Sisters 4-year-old Aubrey Berry and 6-year-old Chloe Berry were found dead in their father’s apartment in Oak Bay on Christmas Day. Their father Andrew Berry is charged with two counts of second-degree murder in their deaths. On Tuesday, defence counsel began to deliver its closing arguments. (Submitted photo)

Defence says burden of proof not met in double murder case against Oak Bay father

Closing statements begin in trial for man accused of killing daughters Christmas 2017

More than five months after the trial started, on Tuesday, defence counsel begun an impassioned campaign of closing arguments in defence of Oak Bay father Andrew Berry.

Berry, 45, is accused in the murders of his daughters Chloe, 6, and Aubrey, 4, found dead from multiple stab wounds in his Beach Drive apartment on Christmas Day, 2017. The girls’ bodies were discovered that evening around 6 p.m. along with Berry, who was found in his bath tub with wounds on his neck and chest.

READ ALSO: Father on trial for murder describes being ‘tackled’ and ‘stabbed’ in Oak Bay apartment

Starting mid-April the trial has seen dozens of witnesses take the stand, including first responders, a blood spatter analyst, the girls’ mother Sarah Cotton and Andrew Berry himself.

Berry has testified that he was entangled in gambling debts and owed thousands to a Chinese loan shark. Berry told the court room that the loan shark had a key to his apartment and his henchmen had visited several times before the murders to store and collect packages.

On Tuesday, defence counsel Kevin McCullough started his closing arguments by hammering in on reasonable doubt and presumption of innocence – reiterating multiple times that it’s Crown’s responsibility to prove Berry’s guilt.

Seemingly incredulous at what he called a “completely circumstantial” Crown case, McCullough insists the only thing the Court knows with certainty is when and where Berry and the girls were found “and a lot of ambiguous evidence.”

“Everything else is uncertain,” he said.

McCullough’s closing arguments centre around his problems with the Crown’s case: Time of death, motive, forensics, the timing of an alleged suicide note, and the nature of Berry’s injuries.

READ ALSO: Crown cross-examines Oak Bay dad accused of killing daughters

McCullough told the jury to question the Crown’s timeline, which puts the murders of the two girls around 8 a.m. on Christmas morning. He says witness testimony of ‘thunderous noises’ heard from Berry’s unit can’t be corroborated, and should be subject to the jury’s doubt.

He referenced testimony from Cotton, who said she had gone around the building with Brenda Berry on Christmas Day, frantically knocking on windows and ringing the buzzer of Berry’s unit in an attempt to find her daughters, who Berry was supposed to have returned to her care. Cotton told the court she did not look into the windows.

But McCullough said her evidence is not correct – that she did in fact look into the bedroom windows, and didn’t see her daughters there because Chloe and Aubrey hadn’t been killed yet.

He said the reason Cotton wouldn’t tell the court the bedrooms were empty “is because she does not want to help Mr. Berry.”

“It’s obvious, it’s just obvious,” McCullough said, hitting the stand in front of him with emphasis. “Ms.Cotton loathed Mr. Berry. She loathed him for years,” he said. “When it comes to Ms. Cotton please look at it from that angle.”

READ ALSO: WATCH: Residents honour Chloe and Aubrey Berry

Berry’s defence attorney doubled down on his issues with Crown’s forensic evidence, poking at the methods and behaviour of first responders on the scene, who he described as careless and inexperienced.

Experts determined that the girls’ last meal occurred six to 12 hours prior to their deaths, and both were described as stiff by first responders at the time they were discovered. McCullough insisted that Crown had not produced any forensic evidence concluding the time or nature of their murders. There were no fingerprints taken from the alleged murder weapons, he argued, and no DNA from Chloe or Aubrey found on Berry’s clothing.

Referencing Berry’s fragmented memories of the moments after he was allegedly stabbed, McCullough said that if his client was going to come up with a story, “he would have come up with a far better one than that.”

READ ALSO: Oak Bay father denies he made plans to kill himself on Christmas Day 2017

McCullough discussed motive too, asking the jury to think critically about a suicide note found on Berry’s kitchen table. In the note, Berry wrote to his daughters: ‘listen to me’ and ‘protect your sister.’

“That should leave you with no doubt … he was wanting to make sure the girls were protected,” McCullough said.

