Cohrs v Cohrs
[2022] VSC 474
•19 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
CIVIL CIRCUIT LIST
S ECI 2019 05265
| JULIE MAREE COHRS | Plaintiff |
| v | |
| PAUL ANTHONY COHRS | Defendant |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 August 2022 |
DATE OF RULING: | 19 August 2022 |
CASE MAY BE CITED AS: | Cohrs v Cohrs |
MEDIUM NEUTRAL CITATION: | [2022] VSC 474 |
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PRACTICE AND PROCEDURE — Adjournment application — Evidence that the defendant has a delusional disorder — Whether defendant so incapable of managing his affairs in relation to the proceeding — Evidence that defendant’s condition will improve with treatment — Defendant currently remanded in Thomas Embling Hospital for treatment— Supreme Court (General Civil Procedure) Rules 2015 r 15 — R v Cohrs [2022] VSC 334.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | B Dooly SC with C O’Sullivan | Maloney Anderson Legal |
| For the Defendant | C Spitaleri | Garland Hawthorn Brahe Lawyers |
HIS HONOUR:
The plaintiff was married to the late Raymond Cohrs.
The plaintiff brings this proceeding against the defendant pursuant to the provisions of the Compensation to Relatives Act 1897 (NSW) in relation to the death of Raymond Cohrs (‘Deceased’).
The plaintiff alleges the defendant shot the Deceased with a firearm causing his death.
The defendant is charged in Victoria with the murder of Bette Schulz. There is a current proceeding in the Criminal Trial Division of this Court in relation to that murder charge (‘Criminal Proceeding’).[1]
[1]Proceeding no S ECR 2019 0170.
In June this year, Taylor J ruled in the Criminal Proceeding that under s 14E of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘Act’) the defendant was unfit to stand trial.
The trial of this proceeding is currently listed on 22 August 2022.
The defendant has recently instructed lawyers to appear for him in the proceeding. The defendant’s lawyers have applied to adjourn the trial until the conclusion of the Criminal Proceeding and list the proceeding for directions on a date after 22 February 2023.
The defendant’s lawyers raised two issues. First, that there is a real and substantial risk that any determination of this proceeding would prejudice the defence of the criminal charges.
Second, that the defendant is suffering from a delusional disorder and is, for that reason, a person under a disability for the purposes of r 15 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).
The plaintiff opposed the defendant’s application.
Background
The defendant is the son of Bette Schulz, and the brother of the Deceased.
The Crown case against the defendant in the Criminal Proceeding is summarised in the ruling of Taylor J delivered on 17 June 2022 about whether the defendant is unfit to stand trial.[2] The Crown case includes that on 30 October 2018 at a property called Lake Victoria Station, located in south-west New South Wales, the defendant discharged a firearm at the Deceased four times, causing his death. The Crown alleges the defendant then went to the home of Bette Schulz in Red Cliffs, Victoria and discharged a shotgun at her, causing her death. The Crown alleges that later that day the defendant left a handwritten note addressed to his wife, took a loaded shotgun, and discharged it at himself. I otherwise refer to and adopt the summary of the Crown case in the ruling of Taylor J.
[2]R v Cohrs [2022] VSC 334.
The defendant is unrepresented in the Criminal Proceeding. He has not entered a plea to the charge of murder of Bette Schulz.
A charge or charges against the defendant in relation to the death of the Deceased have been filed but not served. It appears those charges may not progress until the conclusion of the Criminal Proceeding in Victoria.
There is no direct evidence before me about what charges the defendant will face in New South Wales. However, I infer, for the purposes of this ruling, that they will include a charge of murder of the Deceased.
Psychiatric evidence
Evidence was given at the unfitness to plead hearing before Taylor J in the Criminal Proceeding by two psychiatrists, Dr Maria Triglia and Dr Danny Sullivan. Reports prepared by Dr Triglia dated 18 August 2021, and Dr Sullivan dated 21 November 2021 were tendered as exhibits to an affidavit made by the defendant’s lawyer.
Dr Triglia said in her report it was likely the defendant had a diagnosis of delusional disorder.
