R v Ryan (No 3) - [2020] NSWSC 1421

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Ryan (No 3) [2020] NSWSC 1421
Hearing dates: 28 September 2020 – 14 October 2020
Decision date: 15 October 2020
Jurisdiction: Common Law
Before: Button J
Decision:
Verdict of guilty of murder

Catchwords:
CRIMINAL LAW – murder – trial by judge alone – plea of not guilty to murder but guilty to manslaughter – accused relied upon partial defence of substantial impairment – fatal domestic violence stabbing – accused subject to AVO – intention to kill – accused suffered from brain damage caused by chronic alcohol abuse – accused suffered from mood disorder – acceptance of some impairment of capacity to understand events and capacity to control oneself – failure to establish either impairment substantial – contingent consideration of whether impairment was so substantial as to warrant reduction in liability from murder to manslaughter – discussion of community standards with regard to fatal domestic violence – verdict of guilty of murder returned

Legislation Cited:
Crimes Act 1900 (NSW), s 23A
Evidence Act 1995 (NSW), s 165

Category: Principal judgment
Parties: Regina (Crown)
Paul Ryan (Accused)
Representation:
Counsel:
B Campbell (Crown)
J Watts (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2018/347939

Judgment

Introduction

A little after 6 PM on Monday 12 November 2018, Paul Thomas Ryan (the accused) and Maree Van Beers (the deceased) were together in the apartment in which they both lived in the regional centre of Tweed Heads, in the far north of New South Wales.
To state the broad context very succinctly, they were both aged in their early 60s, and had previously been romantic partners for well over three decades. They had raised two sons, Mr Christopher Ryan and Mr Michael Van Beers, both of whom were by then adults. The life of the accused and the deceased had not been marked by good fortune: the accused had suffered a work injury many years before that had led him to experience significant pain, and the deceased had had her own medical issues. Furthermore, the accused for many years had been a chronic alcoholic (although there had been a decade of abstinence well in the past), and he had also developed a dependence upon prescription medication. As at the date in question, his relationship with alcohol and prescription drugs was completely unresolved. The deceased, it seems, had had her own issues with the latter substances.
Their life had not been marked by material privilege either: I do not understand that they had earned an income from employment for many years, and at one stage they had been living on a permanent site in a caravan park in Chinderah, in the Northern Rivers of New South Wales. On the other hand, the flooding of that site had led to an insurance payout, which in turn led to the apartment being purchased by the younger Mr Ryan, and his parents being permitted to reside in it.
The more specific context was as follows. The romantic and intimate side of the relationship between the accused and the deceased had died, at the least many months before, though some effort was being made to stay on friendly terms, at least by the deceased. Over some years, the deceased had developed a digital friendship with a man who lived on the Mid-North Coast, a Mr Michael Robinson. In the months preceding 12 November 2018, she had travelled south and met him in person. The relationship blossomed, emotionally and physically. The accused was aware of that relationship and was unhappy about it. That manifested itself in a number of ways, including the following.
On 30 September 2018, the accused had posted a message to Facebook. Without recounting it verbatim, it stated in harsh terms that the deceased and her sister had been sexually unfaithful to their partners, and that any person who had sex with the deceased was in danger of being infected by venereal disease.
On 6 October 2018, Mr Robinson had recorded a portion of a telephone conversation between the deceased and the accused during one of her trips south. It included the accused saying to the deceased “I will fucking smash your fucking face, I will and I fucking mean that Maree, you’re not going to go any fucking where near him”.
