Oak Bay murder appeal focuses on judge’s instructions to jury

A lawyer for a man convicted of killing his two young daughters on Vancouver Island five years ago is outlining his case at the BC Court of Appeal.

Andrew Berry’s lawyer, Tim Russell, is making the case that the trial judge made errors when instructing the jury — a key argument in this appeal.

Berry was convicted in 2019 of two counts of second-degree murder for killing four-year-old Aubrey and six-year-old Chloe on Christmas Day 2017.

FILE – Chloe (left) and Aubrey (right) Berry. (Handout)

Russell argues the trial judge should have outlined how the jury could get to a manslaughter conviction, given Berry’s state of mind at the time of the killings.

The lawyer also argues that a prejudice was allowed to build against his client during the case, saying his client’s silence upon arrest was unfairly highlighted. While the judge told the jury to put that issue out of their minds, Russell argues that didn’t go far enough.

In his appeal, Berry argues life in prison is “excessive” and “unfit.”

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Second-degree murder brings an automatic life sentence. However, B.C. Supreme Court Justice Miriam Gropper had to determine Berry’s parole eligibility. She ruled Berry would serve his sentences concurrently.

Aubrey and Chloe were found stabbed to death in Berry’s Oak Bay apartment. He was discovered in the tub, badly hurt from what police called self-inflicted injuries.

During the sentencing hearing, the judge told Berry he had committed heinous crimes in the deaths. It was revealed during the trial that each girl had been stabbed dozens of times and the prosecution argued Berry was motivated to keep the girls from their mother.

-With files from Claire Fenton and The Canadian Press