The criteria for fitness to plead in the Criminal Proceeding are set out in s 6(1) of the Act:
(a)unable to understand the nature of the charge; or
(b)unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or
(c)unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or
(d)unable to follow the course of the trial; or
(e)unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or
(f)unable to give instructions to his or her legal practitioner.
Dr Triglia found the defendant unfit on criteria (c) and (e), and could not form a conclusion on criteria (f).
As to criteria (f), Dr Triglia said:
Mr Cohrs is unrepresented and I am not aware of the nature of his interactions with his prior legal representatives so cannot comment about his ability to give instructions. I have concerns that his prior instructions were based on delusions, and that this was the reason for his dissatisfaction with his representation, but do not have information clearly supporting this.
Dr Sullivan agreed that the defendant suffered a delusional disorder.
Dr Sullivan largely agreed with Dr Triglia’s view on the fitness to stand trial criteria. In relation to the capacity of the defendant to give instructions, Dr Sullivan said:
Mr Cohrs has dismissed his lawyers and expresses concerns that his legal representatives are colluding with other parties against his interests. He is currently unrepresented and has not been able to resolve his mistrust sufficiently to engage lawyers. Consequently, I consider that he is unable to give instructions to his legal practitioners because he has not been able to overcome his concerns that they are not in fact acting in his best interests.
When he was assessed by Dr Triglia and Dr Sullivan, the defendant was on remand in Port Phillip Prison. He was not being treated for his psychiatric condition, and was resistant to treatment.
Dr Triglia and Dr Sullivan both recommended the defendant engage with treatment, and said if that occurred he could be fit to be tried within 12 months.
Criminal Proceeding
In the June ruling in the Criminal Proceeding, Taylor J found the defendant was not fit to stand trial, but with treatment was likely to become fit in six months. Taylor J adjourned the Criminal Proceeding for six months, and ordered that the defendant be remanded in custody at Thomas Embling Hospital for that period pursuant to s 14F(2)(b) of the Act.
The defendant has been remanded in Thomas Embling Hospital for some time. No information was available to me from the hospital about the treatment administered to the defendant to date, his response to the treatment, current condition or prognosis.
Procedural matters
This proceeding was commenced by the plaintiff filing a writ and statement of claim on 20 November 2019.
There are a number of associated proceedings in this Court involving claims by other plaintiffs against the defendant arising out of the deaths of the Deceased and Bette Schulz, family law settlement proceedings between the defendant and his wife, and a proceeding in the Corporations List involving resolution of business arrangements and division of assets between the defendant and the Deceased.
The plaintiff’s lawyer, Leigh Anderson, in an affidavit sworn 13 July 2022, said:
(a) Agreement had been reached among the creditors and claimants against the defendant about their respective shares to the money available to be recovered from the defendant.
(b) The value of claims against the defendant was likely to far exceed money and assets owned by him.
Anderson estimated the plaintiff and persons claiming damages for personal injury against the defendant were likely to receive 25 cents in the dollar of the value of their claims. Those claimants would have to pay their own legal costs from the amounts they received.
Until recently the defendant has been unrepresented in this proceeding and the associated proceedings. His lawyers filed a notice of appearance on his behalf on 6 July 2022.
The defendant has not filed a defence or taken any other positive steps in the proceeding to defend the claim brought by the plaintiff.
On 13 July, shortly after the defendant instructed his lawyers in this proceeding, I adjourned the trial from 18 July to 22 August 2022. I further ordered that the defendant file and serve any defence by 2 August, and all other documents on which he wished to rely at the trial of the proceeding by 9 August. The defendant has not filed a defence or any other document relevant to trial.
Before instructing lawyers, the defendant represented himself at directions hearings. The transcript of a lengthy directions hearing before Riordan J on 16 May 2022 appears to show the defendant was able to engage coherently with issues.
The defendant’s lawyer, John Price, has conferred with him at Thomas Embling Hospital on two occasions, and has spoken to him by telephone. In his affidavit dated 12 August 2022, Price said:
As a result of my contact with my client, my opinion is that my client does not have capacity to properly participate in this matter and provide me with instructions.
Submissions
Defendant
The allegations in this proceeding are substantially identical to those in the criminal proceedings that have been filed against the defendant. The defendant has consistently said he will plead not guilty to the criminal charges. Proceeding with the civil trial would operate as a ‘dress rehearsal’ for the criminal trial, resulting in a risk of prejudice and an unacceptably unfair criminal trial.
