In the matter of an Application for a change of venue by Paul Cohrs
[2023] VSC 752
•14 December 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: | 11 December 2023 |
DATE OF RULING: | 14 December 2023 |
CASE MAY BE CITED AS: | In the matter of an Application for a change of venue by Paul Cohrs |
MEDIUM NEUTRAL CITATION: | [2023] VSC 752 |
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CRIMINAL LAW — Application for change of venue of trial — Accused charged with murder — Accused previously an elected local government official — Alleged victim mother of the accused— Significant publicity — Accused’s mental health fragile — Whether fair trial possible — Whether transportation from custody to trial court would cause undue stress — Whether accused’s mental health would deteriorate — Application for change of venue granted.
Criminal Procedure Act 2009, s 192.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Mahady | Office of Public Prosecutions |
| For the Accused | Mr L Richter | Stary Norton Halphen |
HER HONOUR:
Introduction
The accused is charged with murder.
His trial is currently listed to commence on 30 January 2024 in Mildura.
By application dated 30 November 2023 the accused seeks an order to change the venue of the trial from Mildura to Melbourne. He does so on three bases:
(a) He cannot get a fair trial in Mildura.
(b) Transportation would cause him undue distress.
(c) Concerns that his mental health will deteriorate if the trial is held in Mildura.
The Crown does not contest the application.
For the reasons that follow the application is granted.
Procedural history
This is a matter with a significant history.
The alleged offence occurred on 30 October 2018. The same day the accused discharged a firearm at himself, seemingly a suicide attempt. He received medical treatment at Mildura Base Hospital then Alfred Hospital, where he was arrested on 6 November 2018.
The indictment was filed in this Court on 3 September 2019. The Crown filed a Summary of Prosecution Opening on 25 November 2019. The accused was then unrepresented and refused to accept legal representation from any Victorian based lawyer. He did not comply with orders to file a Defence Response. He did file 30 subpoenas on 20 May 2020 addressed to various financial institutions and officers of various companies and institutions seeking documents.[1] His attempt to file further subpoenas on 15 June 2020 was rejected by the criminal registry.
[1]In 2016 Raymond Cohrs, the brother of the accused, commenced civil proceedings in this Court against the accused. Those proceedings were still on foot at the time of the alleged offending. Part of the Crown case against the accused is that on 30 October 2018 he murdered Raymond Cohrs in New South Wales before driving to Victoria to shoot his mother and that the killings took place against a bitter dispute about the family business. On their face, the subpoenas appear to relate to the civil proceedings.
The matter was mentioned for case management on several occasions throughout 2019, 2020 and 2021.
In light of the accused’s presentation, on 21 June 2021 I reserved the question of the fitness of the accused to stand trial for investigation under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1991 (‘CMIA’). That investigation revealed the accused to have a likely diagnosis of delusional disorder. On 17 June 2022 I found the accused unfit to stand trial and likely to become fit in the ensuing 12 months if treated for his disorder.[2] The matter was adjourned for six months, for which period the accused was remanded in custody at Thomas Embling Hospital. On 15 December 2022 I again found the accused unfit to stand trial.[3] The matter was adjourned for a further six months on my finding that he was likely to become fit in that period if treatment of his delusional disorder was continued. Once again he was remanded to Thomas Embling Hospital. On 16 June 2023 I found the accused fit to stand trial.[4] The current trial date was fixed.
[2]R v Cohrs [2022] VSC 334 (‘Cohrs’).
[3]R v Cohrs (No 2) [2022] VSC 784.
[4]R v Cohrs (No 3) [2023] VSC 334.
On 5 September 2023 the accused’s solicitors filed a notice that they act for him. Following resolution of funding difficulties, trial counsel was briefed on 13 November 2023.
Summary of alleged offending
The alleged offending has been previously summarised.[5] For ease of reference, it is here repeated.
[5]Cohrs, [8]-[35].
Background
The accused is the youngest of four siblings. His eldest brother was Raymond Cohrs.
The accused’s father and mother commenced a business named ‘Sunraysia Roofing’ in Mildura and Red Cliffs during the 1970s.
In 1984 the accused’s father took his own life by shooting himself. Thereafter, his mother – the deceased – continued the family business. She did this with the assistance of her children, particularly Raymond.
