B.C.’s top court has dismissed an appeal by an Oak Bay man convicted of murdering his two young daughters on Christmas Day 2017.
A jury found Andrew Berry guilty in September 2019 of two counts of second-degree murder in the brutal stabbing deaths of his daughters six-year-old Chloe and four-year-old Aubrey.
Berry appealed the verdict, arguing the trial judge had improperly allowed statements Berry made at the crime scene to first responders, hospital staff and his sister.
Berry’s trial heard that he had said “leave me alone” and “kill me” when found with suspected self-inflected stab wounds in his bathtub. His lawyers argued accepting those statements violated Berry’s charter rights, because first responders and hospital staff could have been viewed as persons of authority.
Berry’s appeal also argued the judge had erred by limiting cross examination about the quality of the police investigation, and allowing evidence around Berry’s failure to ask about the well-being of his daughters. It further alleged the judge erred in its instructions to the jury about the use of Berry’s out-of-court statements and about the difference between murder and manslaughter.
In its ruling posted Wednesday, the B.C. Court of Appeal three-judge panel found “none of the grounds of appeal establish errors that that warrant” their intervention.
The panel ruled that the trial judge had not erred in accepting evidence from first responders and hospital staff, and that it was within the judge’s power to rule Berry was not detained at the scene of the crime or when he was first admitted to hospital.
It also found the trial judge was correct in concluding Berry did not have a constitutionally-protected right to silence when admitted to hospital under the Mental Health Act.
“There were no errors in the trial judge’s charge to the jury regarding the use of the appellant’s out-of-court statements, the evidence of his attempted suicide, or the instructions on manslaughter,” it added.
“The trial judge carefully instructed the jury on each of these points and it was up to the jury to decide how to assess the relevant evidence and what weight to give to it.”
The panel further ruled the trial judge had not erred in mid-trial rulings about evidence around Berry’s silence or the adequacy of the investigation.
At trial, Crown argued Berry had hit rock bottom over a crippling gambling addiction that left him unable to pay his bills, and had killed the two girls before apparently attempting to take his own life.
Berry and his defence have maintained the father was attacked by a person connected to a loan shark named “Paul” to whom he owed a significant gambling debt, and woke up later to discover his daughters had been killed.
Berry is currently serving a sentence of life in prison with no chance of parole for 22 years.