Late on the evening of 28 October 2018, police had attended at the apartment at the request of the deceased. Both she and the accused spoke separately to police, and at length. The deceased spoke of their relationship having extended over 37 years; it having featured two acts of physical violence committed by the accused; and a recent intolerable increase in verbal abuse, including threats of physical violence. On the other hand, she did not appear to me to be cowed or overborne at that stage, and was perhaps exasperated more than fearful. More generally, she was on the evidence a person capable of speaking directly and bluntly. The accused – who was to my assessment drunk on that evening – spoke of various grievances that he had against the deceased, including with regard to the expenditure of the remainder of the insurance money, and her relatively new relationship with Mr Robinson.
In the event, a provisional apprehended violence order (“AVO”) was taken out, returnable before Tweed Heads Local Court on the morning of 12 November 2018.
The accused and the deceased had duly attended that morning. An interim AVO was imposed by the learned Magistrate, with a further return date of 10 December 2018.
After court, the accused had spent most of the afternoon at the nearby Tweed Heads Bowls Club (the Bowls Club), and consumed nine schooners of medium strength beer over the course of about five hours. The deceased on the evidence had spent the afternoon at home, including being in digital contact with Mr Robinson.
As at that Monday, the deceased had been intending to travel to the mid-North Coast to look for a home to be shared between herself, Mr Robinson, and her sister, Ms Sylvia Van Beers, who also lived in that area to the south, and had endured a period of homelessness. The trip was delayed because of car trouble, and the expressed intention of the deceased was to make the trip of some hours the following morning. She had packed some bags and was in the process of cutting up fruit in the kitchen of the apartment for the journey, as well as cooking a stew to be enjoyed by Mr Robinson on her arrival.
Although it may be that that was not to be a permanent departure from Tweed Heads by the deceased, it was certainly a significant step in the development of her romantic relationship with Mr Robinson.
The trip from Tweed Heads to Port Macquarie was never undertaken. That is because, at the date and time in question, the accused committed an act of fatal domestic violence against the deceased. To state things succinctly at this stage, he inflicted well over 30 wounds to her person by way of at least two knives. He also inflicted blunt force trauma to her head. The final ordeal of the deceased was not extended, but it was by no means quick, as heard by many neighbours, who were unable to rescue her because both doors to the apartment had been locked. At one stage she was heard to say to the accused “Look at all the blood”, in an effort to get him to stop. At another stage, she said to him “What about the boys?”, in a reference to their sons. There can be no doubt that she was begging for her life. The riposte of the accused to the latter question was “Fuck the boys”.
It is also important to record at this stage that, either before or perhaps during a pause in the stabbing, the accused held a knife to the throat of the deceased, and ordered her to telephone her sister, Mrs Moya Reid, who lived in Menindee, in far western New South Wales. In a nutshell, he then ordered the sister of the deceased, to whom he believed the deceased would listen, to tell the deceased to remain with him. Mrs Reid promptly got off the line in order to call 000 separately, her husband came on the line, and he heard the conclusion of the fatal assault.
Of course, the neighbours who heard the suffering of the deceased had also called 000. Uniformed police promptly attended. They broke into the apartment and saw the accused standing some distance from the front door. He was smoking a cigarette. A firearm was drawn by one of the officers. The accused was ultimately forcefully arrested, detained on the floor of the apartment, and walked in handcuffs to a caged vehicle. In the meantime, Ms Van Beers was found lying on the floor of the kitchen, having already bled to death.

