R v Cohrs (No 3) [2023] VSC 334 (16 June 2023)

Last Updated: 19 June 2023

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0170

THE KING	Crown
v
PAUL ANTHONY COHRS	Accused

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JUDGE:	Taylor JA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2023
DATE OF JUDGMENT:	16 June 2023
CASE MAY BE CITED AS:	R v Cohrs (No 3)
MEDIUM NEUTRAL CITATION:	[2023] VSC 334

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CRIMINAL LAW – Accused charged with murder – Accused unrepresented – Accused previously found to be unfit to stand trial – Accused previously found to become likely to become fit within 12 months – Accused remanded at Thomas Embling Hospital for twelve months – Unanimous psychiatric evidence that accused now fit to be tried – Trial to resume in accordance with usual criminal procedures – Trial to commence within three months – Accused remanded in custody – Whether place of custody can remain Thomas Embling Hospital – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss 1, 3, 6, 10, 14F, 14H and 47.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M Mahady	Office of Public Prosecutions
For the Accused	The accused appeared in person

HER HONOUR:

Background

1 The accused is charged with murder. A summary of the Crown case is set out in previous decisions of this Court.^[1]
2 The accused is and has at all material times been unrepresented.
3 On 21 June 2021 I reserved the question of the accused’s fitness to stand trial for investigation under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘Act’) and ordered that he undergo examination by a registered medical practitioner at the request of the Court, as well as a registered medical practitioner appointed by the Crown, should the Crown seek its own assessment.^[2] Both experts agreed that the accused was at the time unfit to stand trial. He was diagnosed as having a delusional disorder, persecutory type. Its effects meant that he was then unable to understand the nature of the trial and the substantial effect of the prosecution evidence. One expert said that the accused was also then unable to give instructions. Both experts also agreed that the accused, who had declined treatment by way of antipsychotic medication in prison, would likely become fit if he were to receive that treatment, potentially compulsorily, at Thomas Embling Hospital (‘TEH’).
4 On 17 June 2022 I found the accused unfit to be tried but likely to become fit within 12 months if treated for his delusional disorder.^[3] I ordered that the accused be remanded at TEH for six months, being the period for which facilities were available for him to undergo treatment. At the end of that adjournment period, the accused was examined by a registered medical practitioner at the request of the Court. That assessment noted some improvement in the accused’s condition but again raised a real and substantial question of the accused’s fitness.^[4]
5 On 15 December 2022 I heard a further investigation into the fitness of the accused to stand trial. At the conclusion of that hearing, I found him unfit to stand trial but likely to become fit within six months following further treatment for his delusional disorder at TEH.^[5] Accordingly, I ordered that the accused be remanded at TEH for a further six months. That period of adjournment expired on 15 June 2023.
6 On 13 June 2023, the matter came before me for a further hearing. Prior to the hearing, the accused was examined by Dr David Trainor, at the request of the Court and Dr Danny Sullivan, engaged by the Crown. Both experts were of the view that the accused’s delusional disorder had sufficiently attenuated that he now met all six criteria in s 6(1) of the Act.