Over time, the family formed other companies and businesses including ‘Roofing Mildura’, which is wholly owned by Sunraysia Roofing. The various companies have businesses operating in Victoria, South Australia and New South Wales. They also own land in Victoria and New South Wales. Roofing Mildura owns the accused’s riverfront residence at Lake Victoria Station in NSW. In 2015 the annual revenue of Sunraysia Roofing was approximately $5.9 million and that of Roofing Mildura was approximately $8.1 million.
In 1991 the deceased retired from the day-to-day running of the family business. Raymond Cohrs assumed the managerial role.
In 1992 the accused began developing riverfront properties owned by Roofing Mildura. In 1998 this became a tourism business in which the accused worked.
From about 2012, the relationship between the accused and Raymond Cohrs became strained as a result of disagreements about certain business matters. As those disagreements continued and escalated, the deceased began to side with Raymond.
In January 2015 the accused told Raymond Cohrs that he wanted to retire. The tourism business ceased in September 2015. Negotiations as to the financial terms of the accused’s retirement and his access to business accounts became fractious from about early 2016.
In May 2016 the deceased sent a number of emails to the accused. The deceased stated that she did not approve of the manner in which the accused was behaving, that she believed he was responsible for placing the family business under financial pressure by using business accounts for personal expenditure and that he was attempting to destroy the family business.
In response, the accused wrote an email to the deceased in the following terms.
mrs Schultz[6] I have exhausted all other avenues keep your eye on the court news to see how your only son Raymond has been deceiving and stealing from us over the years I will expect an apology
[6]The deceased had remarried in 1990. Thereafter she was known as Bette Cohrs-Schulz.
In July and August 2016 the relationship between the accused and Raymond deteriorated significantly. In September 2016 Raymond commenced legal proceedings against the accused in this Court. The accused made counterclaims. At the time of the alleged offence, these proceedings were still on foot.
During this period the accused came to believe that Raymond was responsible for their father’s death and that the deceased had also been involved.
Also during this period the deceased expressed her fear of the accused to others. In November 2016 she told a friend that the accused had threatened her and she was fearful he would shoot her. In early 2018 the deceased told her son-in-law that the accused would possibly shoot her.
Death of Raymond Cohrs in NSW
In 2018 Raymond organised for the riverfront properties, including that at Lake Victoria Station, to be valued for sale. A real estate agent, Michael Fernandez, was engaged to undertake an appraisal on 30 October 2018.
On 29 October 2018 solicitors’ letters were exchanged as to the arrangement. Raymond’s solicitor wrote that he (Raymond) and Mr Fernandez would attend at Lake Victoria Station at 10am. The accused’s solicitor responded that the accused did not consent to Raymond entering the property, but would allow Mr Fernandez to do so. Raymond’s solicitor replied that Raymond was entitled to access the property.
At about 9am on 30 October 2018 Raymond’s solicitor received a telephone call from another solicitor acting for the accused reiterating that there was no consent for Raymond to attend. Raymond’s solicitor again stated that Raymond was entitled to attend. The phone call ended without agreement.
At about 9.55am Raymond Cohrs and Mr Fernandez arrived at the gate of the Lake Victoria homestead. The accused arrived at about the same time. Mr Fernandez remained in the vehicle while Raymond and the accused spoke outside. Mr Fernandez then exited the vehicle and the accused opened the gate. The accused shook the hand of Mr Fernandez saying ‘what are you doing with this liar and thief?’
The accused then stated that they were going to the shearing shed first. They re-entered the vehicles and drove to the shed. Raymond tried to open the door but it was locked. He and the accused spoke. Mr Fernandez walked around taking photographs.
The accused then obtained a single barrel firearm from his vehicle. From a distance of about 10 metres he twice discharged the firearm at Raymond, who fell to the ground.
The accused told Mr Fernandez to put his telephone in the accused’s vehicle and reassured him that he would not hurt him. The accused said ‘He deserved it. He’s ruined our lives. He’s killing my wife.’ The accused then walked towards Raymond, who was stationary on his back on the ground. The accused said ‘Have you had enough pain yet. What’s it like to feel pain,’ before discharging the firearm at Raymond’s torso. About ten minutes later the accused again discharged the firearm, this time into Raymond’s head.
The accused then handcuffed Mr Fernandez inside the shearing shed and told him that he was going to Mildura and had written a letter for his wife. The accused departed at about 10.15am. He subsequently drove across the NSW/Victoria border.
