The defence urged the jury to reject the evidence of police officers, nurses, a psychiatrist, detectives and the accused’s sister as closing submissions continued Wednesday at Andrew Berry’s trial for the second-degree murder of his daughters.
Berry, on trial at the Vancouver Law Courts, has pleaded not guilty to the murder of six-year-old Chloe and four-year-old Aubrey on Christmas Day 2017. The 45-year-old Oak Bay man has testified that he was brutally attacked in the bedroom of his Beach Drive apartment by people associated with a loan shark and that when he regained consciousness, he discovered Chloe and Aubrey had been killed.
The trial has heard that the children were stabbed and killed in Berry’s apartment and that police found Berry naked and injured in the bathtub. The Crown’s theory is that Berry killed the girls, then tried to commit suicide by stabbing himself in the throat and chest.
Defence lawyer Kevin McCullough told the jury not to trust the evidence of Oak Bay police Const. Peter Ulanowski, who discovered the bloody scene. The defence lawyer said the officer’s evidence is unreliable because he was despondent. “We can have sympathy for Const. Ulanowski, but he’s a police officer. He sees one of the girls on the bed and he really freaks,” McCullough said.
When Ulanowski called Sgt. Michael Martin for backup, he was distraught and only managed to utter the words “bloodshed … anarchy … chaos.”
His evidence that he met with resistance when he tried to push open the door to the apartment should be rejected because of the state he was in, McCullough said.
The lawyer accused both Martin and Ulanowski of downplaying the fact that no one guarded the door to Berry’s apartment for about five minutes while Ulanowski went outside to meet Martin.
“They really made an effort to try and downplay that fact because it’s such a big mistake. It’s a big tell of what the witnesses are trying to do. Are they trying to be frank and honest or trying to shape things?” the defence lawyer asked.
McCullough described Berry’s condition at the hospital as “like coming out of a nightmare.” Even though critical-care nurse Elizabeth McMullen testified that Berry mouthed the words “kill me,” McCullough said Berry was still affected by the anesthetic Propofol and other medications.
McCullough also pointed to what he considered limitations in the assessment by psychiatrist Amanda Pitcher, who specifically avoided speaking with Berry about the girls and what took place on Dec. 25.
“The goal was to find out if he was suicidal and whether he was going to be detained under the Mental Health Act. … She did not ask him how he attempted to commit suicide. She doesn’t ask him about the suicide note. She didn’t even ask when he attempted to commit suicide,” said McCullough.
When Pitcher asked Berry how he felt about living, he shrugged his shoulders.
“This does not mean he tried to commit suicide,” McCullough said.
When Pitcher returned to the hospital on Dec. 28, Berry refused to talk to her. “And that supports Mr. Berry’s evidence that he believed his sister was acting as a police officer,” McCullough argued.
McCullough also urged the jury to believe Berry when he testified that everyone at the hospital thought he had killed his children.
The defence lawyer was most scathing about Berry’s sister, an RCMP officer whose first name is protected by a publication ban, telling the jury: “You can’t believe a word she said.”
Berry’s sister originally told a detective that she never thought her brother would harm his kids. But when she found out the girls were dead, she decided her brother was guilty and tried to elicit a confession from him, McCullough said.
She was acting like a police officer, not a sister, when she visited her brother in hospital, he said. After she visited him in jail and Berry denied killing his daughters, he never saw her until the court case. She wanted him to plead not guilty by reason of a mental disorder.
“Her biggest worry was how her brother would look. That’s why she gave him clothes to wear and wanted him to cut his hair,” said McCullough.
Berry’s sister misled the jury about notes she exchanged with her brother at the hospital, he said. She testified that she had forgotten about the notes and found them later in the glove box of her car. She waited until she was on the stand and had protection under the Canada Evidence Act to produce them, said McCullough.
“Anytime she says anything, she is deliberately misleading you … From the minute she learned the girls were dead, she had an agenda,” he said.
It would be dangerous to accept the Crown’s assertion that Berry was in a downward spiral over his finances, the defence lawyer argued, noting Berry didn’t pay his rent or bills on time even when he had a full-time job or had won a substantial amount of money gambling.
“When it comes to paying rent and hydro, he’s not like regular people,” McCullough said.
He also said there is nothing surprising in the fact that Berry used foul language to describe ex-partner Sarah Cotton. At the time, he was facing allegations that he inappropriately touched Aubrey. The allegations were unsubstantiated, said McCullough.
The lawyer argued that the only evidence of Berry’s intention is in an undated suicide note he wrote to his sister that said: “Please influence my girls to tell it like it is. They had two rules. Listen to me and protect your sister.”
“The note is absolute motive that he did not intend to harm the girls,” McCullough said.
Defence submissions continue today.
B.C. Supreme Court Justice Miriam Gropper will begin her charge to the jury Monday.