The reports

7 It is convenient to briefly set out the findings of each registered medical practitioner.

Dr Trainor’s report

8 Dr Trainor’s report dated 6 June 2023 is to be read in conjunction with the reports of Dr Maria Triglia prepared in respect of the accused, dated 18 August 2021 and 8 December 2022.^[6] I have had regard to those reports. Dr Trainor interviewed the accused in person for 90 minutes and via video-link on a subsequent occasion for 60 minutes. He also reviewed the accused’s medical file and spoke with his treating psychiatrist prior to preparing the report.
9 The accused told Dr Trainor that he liked TEH, felt safe there and believed that unlike prison, he is treated with respect. He was able to engage in hobbies to pass the time and to perform daily living activities. He has had contact with some family members and friends. However, his medical file noted that his self-care fluctuates during high stress periods and he has declined in functionality, including personal care and cognition, since coming to TEH.
10 The accused said he had seen a psychologist twice since being at TEH but stopped as he ‘didn’t really need it...it wasn’t going anywhere’. His mood was self-described as ‘okay.’ He expressed some anxiety about his legal matters, difficulty sleeping and low motivation, the latter of which he attributed to antipsychotic medication.
11 The accused denied presently experiencing hallucinations, delusions of reference, thought interference or passivity phenomena. He did not hold any belief that he had special powers.
12 The accused has taken the antipsychotic aripiprazole (Abilify) since his admission to TEH and in addition commenced the antipsychotic lurasidone (Latuda). He also takes supplements and medication for diabetes, heart disease, lung disease, high cholesterol and other conditions. The accused reported that he fell twice in about January 2023 and was admitted to hospital for suspected delirium, possibly due to COVID-19. He recalled seeing visions ‘like a TV show’ at night, which resolved after his hospital admission. His hospital records noted that he presented with slurred speech and visual hallucinations, but these symptoms quickly resolved. He has had no falls since.

Mental state examination

13 Dr Trainor is of the view that the accused meets criteria for delusional disorder, persecutory subtype. An alternative diagnosis of paranoid personality disorder is unlikely, as the accused has maintained trusted friends and relationships, has worked successfully for years with others and formed reasonable relationships with his treating team.
14 At the interview, Dr Trainor noted the accused’s belief that the entire Victorian judicial system, the government and prison system were corrupt and biased against him. The accused continued to believe that his deceased mother and brother were responsible for persecuting him. Dr Trainor noted that despite treatment with two antipsychotic drugs, these particular delusional views had not abated.

Assessment of fitness to stand trial

15 Dr Trainor found that whilst the accused’s mental processes are disordered and impaired due to his delusional thinking caused by a delusional disorder, this does not now materially impair his fitness to stand trial. He accordingly considered the accused fit to stand trial in relation to all six of the criteria in s 6(1) of the Act.
16 Dr Trainor noted that the accused demonstrated the capacity to understand the nature and severity of the charge against him.^[7] He knew he had been charged with the murder of his mother and was aware that this was a ‘very serious charge.’ If found guilty he knew he ‘would go to prison for a long time.’
17 Dr Trainor also noted that the accused demonstrated an understanding of what it meant to enter a plea of guilty, not guilty, or not guilty by reason of mental impairment.^[8] He identified to Dr Trainor the plea he wished to enter. The accused also demonstrated a good understanding of the role of a jury and had the capacity to challenge a juror.^[9] He described the role of the jury, believed the jury were impartial and was aware he could challenge a juror to ‘get them off the jury’.
18 Although he thought that any trial would be unfair due to corruption, the accused understood the purpose of a trial in general terms, including the roles of those involved.^[10] The accused said the purpose of a trial was to ‘establish the facts’ and the judge’s role was ‘to be fair and impartial’ but did not think he would have a fair trial as the court system was ‘corrupt’. In this regard, Dr Trainor stated that:

[The accused] holds the delusional belief that without the law firm in Adelaide representing him, the trial would be unfair and bias (sic) against him. He thinks this as, in his view, the entire justice system in Victoria is corrupt, and that evidence supportive of his defence is being deliberately withheld. Despite this, he clearly understands the roles of the various people involved in a trial generally and what they should do, and knows why the trial would be taking place, such that it is my opinion that he has the ability to understand the nature of a trial in a basic sense, namely that it is an inquiry as to whether he committed the offence.

19 Dr Trainor stated that the accused was able to follow the course of the trial^[11] as he did not have any evident short- or long-term memory deficit, could retain information presented to him and follow proceedings during previous court appearances. He considered that the accused:

...would find the course of the trial harder to follow owing to a lack of legal representation. While his treating team have wondered whether he may be showing early signs of cognitive decline, he is still functioning independently, and capable of engaging in discussions regarding his treatment, in which he is required to understand and retain information. He has performed adequately in recent cognitive testing. There were no issues with distractibility or concentration during our interviews.

