The lawyer handling Andrew Berry’s murder conviction appeal claimed the trial judge didn’t properly advise the jury on how to weigh the Oak Bay father’s silence in the wake of his two daughters’ murders.
Berry is appealing his conviction on both counts of second-degree murder for the deaths of his two children, Aubrey, 4, and Chloe, 6, who were found stabbed to death in their beds in Berry’s home on Christmas Day 2017.
On Tuesday, defense lawyer Tim Russell said trial judge Miriam Gropper erred by allowing Crown lawyers to lead evidence on Berry’s silence about his children and what happened in the aftermath.
Russell said the father had the legal right to stay mute and Gropper should have more clearly defined to the jury the laws in Canada that gave him that right. He also claimed the silence wasn’t “meaningful” because nobody confronted him in a way that garnered a response and no statements about his children were made while in his presence.
He cited Crown asking a doctor seven questions relating to Berry not asking about his daughters or what happened. The timing of those questions being at the very end of the cross-examination left a “dramatic impact” on the jury, Russell said.
Crown used the silence about his daughters and the attack as evidence of guilt, Russell said, even though Gropper ruled the silence admissible but had “no probative value in terms of the after-the-fact conduct.” Russell called the use of silence in the Crown’s closing arguments an “ambush strategy” and “if there could ever be a miscarriage of justice, that’s one.”
Joyce DeWitt-Van Oosten, one of the appeal’s three justices, refuted this by saying the Crown is able to make arguments that support their case even if they don’t align with the trial judge’s reasoning.
Russell said it was still improper on the Crown’s part. Even though Gropper told the jurors to “put it out of your mind” on the silence issue, the defense lawyer said the judge should have made it clearer that that evidence lacked importance.
“It would’ve highlighted that to the jury – not just that they can’t use the evidence, but why they can’t use it, because it’s meaningless. But she didn’t say that, she didn’t go that far,” Russell said.
Justice Patrice Abrioux argued if the jury was told not to use information, it should’ve been “end of story” and wouldn’t have influenced their decision.
“The prejudice is the Crown counsel put it in the back of (the jurors’) minds,” Russell said.
He then moved on to how the trial judge should have told the jury exactly what inferences were and were not available for them to consider when looking at Berry’s suicide attempt. Russell pointed to Gropper telling them “you must be careful, careful about inferring Mr. Berry’s guilt from this evidence because there might be other explanations.”
He said this was a “deficient” charge to the jury because Crown never specifically argued Berry attempted suicide due to the guilt he felt from killing his daughters, but “was the only use for this evidence that the trial judge gave the jury.”
DeWitt-Van Oosten countered by saying Gropper’s direction did speak to the issue the Crown raised with the attempted suicide evidence, which was Berry “being the perpetrator of the acts.”
While the trial judge outlined the difference between murder and manslaughter to the jury, Russell said Gropper should have gone further in distinguishing how the difference applied to the case.
Russell claimed “there is no real motive” for Berry to kill his girls and said Crown “essentially invited the jury to speculate.” He claimed a lack of evidence on Berry’s murderous intent should have influenced the manslaughter consideration.
The law recognizes that jury charges are not going to be perfect and are to be read in their entirety, said DeWitt-Van Oosten when challenging Russell on looking at pieces in isolation.
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