'The Crown better prove that he's a liar,' says Andrew Berry's defence as murder trial winds down

It's up to the Crown to prove that Andrew Berry is lying when he says someone else is responsible for killing his two young daughters, his defence told a jury Tuesday.

Lawyer Kevin McCullough opened his closing submissions in B.C. Supreme Court with a reminder that prosecutors must prove beyond a reasonable doubt that Berry killed six-year-old Chloe and four-year-old Aubrey on Christmas Day 2017.

"When the accused takes the stand and says he didn't do it and gives you detailed evidence, the Crown better prove that he's a liar. Not maybe, but that he is," McCullough said, his voice rising to a near-shout.

"It's not good enough to call him a liar and then do nothing to prove it."

The Crown alleges that Berry used a baseball bat and a knife to kill Chloe, then stabbed Aubrey to death before trying to kill himself. The girls were found dead in his Oak Bay apartment; he was lying in the bathtub, naked and badly injured.

But Berry claims he and the girls were attacked by an unknown man with "dark skin and dark hair." He's testified that he owed a large gambling debt to a loan shark named Paul, and had given a spare set of apartment keys to Paul's associates so they could access packages Berry had agreed to store.

McCullough reminded the jury that Berry was under no obligation to testify, and did not have to explain himself to anybody.

"If he was going to tell you a big lie, he would have told you a heck of a lot better one than that," McCullough said.

5 'problems' with Crown theory

Time after time during Tuesday's proceedings, McCullough told the jury the Crown should not be given the benefit of the doubt — the benefit of the doubt should always go to Berry.

McCullough began the day by drawing the jury's attention to what he described as five problems with the Crown's evidence — places where he saw gaps that could only be filled through speculation:

  1. The girls' time of death. Crown contends they were stabbed to death at around 8 a.m., citing evidence from a neighbour about loud crashing noises in Berry's suite. But defence argued that if the girls were killed in the morning, pools of blood and a body should have been visible through the windows if or when Berry's mother and his ex peeked in the windows that afternoon, as a neighbour has testified.
  2. Berry's alleged suicide attempt after the girls were killed. McCullough pointed out that medical experts have not been able to say conclusively whether the wounds on Berry's chest and neck were self-inflicted.
  3. Berry's alleged motive. Crown has argued that Berry was furious with the girls' mother, Sarah Cotton, and in despair over the prospect of losing access to his children. McCullough countered that Berry's relationship with Cotton was not unusual, and that Berry has only been described as a gentle father.
  4. The forensic evidence. McCullough described police work at the scene as "terrible" and inconclusive, and said the forensic evidence should not be used to prove anything about what happened.
  5. Berry's financial situation. Berry had no job, hadn't been paying his rent, had no job prospects, and his electricity had been cut off for weeks by Christmas 2017. But defence argues that was just business as usual for Berry, and should not serve as evidence against him.

McCullough focused on the forensic evidence for a good portion of his submissions on Tuesday, describing the police blood spatter expert as "incompetent" and "completely and wholly unreliable" in her testimony. 

He asked why officers didn't take fingerprints from the alleged murder weapons, or photograph the outside of the apartment to determine what would have been visible to anyone looking inside.

McCullough also questioned how, if Berry stabbed both girls repeatedly, none of their DNA was discovered on his clothing.

He suggested that many of the Crown's witnesses may have twisted or even fabricated some evidence provided to the court.

"They feel guilty that a tragedy happened. They think Mr. Berry did it, and they should have done something to prevent it," McCullough said.

"What they're doing is attempting to assist, I would argue, the prosecution."

Defence will continue closing submissions on Wednesday afternoon.