20 Dr Trainor also found the accused able to understand the effect of evidence in support of the prosecution.^[12] Whilst he disagreed with the factual basis of the evidence against him, the accused had a basic understanding of the concept of evidence, and in his specific case knew what evidence existed for the prosecution, what the strongest evidence was likely to be, and the likely effect this would have on the jury.
21 Finally, Dr Trainor was of the opinion that the accused was unwilling – but not unable – to give instructions to a legal practitioner from Victoria. He was willing and able to instruct a lawyer from South Australia. Dr Trainor noted that the accused remained unrepresented due to his delusional belief that no lawyer in Victoria would represent him adequately as the Victorian justice system was corrupt. However, he trusted a law firm in Adelaide and indicated a willingness to instruct them. Dr Trainor stated:

I believe that he is capable of instructing any lawyer, in the sense that he could let his version of events be known, answer questions from counsel, and provide instructions for his defence, even if the content of his instructions may not represent his best interests, and may be at least in part influenced by delusional thinking.

22 Dr Trainor considered that if the accused were to conduct his trial unrepresented, he would be able to let the court know his wishes, including what defence he wanted to make, and the evidence that he wanted to rely on.
23 Importantly Dr Trainor added that the clinical improvement in the accused’s condition since his remand at TEH was likely due to his adherence to antipsychotic medication. The accused would ‘probably stop taking his antipsychotic medication’ if returned to prison as he demonstrated little insight into his illness and the need to adhere to treatment. This could lead to a deterioration in his mental state which could potentially adversely affect his fitness to stand trial.
24 I note that Dr Trainor’s report was accompanied by a certificate of available services from Forensicare prepared pursuant to s 47 of the Act and dated 8 June 2023. The certificate stated that a bed was available for the accused to remain on forensic remand at TEH for the purpose of maintaining his fitness for the duration of his trial. The certificate would expire at the conclusion of the accused’s trial.

Dr Sullivan’s report

25 Dr Sullivan’s report is dated 8 June 2023. Dr Sullivan met with the accused at TEH for 60 minutes for the purposes of his assessment. He also reviewed the accused’s medical records.
26 The accused told Dr Sullivan that he that he was currently taking the antipsychotic drugs aripiprazole (20 mg) and lurasidone (increased to 120 mg in the last eight weeks). His treating psychiatrist had selected aripiprazole as it had the least side effects, but the accused reported that he did experience tremor, constipation and sleepiness and felt that he had reduced drive.
27 The accused reported no thoughts of self-harm or suicide since his admission to TEH, and no problems with other patients. He reported adequate energy levels and no significant health problems besides an episode of pancreatitis and consequent laparoscopy.

Mental state examination

28 Dr Sullivan remained of the view^[13] that the accused meets criteria for a diagnosis of delusional disorder, persecutory type. The level of fixity of his beliefs appeared reduced since commencing antipsychotic medication. Dr Sullivan described the accused as being ‘less digressive than at [his] last review’ and that he reported ‘ongoing concerns about judges and lawyers, but was less preoccupied than previously.’
29 Dr Sullivan remained concerned that the accused also has underlying paranoid personality traits, but said that there were collateral sources of information (such as his demeanour and interactions with staff at TEH) which meant this diagnosis could not be reliably discerned. The accused did not appear to have any gross cognitive deficit suggesting cognitive impairment. His decline in self-care likely reflected his situation and the effects of being in a long-stay psychiatric hospital, rather than incipient dementia or organic brain disease.
30 Dr Sullivan did not consider that the accused would meet criteria for a mood disorder or other significant mental health diagnosis.