Criminal proceedings

Those events led to the accused being arraigned on 28 September 2020 in the Supreme Court sitting at Lismore on an indictment containing a single count: the allegation that on 12 November 2018 at Tweed Heads he had murdered the deceased. He pleaded not guilty to murder but guilty to manslaughter. The Crown did not accept that plea, with the result that a murder trial immediately proceeded on the basis that the real question for resolution was whether the accused should be found guilty of murder or manslaughter.
The trial proceeded without a jury and by judge alone, in accordance with an order that I had previously made, in turn founded on the earlier concurrence of the parties.
From a very early stage, defence counsel made it clear that proof beyond reasonable doubt of the elements of the offence of murder was not in dispute; the basis upon which a verdict of guilty of manslaughter was sought was the establishment by the accused on the balance of probabilities of the partial defence of substantial impairment.

Legal matters

Before turning to recount the evidence and any factual findings of mine in more detail, it is convenient now to set out the legal doctrines that I have applied to my task as the tribunal of fact. All of the following legal principles were arrived at with the ultimate agreement of both counsel.
In a criminal trial by judge alone, I am required to conduct the proceedings, to the extent reasonably practicable, as if the tribunal of fact were twelve members of the community. In contrast to the verdict of a jury, however, I am required to provide reasons that adequately explain the principles of law that I have applied, my acceptance or rejection of evidence, and my processes of reason about factual matters.
The elements of murder need to be established by the Crown beyond reasonable doubt. They are contained in the first document annexed to these reasons, which was the subject of explicit endorsement by both counsel. In a nutshell, the Crown must prove here to the criminal standard that the accused, voluntarily, did an act, that caused the death of the deceased, and, at the time of that act, he intended either to kill or to cause really serious physical injury. (I interpolate that, as I have said, defence counsel did not dispute that all of the elements of the offence could be proven, and furthermore that an intention to kill could also be proven to the criminal standard.)
The elements of the partial defence of substantial impairment, to be found in s 23A of the Crimes Act 1900 (NSW) (the statute), need to be established by the accused on the balance of probabilities. If any necessary element is evenly balanced, the partial defence fails. The elements are in accordance with the second document annexed to this judgment, which was also the subject of explicit endorsement by both counsel.
In a nutshell, the accused must prove on balance that, at the time of the fatal act, he was suffering from an underlying condition, that was either mental or physiological, that was not transitory, that gave rise to an abnormality of his mind; and that that abnormality substantially impaired either his capacity to understand events, or his capacity to judge whether his actions were right or wrong, or his capacity to control himself; and, in my opinion, that any such impairment was so substantial as to warrant liability for murder being reduced to manslaughter. I shall refer to that final element of the partial defence as “the normative judgment”.
The effect upon the accused of any self-induced intoxication at the time of the homicide is irrelevant, pursuant to the statute, for the purposes of the partial defence (I interpolate that neither counsel submitted that, at that time, the accused was either intoxicated by alcohol or withdrawing from it).
Speaking more generally, the effects of chronic and acute intoxication by alcohol, prescription drugs, or any other psychoactive substance are neither “an abnormality of the mind” nor “an underlying condition”. That is because they are external factors that affect the minds of human beings, not internal or inherent attributes of those minds.
Alcohol-induced brain damage, on the other hand, can indeed be an underlying condition that is not transitory, and that gives rise to an abnormality of the mind.