Death of the deceased in Victoria
The deceased, who was caring for her four-year-old great grandson, had arrived at her Red Cliffs home after shopping just after 11am. The accused arrived there in his vehicle at about 11.30am.
The accused entered the deceased’s home armed with a shotgun. In the kitchen he discharged the weapon once at the deceased. The shot impacted the upper left side of the deceased’s chest and caused her to fall back and land in front of the doorway. The shot killed her.
The accused then left the premises.
Thereafter the accused drove back to the Lake Victoria homestead. En route he called his son, Karl, and said ‘it’s done, it’s over’. He also called the Red Cliffs police station then the Mildura police station, both of which had automated answering services, before calling 000. In that call he said that his ‘grandmother’ had been shot, that he had turned up and found her dead and that someone should go urgently as her five or six year old grandson was there.
The accused also called his daughter, Kellie Ricardi, and told her that he had shot Raymond and the deceased saying ‘don’t worry about me, I’m at peace with what I’ve done’. He telephoned his solicitor and said ‘… it appears the court case is over. I just shot Raymond dead and I’ve also shot my mother dead. I don’t believe that I’ll live the rest of the day out …’.
Upon his arrival at Lake Victoria, the accused released Mr Fernandez and told him to go to the Wentworth police station and inform police that they would find him at Lock 7.
The accused drove to Lock 7, where he and Raymond owned a parcel of land. He left a handwritten note addressed to his wife and took a loaded shotgun. Police arrived at the property at about 3.30pm and observed him walking through the scrub carrying the firearm. They observed him discharge the firearm at himself. He fell to the ground, but was conscious. The accused repeatedly stated ‘I can’t believe I’m not dead’. He also said ‘I just shot my brother and my mum. … They are the most evilest people in the world.’
Relevant legal considerations
Section 169 of the Criminal Procedure Act 2009 (‘CPA’) establishes that a criminal trial in this Court is to be held in the court sitting at the place that is nearest to the place where the offence is alleged to have been committed unless an order is made under s 192.
Section 192 permits the Court to order that the trial be held at any other place it considers appropriate if it considers that a fair trial cannot otherwise be had or for any other reason it is appropriate to do so.
An application for change of venue must be considered on its own merits. In R v Iaria and Panozzo[7] Nettle J quoted with approval the formulation by Pincus JA in R v Yanner:[8]
… the proper rule to be applied is that each case in which an application is made for a change of venue falls to be considered on its own merits and not with any preconceptions, save that a trial should ordinarily proceed in the district in which the offence charged is alleged to have been committed ‘removal being warranted where sufficient cause is shown’.[9]
[7][2004] VSC 96 (‘Iaria’). This case concerned the then s 359 of the Crimes Act 1958 but there is no material difference in the statutory formulation. Other decisions of this Court with respect to s 192 of the Act apply the Iaria test. See, eg, R v Bradley [2015] VSC 257, R v Cardamone [2017] VSC 225 and R v Hague [2017] VSC 716, R v Allan (Change of Venue) [2018] VSC 571.
[8][1998] 2 Qd R 208, (‘Yanner’).
[9]Iaria [2004] VSC 96, [10].
Maxwell P in R v Vjestica[10] said:
[10][2008] VSCA 47, (‘Vjestica’).
[2]Ordinarily, a trial will proceed in the district in which the offence charged is alleged to have been committed. As Lush J explained in Re Ratten,[11] this course is adopted –
so that justice will be seen to be done by those who are interested in seeing it and so that no feeling can arise that justice is done in a distant place and community.