Assessment of fitness to stand trial

31 Dr Sullivan considered the accused fit to stand trial in relation to all six criteria in s 6(1) of the Act. He found that the accused’s delusional disorder had attenuated to a degree where he could participate meaningfully in a trial. Further, his remand at TEH had permitted observation and exploration of potential cognitive impairment and this did not appear to be a current concern.
32 Dr Sullivan was of the view that the accused understood the nature of the charge against him.
33 Dr Sullivan considered that the accused could enter a plea to the charge and exercise his right to challenge jurors. The accused understood the meaning of pleas and remained focused on his mental state at the time of the alleged offending, and its relation to his plea. He expressed a clear understanding of the roles of jurors and the jury.
34 Dr Sullivan also considered that the accused’s delusional beliefs did not now prevent him understanding the nature of the trial. Dr Sullivan noted that whilst the accused remained preoccupied with his trial and civil proceedings, he now holds a clear understanding of the trial. In this regard, Dr Sullivan said:

He continues to express concerns that there is unfairness, but I do not consider that his reflections on this prevent him from understanding the nature of the trial. His reflections are not premised upon some systemic misapprehension of the legal process, but rather the concern that there is bias against him. I consider that this is significantly due to his refusal to accept legal representation, as many of his concerns appear due to misunderstanding of legal procedures and are not due to disordered mental processes.

35 Dr Sullivan was satisfied that the accused could follow the course of a trial. He noted that the accused communicated clearly and sensibly, and is not cognitively impaired.
36 Dr Sullivan considered that the accused understood the substantial effect of the evidence. Compared with his earlier presentation, he now appeared inclined to contest evidence rather than to dispute its provenance.
37 Dr Sullivan was also of the opinion that the accused could instruct legal representatives but chose not to do so. This choice was not a result of disordered mental processes. Dr Sullivan noted that the accused:

...remains preoccupied that one firm of lawyers should represent him and that no Victorian firm can do so. In the event that the South Australian firm were funded, he expressed willingness that he would brief them. I have changed my opinion on this issue having met with him again. I consider that in part this represents a reduction in the fixity of his beliefs about Victorian firms, but also that he is increasingly focussed upon his perceived entitlements to legal representation rather than the idea that cohorts of legal representatives are biased or corrupt.

38 Both Dr Trainor and Dr Sullivan attended the hearing but were not required to give oral evidence.

Submissions of the parties as to fitness

39 The prosecution submitted that the Court should accept the expert opinions of Dr Trainor and Dr Sullivan that the accused was now fit to stand trial and that the accused’s trial should commence in accordance with usual criminal procedures.
40 The accused accepted the evidence of Dr Trainor and Dr Sullivan. He was afforded, but declined, the opportunity to cross-examine them. When directly asked, the accused said he understood that the effect of the evidence was that he would stand trial in accordance with usual criminal procedures.

Discussion

41 At the end of an adjournment period ordered pursuant to s 14F(2) of the Act, an accused is presumed to be fit to stand trial unless a real and substantial question of fitness is raised again.^[14]
42 No real and substantial question of fitness is raised on the evidence before me. The evidence unanimously establishes that the effect of the accused’s delusional disorder on his mental processes has sufficiently attenuated to the extent where he is fit to stand trial. Neither party disputed that evidence. I accept that evidence.
43 It follows that the statutory presumption of fitness in s 14H(1) of the Act applies and the trial of the accused must be commenced within three months.^[15]