Expert opinion evidence was placed before me in the trial. Some of it is not in dispute – for example, the DNA evidence – and I would need a good reason not to accept such evidence. As for disputed expert evidence, I should reflect upon the qualifications, knowledge, and experience of an expert; upon the materials with which the expert has been provided; in particular, whether my findings of fact are different from any materials provided to, or assumptions made by, an expert in coming to an opinion; and I should also reflect upon the carefulness, logicality, and cogency of the process of reasoning undertaken by an expert in arriving at the ultimate opinion. Having said that, I remain the tribunal of fact, even as to matters about which experts have given opinions, and my assessment of the correctness of their opinions is a matter for me.
It is incumbent upon the Crown to prove the elements of murder, none of which are disputed. And it is incumbent upon the accused to prove on balance the elements of the partial defence, only two of which, as I shall explain shortly, are disputed. But what of particular facts relied upon by the Crown said to argue against the establishment of the partial defence? By which party must they be proven or disproven, and to which standard? In the ultimate, the parties agreed that I should regard it as incumbent upon the Crown to “establish” facts said to play that role, but to no precise standard of proof, perhaps analogous to primary facts in a circumstantial case.
In similar vein, things said by the accused that are demonstrably incorrect (to use an objective term) are relevant to a number of issues, not least his reliability as a historian, and his degree of impairment. If it were the case that the accused had deliberately lied, in particular at a time close to the homicide, that would also be relevant. Having said that, it would be incumbent upon the Crown to “establish” any such deliberate lie before I could rely on it adversely to the partial defence.
Relatedly, as the tribunal of fact, I am entitled to draw inferences from other, established facts, for or against the establishment of the partial defence. I should only do so by way of a rational process of reasoning, and not by way of speculation or guessing. With regard to inferences favouring the partial defence, which need only be established on balance, I do not need to exercise the same degree of caution that I would about some disputed matter that needed to be proven beyond reasonable doubt. With regard to inferences as to matters arguing against the partial defence, in accordance with what I have said previously, they do not need to be established beyond reasonable doubt. Having said that, on reflection I have adopted considerable caution in drawing such an inference.
I have been requested as the tribunal of law to “give myself” as the tribunal of fact no warnings about factual matters pursuant to s 165 of the Evidence Act 1995 (NSW). In particular, although a deal of hearsay evidence was placed before me, no warning about it was sought by either party.
As the tribunal of fact, I must disregard any observations I may have made of the conduct and demeanour of the accused in the courtroom, and deliver my verdict simply upon the evidence formally placed before me.
Although evidence of other conduct of the accused on occasions other than the early evening of 12 November 2018 has been placed before me, character has not been raised. Accordingly, none of the evidence is to be analysed by me on the basis that it demonstrates good character or bad character on the part of the accused.
The recorded interview, and other things that the accused has said, including to both psychiatrists, are possible versions of events. Despite the onus that he bears with regard to the partial defence, the fact that the accused did not give evidence before me is not to be held against him in the slightest.
In assessing the normative judgment, the tribunal of fact is not called upon to focus merely on any impairment and its degree of substantiality, shorn of context. In other words, the nature and circumstances (both specific and general) of the homicide itself are relevant to the question of whether reduction from murder to manslaughter is warranted in accordance with the normative judgment.
Finally, in coming to the normative judgment in a trial by judge alone, I should generally apply my individual standards as a member of the community, unless I felt that my own views were idiosyncratic and not generally reflective of the views of my fellow members of the community. If that were the case, I should temper my views and do my best to express what I understand community standards to be.