The defendant does not presently have the capacity to give instructions. Until a litigation guardian is appointed, or the defendant regains capacity, no further steps can be taken in the proceeding.
Plaintiff
There is no evidence that the defendant denies doing the act that resulted in the Deceased’s death. It is unclear what evidence the defendant would give, or how this might amount to a defence.
The defendant cannot be compelled to give evidence. It is not the plaintiff’s intention to call or in any other sense require the defendant to give evidence. If the defendant chooses to give evidence, he can obtain a certificate under s 128(5) of the Evidence Act 2008 (Vic) (‘Evidence Act’).
The defence, if any, is presumably one of mental incapacity. Such a defence will require medical evidence. None has been produced by the defendant. If the defendant were to give evidence about his mental state, it is different in nature from what would be required in a criminal trial.
The plaintiff has already had to live with the circumstances that resulted in her husband’s death for four years. It is not in the interests of justice that her claim in this proceeding be delayed indefinitely, until after the criminal proceedings in Victoria and New South Wales have completed.
There is no evidence the defendant lacks capacity in respect of the trial of this proceeding. He now has solicitors acting for him. The trial will be short. Liability is uncomplicated. The transcript of the directions hearing before Riordan J indicates the defendant understands the case against him and the court process. The reports of Dr Triglia and Dr Sullivan are now out of date. The defendant has been treated for some time at Thomas Embling Hospital. There is no material from that hospital.
Analysis
There are a number of factors which, in combination, lead to the conclusion that it is necessary, in the interests of justice, to adjourn the trial.
First, there is a real issue about whether the defendant is a person under a disability for the purposes of r 15 of the Rules. The evidence of Dr Triglia and Dr Sullivan is that the defendant suffers from a delusional disorder. The test of unfitness to be tried under s 6 of the Act differs from the test in r 15.01 of the Rules. However, the issues identified by Dr Triglia and Dr Sullivan are likely relevant to an assessment under r 15.01. The Criminal Proceeding and this proceeding are based on the same factual matrix. I take account of the plaintiff’s submission about the defendant’s apparent capacity to engage with the issues discussed at the directions hearing before Riordan J in May this year. However, this simply indicates there may be factors pulling in different directions relevant to the defendant’s capacity.
Second, the defendant is currently remanded in Thomas Embling Hospital and is, I understand, being treated for his mental condition.
Third, Price has not been able to obtain instructions from the defendant.
Fourth, there is no material available from Thomas Embling Hospital.
Fifth, the defendant’s fitness to be tried will be considered again in the relatively near future. It seems likely that consideration will be assisted by evidence from Thomas Embling Hospital. Consideration of the defendant’s capacity to manage his affairs in relation to this proceeding will be assisted by the period of treatment in Thomas Embling, and evidence from the hospital.
Adjournment of this proceeding to a date to early next year will allow a determination to be made about the question of capacity after treatment has been administered to the defendant and up-to-date relevant evidence is available.
I am conscious that the plaintiff is prejudiced by the further delay of the trial, costs thrown away, and the personal cost that comes from involvement in litigation of this nature. However, I conclude that it is appropriate to determine the defendant’s application for a stay on the adjourned date in early 2023. As things currently stand, it is speculative to suggest that the defendant will be prejudiced in a criminal trial by having to first face a trial in this proceeding. The defendant’s statements that he will plead not guilty in the Criminal Proceeding, and defend this proceeding, were made at a time when, in the opinions of the psychiatrists, he was suffering a delusional disorder and was unfit for trial. It is for the defendant to establish grounds for a stay. Whether there is a real risk the defendant will be prejudiced by the trial being heard in this matter before the Criminal Proceeding is completed, the extent of any prejudice and what steps can be taken to protect the defendant from prejudice are all uncertain. What can be said with certainty is that prejudice to the plaintiff is increased by further delay.
I will make the following orders:
(1)The trial listed on 22 August 2022 is vacated.
(2)The proceeding is listed for a directions hearing at 9:30am on 6 February 2023.
(3)Costs of the defendant’s application, and costs thrown away by reason of adjournment of the trial, are reserved.
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