over his gambling debt.
Crown argued the reason Berry never mentioned these things was because he knew his daughters were dead, having killed them himself. They argued he came up with his loan shark explanation after the fact.
The original trial judge, Miriam Gropper, allowed the testimony but instructed the jury not to use it as evidence of guilt. She concluded that it is impossible to know how a parent would or should respond in such a situation.
READ ALSO: How jury perceived Andrew Berry’s silence after Oak Bay daughters’ death key appeal issue
The defence said this wasn’t enough though, and that the jury may have been swayed by testimony around Berry’s silence.
Speaking Thursday, Street said inclusion of the testimony was warranted though and that it spoke to Berry’s credibility. She added she thought it was equivalent to the judge’s decision to allow testimony from police that Berry never admitted to the crime when he was interviewed by them.
Murder versus manslaughter
Street also refuted the defence’s claim that the trial judge failed to properly explain to the jury the difference between manslaughter and murder, where the latter includes proof of intent.
The defence argued – while maintaining Berry’s innocence – that because Berry was suicidal during the time of the murders, he had a lack of capacity and lack of intent. Defence lawyer Tim Russell claimed “there is no real motive” for Berry to kill his girls and said Crown “essentially invited the jury to speculate.”
Street said all their available evidence did suggest intent, however. She pointed to the 26 and 32 knife wounds Chloe and Aubrey received, respectively. She also argued there were significant gaps in Berry’s claim that a loan shark came into his home, killed his girls, and then injured him in such a way that it appeared to be a murder-suicide.
Street added she thought it was correct for the trial judge to limit the defence’s questioning around what steps police may have failed to take during their investigation.
Her statements Thursday concluded the appeal process. The three justices overseeing the hearing will now make a decision. There’s no timeline on how long that’s expected to take.
-With files from Jake Romphf
READ ALSO: Crown uses trial evidence to dispute defense’s claims during Andrew Berry’s appeal
READ ALSO: Oak Bay double murder trial: Five months of evidence, testimony summarized
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