Real issues in trial

By the conclusion of the trial, the issues requiring resolution in these reasons for verdict had become very limited, as follows.
As I have said, there was no dispute by the accused about the establishment of the elements of murder beyond reasonable doubt.
As for the partial defence, the prosecution did not dispute that, on balance, at the time of the fatal stabbing, the accused was suffering from an abnormality of the mind, arising from an underlying condition that was not transitory.
In a nutshell, the underlying condition was (to use the term of a layperson) brain damage caused by chronic alcohol abuse (it was referred to by Dr Ellis, forensic psychiatrist called by the defence, as a “chemical injury”). That brain damage was objectively observable on a number of scans conducted over a number of years. The abnormality of the mind arising from that underlying condition was agreed to be a cognitive impairment (again, to speak as a layperson, I understood that to be a reduction in the thinking ability of the accused).
Nor did the Crown dispute that that abnormality of mind had impaired, to some degree, the capacity of the accused to understand events, and to control himself, and indeed his capacity to judge the rightfulness or wrongfulness of his actions (I shall not discuss that third aspect of the partial defence further, because Dr Ellis for the defence did not support it, and defence counsel explicitly placed no reliance upon it in his final address).
However, the Crown did dispute whether any such impairment, either to the capacity to understand events or to control himself on the part of the accused, was substantial.
As well, the Crown disputed that any such impairment was so substantial as to warrant liability for murder being reduced to manslaughter; what I have called the normative judgment.
In other words, these reasons for verdict need explicitly answer only the three questions that were ultimately disputed before me. First, has it been established on balance that there was a substantial impairment of the capacity of the accused to understand events at the time of the fatal stabbing? Secondly, in addition or in the alternative, has it been established on balance that there was a substantial impairment of the capacity of the accused to control himself at the identical time? And thirdly, if either of the first two questions is answered in the affirmative, in my opinion on balance should the normative judgment be answered in the affirmative?

Further aspects of evidence, and factual findings

Returning now to an analysis of the evidence, it is amply established beyond reasonable doubt that the accused caused the death of the deceased by way of a voluntary act. And, but for the establishment of the partial defence on balance, all elements of murder have been proven beyond reasonable doubt. In other words, I accept the concession of defence counsel, and turn immediately to analysis of the partial defence.
Professor Greenberg, eminent forensic psychiatrist, was called by the Crown. In his opinion, the first two questions posed by me a moment ago were to be answered in the negative. Although he conceded some impairment, he did not consider it substantial.
In a nutshell, Professor Greenberg agreed that medical scans of the brain of the accused objectively demonstrated brain damage caused by chronic alcohol abuse. He accepted that it would have impaired, to some degree, the two capacities under consideration. But he did not agree that either impairment would have been substantial. His opinion was that a very large portion of the reduction in functioning of the accused in the months and years preceding the homicide was the result of chronic and acute intoxication by alcohol and prescribed drugs (which is not, as I have said, an underlying condition, nor an abnormality of mind). He engaged in a detailed analysis of the behaviour of the accused around the time of the homicide, and gave the opinion that, although impaired, the understanding of events of the accused was quite good, as was his ability to control himself. To express things in terms of psychiatric classification, Professor Greenberg felt that there was mild cognitive impairment secondary to his chronic alcoholism and consequent small vessel disease.
On the other hand, Dr Ellis, eminent forensic psychiatrist called by the defence, felt that there was indeed alcohol-induced brain damage, along with a mood disorder in the form of depression and anxiety at the relevant time. He felt that the latter was very longstanding, had been extreme enough to feature psychosis in the past, had been formally medicated by antidepressants for years, and was not just a “side-effect” of intoxication with alcohol or prescription drugs. Dr Ellis felt that, in combination, those two underlying conditions were an important contributor to the conduct of the accused on 13 November 2018. To express that in precise accordance with statute, I accept that he felt that those two underlying conditions in combination substantially impaired the capacity of the accused to understand events, and to control himself at the relevant time. Again to express things in terms of psychiatric classification, Dr Ellis felt that there was major neurocognitive disorder, albeit at the top or less severe end of the range.
In my opinion, there is no necessity in this judgment for me to presume to determine which eminent psychiatrist is “right” and which is “wrong”. That is so for a number of reasons.
First, they were in agreement about the presence of an underlying condition giving rise to an abnormality of mind. At the least, they agreed about the objectively established brain damage caused by alcohol. Secondly, each agreed that there was some impairment of the relevant capacities. In truth, the difference between them was one of degree, arising from different emphases placed by each of them on different portions of the established facts, including extensive medical records stretching back over 20 years. They simply ultimately arrived at different places on a spectrum of impairment, and indeed were not far apart on that spectrum in the result. And in any event, the word “substantial” is itself one that admits of no specific meaning, above and beyond its ordinary English meaning, which is inherently evaluative and imprecise.