More recently, in DPP v Bennett, Cummins J expressed the view that there were
powerful reasons of public policy why the venue of offence should be the venue of trial. The local community is the community in which the alleged crime took place; it is concerned to have the law administered within it; and to remove a circuit trial to Melbourne can lead the vacated community to feel disenfranchised, marginalised or alienated. All this is common experience. This basal requirement should not be watered down by mere administrative convenience. This is the Supreme Court of Victoria, not the Supreme Court of Melbourne.[12]
[3]But the presumption in favour of a local trial is a rule of practice, not a rule of law. However powerful the considerations favouring a local trial may be, they must give way to the paramount requirement that the defendant have a fair trial. The venue of the trial must be changed if there is a real risk that a trial held locally will not be fair – or will not be seen to be fair[13] - and that risk cannot be eliminated by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.[14]
[4]As Nettle J said in Iaria and Panozzo,[15] each application for change of venue falls to be considered on its own merits, without preconceptions. There is no necessity for an applicant to show exceptional circumstances. Nor is the applicant to be regarded as bearing a ‘heavy onus’.[16] It is both necessary and sufficient for the applicant to show that the change of venue is necessary for the purpose of securing a fair and impartial trial.[17]
[5]But the test of necessity is, in practice, a stringent one. As discussed below, our system of jury trial has its own built-in protections against unfairness resulting from (for example) prejudicial pre-trial publicity. Those safeguards are: the excusing of any potential juror who may have difficulty deciding the case impartially; warnings and directions from the trial judge to the jury about deciding the case strictly on the evidence; and the discipline of participation in the trial itself. Even where a risk of prejudice is identified, the applicant for change of venue will often be hard pressed to establish that these safeguards will not be sufficient to eliminate the risk.[18]
[11]Re Ratten (Unreported, Supreme Court of Victoria, Lush J, 4 August 1970).
[12]Director of Public Prosecutions (Vic) v Bennett (2004) 10 VR 355, [6].
[13]Ibid [10] and the cases there cited; Cording v Trembath [1921] VL 163, 166-167 (Cussen J): to ensure that not only would a fair trial be had in fact ‘but that it should be had in such circumstances that all reasonable men would so admit’.
[14]Jago v District Court (NSW) (1989) 168 CLR 23, 47 cited by Nettle J in Iaria (2004) 9 VR 425, 430; R v Georgiou (2002) 131 A Crim R 150, 154 [23].
[15]Iaria (2004) 9 VR 425, 430 citing Yanner [1998] 2 Qd R 208, 209 (Pincus JA).
[16]Cf R v Cattell [1968] 1 NSWLR 156.
[17]R v Holden (1833) 110 ER 819; R v Boughton [1895] 2 IR 386.
[18]Vjestica [2008] VSCA 47, [2]-[5] (citations in original).
Evidence on the Application
The Court has received two affidavits sworn on 1 December 2023 and 8 December 2023 by Louise Ann Conwell, the accused’s solicitor.
In the 1 December 2023 affidavit, Ms Conwell details the notoriety of the accused and his family in the shire of Wentworth (where the alleged murder of Raymond Cohrs occurred) and Red Cliffs. She refers to extensive media coverage of the proceedings and annexes a sample of that coverage. Ms Conwell also states that the accused’s mental health is fragile and he is required to comply with a medication regime. She presumes that he will be held at Mildura Police Station for the duration of the sitting week. Beyond the assertions in the affidavit, no evidence was offered as to these latter matters.
In the affidavit dated 8 December 2023, Ms Conwell deposes to communications she had with the accused’s daughter on 4 and 6 December 2023 concerning the accused’s recent experience of delusions. Ms Conwell states that on 6 December 2023 she spoke with Ms Jenny Hoskin, the Assistant Commissioner, Sentence Management Division, Corrections Victoria, and annexes a copy of email correspondence between her and Ms Hoskin. In reply to a series of questions asked by Ms Conwell, on 7 December 2023 Ms Hoskins wrote:
We do not yet have a listing date or location from the court.
If the matter was to be heard in Mildura, given the distance, Mr Cohrs would be held in Mildura police cells for the week, likely returning to Melbourne on Saturday and returning on Sunday for court again on Monday.
I note he is currently accommodated in a specialist forensic mental health unit in Port Phillip Prison. Information about his current medication and treatment is not available to me and would need to be sourced from Justice Health. Any medication or mental health supports he requires for the duration of his stay in police cells will be the responsibility of Victoria police and you should seek clarification from them.
Please feel free to seek further advice but details of health treatment and medication is not available to Corrections Victoria.
Ms Conwell notes in her affidavit that the distance between Port Phillip Prison and Mildura Police Station is 543 kilometres with an estimated 6 hour travel duration by car.
Ms Conwell then deposes to the prescription drugs taken by the accused for both his mental and physical health. A clinical summary from Justice Health and a patient medication order are annexed. One of the medications taken by the accused is aripiprazole (an anti-psychotic drug). A side effect of that medication is tremors. At the beginning of December the accused was taken off aripiprazole to alleviate his tremors but, after suffering delusions, has now recommenced that medication. Ms Conwell deposes that the accused is seen by a psychiatric nurse daily.