Online searches found on Berry’s computer showed he had looked up methods for a ‘peaceful suicide’ – searches McCullough says are at odds with his injuries on Dec. 25, 2017.

“Looking at Mr. Berry’s injuries, could there be a less peaceful way to die than stabbing yourself in the throat?” McCullough posed to the jury.

In order to find Berry guilty, McCullough said the Crown must prove that his client is lying.

“When the accused takes the stand and says he didn’t do it and gives you detailed evidence, the Crown better prove he’s a liar – Not maybe, but that he definitely is,” he said. “It’s not good enough to call him a liar and then do nothing to prove it.”

defence will continue with closing arguments on Wednesday.



nina.grossman@blackpress.ca

Follow us on Instagram
Like us on Facebook and follow us on Twitter.

andrew berry

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Cat owners are being warned to keep their pets indoors after a threatening note was found posted in a North Saanich neighbourhood. (Kendra Crighton/News Staff)
ROAM warns Peninsula cat owners after threatening note posted in neighbourhood

Note writer doesn’t want cats pooping in their yard, threatens to trap them

West Shore RCMP are investigating a crash on Sooke Road. (Photo courtesy of Rebecca Wilde)
Langford emergency crews on scene at Sooke Road crash

Almost 3,000 BC Hydro customers without power

Coun. Tara Ney rakes leaves behind Oak Bay municipal hall. Ney’s motion asking staff to do a report on alternative options to the ongoing use of gas-powered leaf blowers in Oak Bay. (Travis Paterson/News Staff)
Oak Bay a step closer to banning gas leaf blowers

Council leans toward a study on alternatives

Provincial health officer Dr. Bonnie Henry arrives for briefing on the COVID-19 situation, B.C. legislature, Oct. 26, 2020 (B.C. government)
B.C. records 217 more COVID-19 cases, mask use urged

Infection spike continues, 21 senior facilities affected

Police service dog Herc helped RCMP locate and arrest suspects in the Ladysmith area on Oct. 23, 2020, related to a stolen vehicle. (Submitted)
RCMP nab prolific property offender in Ladysmith with assist from police dog Herc

Police attempted to stop the vehicle but it fled from the area towards Chemainus.

President Donald Trump speaks at a campaign rally in Allentown, Pa. on Oct. 26. (AP Photo/Alex Brandon)
POLL: How closely are you following the U.S. presidential election?

It may feel like it’s been going on forever but the U.S.… Continue reading

Health care employees take extensive precautions when working with people infected or suspected of having COVID-19. THE CANADIAN PRESS/Chris Young
WorkSafeBC disallows majority of COVID-19 job injury claims

Health care, social services employees filing the most claims

Conservative leader Erin O’Toole rises during Question Period in the House of Commons in Ottawa on Wednesday October 28, 2020. (Adrian Wyld/The Canadian Press)
Conversion therapy ban gets approval in principle, exposes Conservative divisions

Erin O’Toole himself voted in favour of the bill, as did most Conservative MPs

CBSA. (Black Press Media File)
4 sentenced in B.C. steroid smuggling, distribution ring that spilled into U.S.

Canadian Border Services Agency announced the results of a lengthy investigation it called ‘Project Trajectory’

Search and Rescue Technicians carry a stretcher to the CH149 Cormorant during a 442 Squadron Search and Rescue Exercise in Tofino on February 28. (Photo by: Cpl Joey Beaudin, 19 Wing Imaging, Comox)
Father and son found dead after weeklong search near Pemberton

The father and son had set out for a day of mushroom picking last Thursday

A full moon rises over Mt. Cheam on Saturday, Feb. 8, 2020. (Jenna Hauck/ The Progress)
Rare full moon, Daylight Saving makes for a uniquely spooky Halloween – despite COVID-19

We can’t host costume parties but this weekend is still one for the history books

A woman wears a face mask and plastic gloves while browsing books as a sticker on the floor indicates a one-way direction of travel between shelves of books at the Vancouver Public Library’s central branch, after it and four other branches reopened with limited services, in Vancouver, on Tuesday, July 14, 2020. (THE CANADIAN PRESS/Darryl Dyck)
B.C. reports 234 new COVID cases, 1 death of senior who had attended small birthday party

Roughly 5,700 people are isolating due to being exposed to a confirmed case

Most Read