Impairment of capacity to understand events?

In my opinion, the accused did suffer from an impairment to his capacity to understand events. I say that not only because of the unanimous position of two eminent psychiatrists. I also say it because, in my opinion as the tribunal of fact, his presentation at around the time of the homicide was slow (both literally and figuratively), and his cognition was limited. Examples are how he spoke during the phone call of 6 October 2018; the recorded interaction with the learned Magistrate on 12 November 2018; and his presentation in the recorded interview with detectives in the early hours of 13 November 2018.
I also say it because of what he had to say on those occasions, as opposed to how he said it. Even making due allowance for his limited education, the chronic and acute effects of intoxication by alcohol and prescription drugs, and, perhaps on 6 October 2018, withdrawal from alcohol whilst in hospital, I consider that his thinking as expressed through his words was limited and reasonably concrete. And one can infer without difficulty that that was his level of thinking at the time of the fatal attack. I also agree with Dr Ellis that the idea that the phone call to Menindee would cause the deceased to reconcile with the accused was, on a deeper analysis, simplistic in the extreme.
In short, I agree that there was some impairment to the capacity of the accused to understand events at the time of the homicide.
Having said that, I do not consider it established on balance that any such impairment was substantial. Indeed, I am satisfied on balance that that impairment should not be classified in that way, for the following reasons.
First, the accused well understood, in my opinion, that his long-term partner was on the verge of leaving him, sharply contrary to his wishes. He understood that she no longer loved him. He understood that she was determined to pursue a romantic relationship with another man. And he understood that his explicit and violent threat of 6 October 2018, and any other verbal threat, had been ineffectual. So much is quite clear from the offensive Facebook post of 30 September 2018, the telephone call of 6 October 2018, what he had said to drinking companions and strangers such as taxi drivers, and what he subsequently told police in his recorded interview.
Secondly, the accused well understood (at the time, and subsequently) that the police had been called on 28 October 2018, that that was a result of his conduct towards the deceased, and that, if he breached the AVO, he could be subject to incarceration or other preventative or punitive action.
Thirdly, at the courthouse on the morning in question, the accused well understood the nature of the litigation in which he was involved. So much is clear from his interaction with the Magistrate, his interaction with other professionals in the courthouse, his repeated efforts to proffer documents, his effort, I readily infer, to have the deceased called to say that she did not wish to pursue the AVO, and, again, what he subsequently said to others, including investigating detectives, about what had happened that morning.
Fourthly, speaking more generally, in the recorded interview conducted about eight hours after the homicide, and at which time the accused was not intoxicated by alcohol, I accept that the accused was genuinely amnesic with regard to the details of the homicide itself, due to its traumatic nature. But he had a very good memory of the events of that day preceding the commencement of his violent actions, and indeed of many aspects of his life over the years leading up to that. To give but one of many examples of the details in that interview that are verifiable and demonstrative of his cognitive engagement despite the extraordinary circumstances, the accused was able to correct the interrogating detective as to whether the accommodation at Chinderah had been a motel or a caravan park.
Fifthly, it is perfectly true that over the years the accused has been hospitalised on many occasions for extended periods, and had been discharged from hospital as recently as 19 October 2018. And it is also quite true that his thinking and understanding had been limited, and was declining in the period leading up to the homicide. But without descending to a level of detail, in assessing the impairment, arising from an underlying condition, of this man’s capacity to understand events, as I have said, one must disregard the consequences of chronic and acute alcohol intoxication. I believe that the vast bulk of the reasons why the accused has been hospitalised, at least since 2007, are to do with chronic alcoholism and prescription drug abuse, and physical and physiological detriments arising therefrom, not an underlying condition giving rise to an abnormality of mind, of which the statute speaks.
Sixthly, and in similar vein, it is perfectly true that the general level of day-to-day functioning of the accused around the time of the homicide was very low, as recounted by his son Mr Christopher Ryan, and indeed by the deceased. But again, in my opinion a great deal of that can be ascribed to alcohol and prescription drugs, and there is evidence that the accused was abusing both of them more and more heavily in 2018. To give but one example, during his extended hospitalisation during October 2018, he left hospital twice, simply in an effort to obtain alcohol. His incapacity to undertake basic household chores, for another example, is very largely to be ascribed to those two external factors, not to an underlying condition. As well as that, I think that there may have been an element of learned helplessness or lack of desire in some aspects of this man’s level of function. After all, he was perfectly able to use a grinder to repair a young lad’s scooter when he wished to; to purchase drinks when he wished to; to gamble when he wished to; to pass the time in the Bowls Club chatting with friends when he wished to; to use a mobile phone when he wished to; to compose and post a Facebook message when he wished to; to catch a cab when he wished to; to sit in the sun drinking and greeting neighbours when he wished to; and so forth.
There has also been a question in my mind as to whether the accused is malingering as to his level of function and his capacity to understand events. To give an example, he spoke to police on the day of the homicide of being functionally illiterate. Months later, he spoke to one of the forensic psychiatrists of passing the time in prison by reading crime novels. In my opinion, those two propositions by no means sit together readily. Having said that, in light of the legal approach that I previously set out with regard to matters adverse to the partial defence, I do not approach that particular matter, or any other matter as to his capacity to understand events, on the basis that it has been established that he has told a deliberate lie.
Seventhly and finally on this aspect, it is important that, on about 29 October 2018, the accused burnt the clothes of the deceased in her absence. That was unquestionably a directed act, born of understanding of events: an act of revenge designed to cause serious inconvenience and loss to the deceased, in return for her having disappointed him by departing for a time to be with another man. What he did, and what he had to say about what he was doing and why, taken as a whole, is redolent of understanding of events, and a rational if unacceptable response to them.
In short, I accept without difficulty that on the day of the homicide there was impairment of the capacity of the accused to understand events. But I am not satisfied on the balance of probabilities that that capacity was substantially impaired.