Custody

44 I note Dr Trainor’s recommendation that the accused remain at TEH until the conclusion of his trial. Dr Trainor expressed concern about the potential deterioration in the accused’s mental health should he be returned to prison where it was probable he would become non-compliant with the antipsychotic medication. As noted above, Dr Trainor’s report was accompanied by a certificate under s 47 of the Act stating that the accused could remain at TEH until the conclusion of his trial.
45 The prosecution submitted that the accused should remain at TEH, especially given the comments of Dr Trainor. The accused submitted that he wished to do so on the basis of his health concerns and the preparation required to represent himself at his trial.
46 TEH is an ‘appropriate place’ under the Act, by virtue of its characterisation as a designated mental health service.^[16] The Court’s powers under the Act to remand an accused at TEH are expressly limited to specific circumstances.^[17] Generally they pertain to circumstances where an accused person is not presumed to be fit and where that person is receiving treatment or awaiting a disposition as a result of their unfitness to stand trial. I note specifically that the Court has no express power under the Act to remand an accused person at an ‘appropriate place’ once that person is presumed to be fit to stand trial at the end of an adjournment period and is awaiting the commencement of their criminal trial.
47 Section 47 of the Act provides that if a court is considering making ‘another order’^[18] under the Act that a person be placed in custody in a designated mental health service, it must request a certificate of available services before doing so.
48 In the absence of a specific power to remand the accused at an ‘appropriate place’ and given the types of circumstances in which the Court may exercise such a power, I am not satisfied that the reference to ‘another order’ in s 47 could be read so widely as to include an order under s 14H(4)(b) that the accused’s trial commence within 3 months. Such a reading would not accord with the purposes of the Act, which include, relevantly, to ‘provide new procedures for dealing with people who are unfit to stand trial or who are found not guilty because of mental impairment.’^[19]
49 Despite the availability of services for the accused at TEH and the obvious desirability of supporting the accused to maintain his current state of mental health, I am not satisfied that this Court has the power to order that the accused continue to be remanded at TEH upon the expiry of the adjournment period.
50 Accordingly, I will remand him in custody.
51 That said, I note that in a further written submission filed, by invitation, after the conclusion of the hearing on 13 June 2023, the prosecution advised the Court that if the accused was remanded to custody in a prison Forensicare could recommend to the Department of Justice and Community Safety that he be assessed for a Secure Treatment Order under s 276 of the MHA.
52 That is not a matter for this Court. However, I note only that every effort should be made, and made speedily, to support the accused’s well-being. And, as an unrepresented accused, his reasonable requirements to prepare his defence should also be readily facilitated.

Conclusion and orders

53 The accused is fit to stand trial.
54 The orders of the Court will be as follows:
1. In accordance with s 14H(4)(b) of the Act, the matter is to be listed for trial within 3 months.
2. The accused is remanded in custody.

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^[1] See R v Cohrs [2022] VSC 334 (‘Cohrs No 1’) and R v Cohrs (No 2) [2022] VSC 784 (‘Cohrs No 2’).

^[2] Act, s 10(1)(d)–(e).

^[3] The reasons for this finding are detailed in Cohrs (No 1).

^[4] Act, s 14H(1).

^[5] The reasons for this finding are detailed in Cohrs (No 2).

^[6] The reports of Dr Triglia were prepared at the request of the Court prior to the previous investigations into the fitness of the accused to stand trial discussed above. These reports are discussed in Cohrs (No 1) and Cohrs (No 2).

^[7] Act, s 6(1)(a).

^[8] Act, s 6(1)(b).

^[9] Act, s 6(1)(b).

^[10] Act, s 6(1)(c).

^[11] Act, s 6(1)(d).

^[12] Act, s 6(1)(e).

^[13] Dr Sullivan previously prepared a report dated 21 November 2021 at the request of the Crown prior to the first investigation into the accused’s fitness to stand trial. That report is discussed in Cohrs (No 1).

^[14] Act, s 14H(1). If this question were raised again in this proceeding, I note that the matter could not be adjourned again as the total period since the first finding of unfitness must not exceed 12 months: Act, s 14H(4).

^[15] Act, s 14H(4)(b). Section 14H(5) allows the period of time within which the trial must commence to be extended for a further period not exceeding three months. Section 14H(6) allows an extension under s 14H(5) to be made more than once.

^[16] Act, s 3. Section 3(1) of the Mental Health Act 2014 (‘MHA’) defines a ‘designated mental health service’ to include the Victorian Institute of Forensic Mental Health (trading as ‘Forensicare’), which provides services at TEH.

^[17] These are, to name a few, when a court may make orders pending an investigation into an accused’s fitness (s 10 of the Act); when, at the conclusion of an investigation, an accused is found unfit to stand trial by either a judge or a jury and the matter is adjourned (ss 12 and 14F of the Act, respectively) and when a court may make orders pending the making of a supervision order in respect of an accused (ss 19 and 24 of the Act).

^[18] That is, not a supervision order imposed on an adult person or a child: see ss 47(1)(a) and (ab).

^[19] Act, s 1(c) (emphasis added).