Three Crown lawyers are fighting the appeal of an Oak Bay father convicted of murdering his two young daughters on Christmas Day 2017.
Andrew Berry is challenging his convictions and sentence for the second-degree murders of six-year-old Chloe Elizabeth and four-year-old Aubrey Kate, who were stabbed to death in his Beach Drive apartment.
Berry was found with life-threatening injuries naked in a bathtub; he asked first responders to kill him.
After a five-month trial, the jury rejected Berry’s testimony that a “dark-skinned man” killed Chloe and Aubrey and attacked and injured him over a gambling debt to an Asian loan shark. He was sentenced to life in prison with no eligibility for parole for 22 years in December 2019 and filed his appeal immediately. He is seeking a new trial or a reduced period of parole ineligibility.
A four-day hearing before three members of the B.C. Court of Appeal began Monday at the Vancouver Law Courts. The hearing is being broadcast to a courtroom in Victoria.
Prosecutor Megan Street disputed the defence argument that statements Berry made to firefighters and paramedics at the apartment and to an intensive-care nurse and psychiatrist at the hospital should not have been entered into evidence.
There was no evidence Berry confused the paramedics or firefighters for police officers, she argued. The only words spoken by first responders were about Berry’s medical assessment and treatment. Berry was never told he was arrested and was never restrained, she said.
The apartment was dark because Berry had no money to pay his power bill. Const. Piotr Ulanowski, the first officer to enter the suite, stayed at the entrance to the bathroom, using his flashlight to illuminate the room. He did not have his gun out and he did not touch Berry, said Street.
Similarly, Berry’s “Kill me” statement heard by ICU nurse Elizabeth McMullen was admissible, said Street. McMullen was only in the room to attend to Berry’s medical needs and there was no evidence she could have influenced the prosecution.
“She never asked him what brought him to the hospital,” she said.
Street said the judge was also correct to admit statements made to Berry’s sister, a police officer whose name is under a publication ban. The judge concluded that in her dealings with Berry, she was acting as a sister who had just experienced a devastating loss and not as a person in authority.
Prosecutor Clare Jennings told the appeal court that Berry’s constitutional rights had been breached because he was not advised of his right to counsel when he was detained under the Mental Health Act. But a lawyer would only have been able to seek a review of his detention, she said.
She disagreed with the defence suggestion that Berry had a right to silence that was used against him. There is no right to silence guaranteed in the Mental Health Act, she told the appeal court.
Jennings also challenged the defence lawyer’s argument that there was evidence supporting a charge of manslaughter because Berry was in the throes of a mental-health crisis and in a diminished mental state.
“There is no basis in law that someone who has attempted suicide is mentally disordered,” she said.
The hearing will continue today.