Impairment of capacity to control himself?

In similar vein, again in accordance with the unanimous position of the psychiatrists, I consider that the capacity of the accused to control himself was impaired on that day. I accept that his cognitive impairment led to a degree of disinhibition, impulsivity, and inability to reflect on the consequences of his actions. And, if there was in truth any dispute between the two psychiatrists by the end of the evidence as to whether or not the accused suffered from a mood disorder on 12 November 2018, on balance I accept that he did. I say that not least because of the very longstanding history, including an admission to a psychiatric unit for over 12 weeks for psychotic depression in 1997, and because I think it quite possible that that mental state has played a causative role for many years in his abuse of alcohol and prescription drugs. I accept on balance that this man’s capacity to control himself was impaired by those two underlying conditions, operating in combination with each other.
Again, however, to my mind it has not been established on balance that that impairment to his ability to control himself was substantial on the day of the homicide, for the following reasons.
The accused behaved himself very well in the period during and immediately after the visit from police on 28/29 October 2018, despite his drunkenness and his previous agitation. He was “good as gold” according to the deceased during the currency of the AVO, during which time he appreciated that breach could lead to incarceration. She spoke similarly to domestic violence professionals at the courthouse on the morning in question. Despite previous fears about his potential conduct that had led the deceased to keep a knife under her bed, in the days leading up until 12 November 2018, and on that day itself, she was not fearful of him until the attack began. In the courthouse on the same morning he was well behaved, and indeed lined up quietly next to the deceased. He interacted there with professionals, including police officers, appropriately. He was respectful in what he said and how he said it to the Magistrate. Although he was ruminating later that day in the Bowls Club about the turn of events, he was well in control of himself at that location. The same may be said during the taxi ride from Court to Club. On the occasion when he returned home for about half an hour on the same afternoon, there was no evidence of loss of control. After the homicide, and after having been forcefully arrested by police, he was compliant, responsive, and in control of himself, including during a reasonably extended recorded interview. The custody management records are to identical effect.
In my opinion, it is neither coincidence nor accident that the homicide occurred on the day upon which an AVO had been formalised, and about 12 hours before the deceased was to commence a new life with another man. By that I mean, the homicide was not an impulsive, explosive, pointless, irrational loss of control; seen in context, it must be seen as a directed response to developing events. It had its frenzied aspects, but there is an important distinction between a substantially impaired capacity to control oneself, and a lack of desire to do so.
I should also record in the context of this discussion of degree of impairment of self-control that I do not accept on balance the assertion of the accused that he was repeatedly taunted by the deceased before he killed her. The negative of that proposition is not, I believe, something that the Crown must “establish”; in my opinion, in order to be taken into account, the proposition needs to be established by the accused on the balance of probabilities.
As I remarked during addresses to counsel, the deceased did not taunt the accused during the telephone call of 6 October 2018; she had no reason to taunt him on 12 November 2018 due to her imminent departure; no neighbour heard anything of the sort; and the accused is a demonstrably unreliable historian about many other matters. To be clear: I do not accept that the accused lost control and killed the deceased as a response to having been taunted by her moments beforehand.
Finally with regard to this second question, during the telephone call from Tweed Heads to Menindee either before or during the fatal assault, the accused controlled himself, whereby he was well able to hold a knife to the throat of the deceased, insist that the telephone call be made by her, speak rationally to Mr and Mrs Reid, and convey his demand that the deceased be counselled to remain, in accordance with his own desire. To my mind, that was a significant exercise of emotional control on his part, in extremely stressful circumstances.
In my opinion, although there was some impairment of the capacity of the accused to control himself on 12 November 2018, it has not been established on balance that it was a substantial impairment.

Normative judgment

The preceding analysis is, I readily accept, concise. It should be interpreted as disrespectful neither to the plethora of evidence placed before me, nor to the careful expert opinions with which I have been favoured over some days, nor to the diligence of both legal teams. But I believe that that concision on my part is appropriate in this case, because of my firm view about the entirely separate normative judgment.
To repeat: it is incumbent upon the accused to establish on balance that any impairment to either of the two relevant capacities was so substantial as to warrant reduction in his culpability from murder to manslaughter.
The following contingent analysis proceeds on the assumption that all of my findings so far about the partial defence are wrong, and that it is indeed the case that the evidence placed before me establishes on balance that the accused was suffering from an impairment that should be evaluated as substantial, either to his capacity to understand events, or to his capacity to control himself, or both.
Even so, I am firmly of the view that community standards do not accord with acceptance of the affirmative proposition that the ultimate outcome of this trial should be a verdict of guilty of manslaughter as opposed to murder. I say that for the following reasons.
First, I have reflected at length on whether the homicide was attended by planning and deliberation; for example, the possible locking of both doors of the apartment by the accused, the possible deliberate cutting of her wrist in a calm, determined effort to bring about death. I have also reflected whether the version of events given by the accused whereby the interaction commenced when the deceased fortuitously dropped a knife in the kitchen has been established as a deliberate lie. My ultimate conclusion is that those factors, and other similar possibilities, have not been “established” by the Crown. I proceed on the basis, favourable to the accused, that, apart from the telephone call to Menindee, the offence was unplanned and committed in an extended frenzy.
Secondly, I have also reflected whether it has been “established” by the Crown that the accused has told deliberate, calculated lies at any stage, in particular to police or forensic psychiatrists. Again, after reflection, I answer in the negative.
Thirdly, I have reflected whether modern Australian community standards would take the view that the “chemical injury” that the brain of the accused had suffered was simply of his own making, and that his mood disorder is to be thought of in the same way, because of his flat refusal to address his dependencies constructively, with resultant deprivation and degradation and unhappiness in his life. After reflection, I think that modern Australian society largely accepts the sad destruction of addiction as being a matter of illness and compulsion, not self-indulgent choice. In short, I do not approach the matter in that morally judgmental way.
Fourthly, even so, the deceased was ferociously stabbed to death over 30 times in her own home. There was unquestionably an intention to kill. Her death was utterly undeserved. By any modern standard that accords sexual autonomy to women, it was completely unprovoked and without the slightest justification. Her ordeal was to some degree extended, it was terrifying, and it was excruciatingly painful. As I have said, she was begging for her life, pleas that were mercilessly disregarded.

