Andrew Berry’s evidence about an Asian loan shark named Paul, two young Chinese associates and packages of drugs might sound fanciful and wild, but “it’s true, it’s true, it’s true,” his defence lawyer told a B.C. Supreme Court jury Thursday, wrapping up closing submissions presented over three days.
Berry, 45, is charged with the second-degree murder of his two young daughters on Christmas Day 2017. Six-year-old Chloe and four-year-old Aubrey were stabbed to death in his Beach Drive apartment. Berry was found with life-threatening injuries, naked, in the bathtub.
He has pleaded not guilty to the crimes.
Berry testified about falling deeper and deeper into debt with the Asian loan shark in 2017. He told the jury that he borrowed $10,000 from Paul at River Rock casino in Richmond in January 2017 and could not pay it back. A rock was thrown through his window and two young Chinese men came to his apartment looking for Paul’s money, he said. They stored drugs in his apartment and took his spare key.
Berry testified that he was tackled and stabbed when he and the girls returned home from a tobogganing trip on Christmas Day. When he regained consciousness, he said, he found Chloe dead in her bed.
“He had got himself into a world of trouble. And when you know Mr. Berry’s life and gambling history, you can see the road he travelled,” said defence lawyer Kevin McCullough.
Gambling became a bigger and bigger part of his life, said McCullough, noting Berry’s online gambling account showed wins of $99,000 and withdrawals of $87,000.
“When you gamble like him, you’re going to meet bad people and you’re eventually going to have gambling debts. … Is it really surprising Berry couldn’t pay Paul back and got into the mess he did? Not at all. That’s who Andrew Berry was in 2017.”
Berry’s ex-partner, Sarah Cotton, knew about his gambling problem, said McCullough. In May 2017, she wrote an email to a friend that said: “My gut tells me he’s in a very bad place and may have people after him re: gambling debts but at least he had the brains to not take the girls this weekend.”
“Let’s deal with reality. He was a completely addicted gambler dealing with massive stakes,” said McCullough.
McCullough told the jury that if Berry’s testimony raises a reasonable doubt, they are required to acquit him.
But if jury members think Berry killed the girls, he said, they must consider intent.
“It’s obvious from my submissions that I absolutely ask you to reject that Mr. Berry killed the girls on the standard of proof beyond a reasonable doubt. But if you reject everything I say, the court will tell you you have to deal with the issue of intent. On the Crown’s best day, this case was nothing more than a manslaughter.”
The Crown’s evidence suggests Berry was suicidal on Christmas Day, McCullough said. “The Crown’s evidence is that he is in a mentally unfit state, yet he’s charged with murder.”
The person who killed the girls and attacked Berry staged the crime scene to make it look like a murder-suicide, he argued, telling the jury to consider how the children and Berry were found.
“We know Mr. Berry tells you he was lying on the floor of the kitchen after being attacked and then the next recollection he has is being in the bathtub,” said McCullough. “Clearly, he could have tried to fill in the blanks for you, but he’s just going to tell you the truth, what he remembers. He got to the bathtub, ladies and gentlemen, because the killer put him there. And all this was to stage a scene and make it look like a murder-suicide.”
The girls were not necessarily killed in their beds, McCullough said, noting the pathologist testified that both girls had pre- and post-mortem injuries.
“Why would the girls be stabbed before and after death unless they were put in their beds and stabbed again to make it look like they were killed in their beds?” the lawyer asked.
The fact Berry was stabbed with his shirt on shows he didn’t try to commit suicide, McCullough argued. “If Mr. Berry was going to try and commit suicide, why would he leave his shirt on to stab himself, to put up a shield? … No one would leave their shirt on if they were going to try and commit suicide.
“They wouldn’t put a shield between them and their skin. They wouldn’t make it more difficult,” said McCullough.
The Crown’s case has several holes and missing pieces of evidence, said McCullough, who urged the jury to carefully analyze the evidence and toss out any innuendo or speculation.
“The Crown has the burden of proof. Mr. Berry has to prove nothing.”
The Crown will begin closing submissions Friday morning.