Submissions of the parties
The accused advanced two major arguments.
First, he and his family are notorious in Mildura and surrounds, and the media reportage of the proceedings to date have, in that location, been saturated such that most prospective jurors are likely to have an opinion or knowledge about him. The accused emphasises that the publicity has been intense because of his profile. He was formerly the deputy mayor of Wentworth Shire and had public, publicised disputes with the then mayor, after which he unsuccessfully sought the mayoralty himself. His mother and brother were also extremely well known and, given the family’s extensive roofing, building and tourism businesses, many people in the area had dealings with them. All of these details have been consistently rehearsed in the extensive coverage of the criminal proceedings. The findings of the fitness hearings have also been widely reported. There has also been reporting on the change of venue application itself.[19] The language used by the media has often been emotive and descriptive.
[19]The Judicial Proceedings Reports Act 1958 prohibits reporting of much of what occurs in a hearing under Part 5.5 of the CPA, including an application under s 192.
Second, whilst not raising an issue of fitness to stand trial, the accused’s mental health is ‘vulnerable, if not precarious’. Since his discharge from Thomas Embling Hospital, he has been housed in Ravenhall (a hospital prison) and the St Paul’s unit at Port Phillip Prison, a specialist mental health ward. He takes aripiprazole and lurasidone, both anti-psychotic drugs, as well as other medication. The recent episode with the cessation of aripiprazole illustrates the importance of regular monitoring and supervision of his condition. The difficulty was picked up and remedied within days. Further, if held in the police cells at Mildura, the transportation to and from Melbourne every Saturday and Sunday would be intolerable for a person with serious mental health concerns.
The prosecution does not oppose the application.
With respect to the issue of publicity, the prosecution accepts that the accused and his family are notorious in the Mildura area and not only has the local paper reported on these proceedings, there has been extensive coverage of the ongoing civil litigation between the accused and some of his family members. The widespread coverage of the fitness proceedings, although not misleading, is likely to be seen to prejudice, if not actually prejudice, the accused’s defence in the event that a defence of mental impairment is not open to him.
The prosecution accept that as ‘a matter of practical reality’ the accused’s mental health will not be as well managed in the Mildura police cells as in Port Phillip Prison. Pointing to the public interest in ensuring that the accused’s trial proceeds and concludes, that interest is best served by the trial being heard in Melbourne.
Discussion
The accused has fragile health. While neither the Court nor the parties are of the view that there is a ‘real and substantial question’ as to the fitness of the accused to stand trial, it is clear that his mental health is less than robust and is currently actively managed within a dedicated custodial mental health facility. There is no suggestion that the accused’s prescribed medications will not be administered correctly if he were to be held in the police cells at Mildura, but the nuanced, individualised attention he receives at the St Paul’s unit will be lacking. I accept the accused’s submission that the recent events concerning the cessation and recommencement of aripiprazole demonstrate the value of that medical regime.
Given the history of this proceeding, there is a clear public interest in the trial proceeding to a conclusion in the time currently allocated. A significant deterioration in the accused’s mental health may interrupt the trial if a question of his fitness again arose.[20] It is appropriate for the Court to take what measures it can to avoid that potentiality. Holding the trial in Melbourne is one such measure.
[20]CMIA, s 9(3).
Further, from evidence filed in the various fitness hearings, it is clear that the accused suffers a number of physical ailments. He has chronic lung disease, diabetes mellitus, hypercholesterolaemia and hypertension. He had a myocardial infarction in May 2020 complicated by a cardiac arrest. He received an inferior cardiac infarct and stent and is managed for coronary vessel disease. The particular combination of his physical and mental ailments render the likely weekend travel regime from Mildura to Melbourne and back in the event that the trial was held in Mildura extremely burdensome. And, if he were to be held in the Mildura police cells for the duration of the trial, it is likely that he would be deprived of once-weekly access to specialist psychiatric medical staff.
For these reasons, and noting the united position of the parties, I am of the view that it is appropriate for the accused’s trial to take place in Melbourne.[21]
[21]CPA, s 192(b).
It is therefore unnecessary to determine whether, because of publicity, the accused cannot receive a fair trial in Mildura.
Conclusion
The application for change of venue is granted.
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