Fifthly, the offence was committed on the day that an AVO had been extended by a judicial officer in a formal setting, and on the day before the deceased was to commence a new life with a man whom she loved, and whom she had described to her sister Sylvia as “a gem”. The homicide was not only an act of defiance of a court order designed to defend a citizen in need of protection. It was also an act of termination of the life of a woman who was simply seeking to find happiness with one man as opposed to another. It is to be recalled that the deceased had said to a domestic violence worker “I feel strong and I’m leaving” at the courthouse. The homicide can readily be seen as an act of intense patriarchal oppression that has no place in modern Australian society. To express that concept in plain English, I think that members of the community would see this homicide as simply yet another example of a man killing a woman because she dared to disobey him.
Sixthly, on a simple but I believe compelling analysis, on 6 October 2018 the accused had threatened to do very serious violence to the deceased if she continued her romantic relationship with another man. A little over a month later, he did precisely that.
Seventhly, the phone call that the accused forced the deceased to make to her sister very shortly before the homicide means that for the rest of her life Mrs Moya Reid will live with the experience of the violent death of the deceased, hundreds of kilometres away, against which she was powerless to do a thing. That would surely weigh significantly in the judgment of members of the community.
Relatedly, I also believe that members of the community would recoil in revulsion from the statement made by the accused over the telephone to the same woman about her sister, who was obviously in mortal danger; namely, that he would “fucking kill her, I’ll cut that cunt’s throat as soon as look at her”.
Eighthly, 40 years ago, in a different century, attitudes to domestic violence, and in particular acts of fatal violence by men against women, were perhaps thought of as a regrettable but inevitable part of Australian life. In 2020, I believe, members of the community regard such acts as a scourge upon the lives of the people of this country.
Ninthly and finally, the fatal act of the accused that evening would be readily assessed by members of the community, I believe, as horrific and atrocious. I am affirmatively satisfied that community standards would not call, on balance, for mitigation in the culpability of the accused from murder to manslaughter, even if the correct evaluation were that either or both of the relevant capacities had been substantially impaired. Indeed, on all of the evidence, I believe that the judgment of the community would be firmly condemnatory. So is mine.

Verdict

With regard to the indictment presented on 28 September 2020 alleging that on 12 November 2018 Paul Thomas Ryan murdered Maree Van Beers, I return the verdict: guilty of murder.

Directions to Jury M (Doc 1) (142804, pdf)

Directions to Jury SI (Doc 2) (142021, pdf)

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Amendments

15 October 2020 - Attached Document 1 and Document 2

Decision last updated: 15 October 2020

Medium Neutral Citation:	R v Ryan (No 3) [2020] NSWSC 1421
Hearing dates:	28 September 2020 – 14 October 2020
Decision date:	15 October 2020
Jurisdiction:	Common Law
Before:	Button J
Decision:	Verdict of guilty of murder
Catchwords:	CRIMINAL LAW – murder – trial by judge alone – plea of not guilty to murder but guilty to manslaughter – accused relied upon partial defence of substantial impairment – fatal domestic violence stabbing – accused subject to AVO – intention to kill – accused suffered from brain damage caused by chronic alcohol abuse – accused suffered from mood disorder – acceptance of some impairment of capacity to understand events and capacity to control oneself – failure to establish either impairment substantial – contingent consideration of whether impairment was so substantial as to warrant reduction in liability from murder to manslaughter – discussion of community standards with regard to fatal domestic violence – verdict of guilty of murder returned
Legislation Cited:	Crimes Act 1900 (NSW), s 23A Evidence Act 1995 (NSW), s 165
Category:	Principal judgment
Parties:	Regina (Crown) Paul Ryan (Accused)
Representation:	Counsel: B Campbell (Crown) J Watts (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Accused)
File Number(s):	2018/347939