R v Cohrs
[2022] VSC 334
•17 June 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0170
| THE QUEEN | Crown |
| v | |
| PAUL ANTHONY COHRS | Accused |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 May 2022 |
DATE OF JUDGMENT: | 17 June 2022 |
CASE MAY BE CITED AS: | R v Cohrs |
MEDIUM NEUTRAL CITATION: | [2022] VSC 334 |
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CRIMINAL LAW – Accused charged with murder – Accused unrepresented – Whether accused unfit to stand trial – Question of fitness reserved by court – Unanimous psychiatric evidence that accused likely suffers a delusional disorder of a persecutory type – Unanimous psychiatric evidence that accused unfit to stand trial – Accused unfit to stand trial – Whether accused likely to become fit in next 12 months – Unanimous psychiatric evidence of substantial chance of attaining fitness with treatment by antipsychotic medication – Accused refuses antipsychotic medication – Whether accused should be remanded in an appropriate place for treatment – Accused likely to become fit in next 12 months and remanded in Thomas Embling Hospital – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 3, 6, 7, 9, 10, 14C, 14D, 14E, 14G, 14H and 47.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Mahady with Mr P Pathmaraj | Office of Public Prosecutions |
| The Accused | The accused appeared in person |
HER HONOUR:
The accused is charged with murder.
There is a real and substantial question as to the accused’s fitness to stand trial.
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 1997 (‘Act’).[1] I made orders that he undergo an examination by a registered medical practitioner[2] and a second examination by a registered medical practitioner appointed by the Crown, should the Crown seek its own assessment.[3]
[1]Act, s 9(1).
[2]Act, s 10(1)(d).
[3]Act, s 10(1)(e).
On 30 May 2022 I heard the investigation into the fitness of the accused to stand trial.[4] The accused was self-represented during that investigation.
[4]Act, Part 2, Division 2.
For the reasons that follow I find the accused unfit to stand trial.
I further find that the accused is likely to become fit in the next 12 months if he is treated for his delusional disorder.
The Crown case
It is not necessary to here detail extensively the Crown allegations. The following summary suffices.
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[5] 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
[5]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 there 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 and 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 statutory provisions
A person is presumed to be fit to stand trial.[6] That presumption is rebutted only if it is established, on an investigation under Part 2 of the Act, that the person is unfit to stand trial.[7] The question of a person’s fitness to stand trial is a question of fact[8] and is to be determined on the balance of probabilities by the Court.[9] As the question of the accused’s fitness was raised by the Court, no party bears any onus of proof in relation to it.[10]
[6]Act, s 7(1).
[7]Act, s 7(2).
[8]Act, s 7(3)(a).
[9]Act, s 14C.
[10]Act, s 7(5).
A person is unfit to stand trial for an offence if, because the person’s mental processes are disordered or impaired, the person is or at some time during the trial will be unable to do at least one of six things.[11] They are:
[11]Act, s 6(1).
(a) Understand the nature of the charge.
(b) Enter a plea to the charge and exercise the right to challenge jurors or the jury.
(c) Understand the nature of the trial as an inquiry as to whether the person committed the offence.
(d) Follow the course of the trial.
(e) Understand the substantial effect of any prosecution evidence.
(f) Give instructions to his or her legal practitioner.
At an investigation into the fitness of an accused to stand trial, the Court must hear any relevant evidence and submissions put to it by the parties.[12] At the conclusion of the investigation there are two findings available to the Court – that the accused is fit to stand trial or the accused is not fit to stand trial.[13]
[12]Act, s 14D.
[13]Act, s 14E.
If the Court finds that the accused is fit to stand trial, the trial must be commenced in accordance with usual criminal procedures.[14]
[14]Act, s 14F(1).
If the Court finds that the accused is not fit to stand trial, the court must further determine, by reference to any relevant evidence and on the balance of probabilities, whether or not the accused is likely to become fit to stand trial within the next 12 months.[15]
[15]Act, s 14D(4)(a).
If the Court determines that the accused is likely to become fit within that timeframe, the Court must specify the period by the end of which the accused is likely to be fit to stand trial[16] and adjourn the matter for that period.[17] The Court may grant the accused bail or remand the accused, either in custody in an ‘appropriate place’ or in custody in a prison. In neither case can the period of remand exceed the adjourned period.[18] The Court must not remand an accused in custody in an appropriate place unless it has received a s 47 certificate of available services stating that the facilities or services necessary are available.[19] The Court must not remand an accused in custody in a prison unless satisfied that there is no practicable alternative in the circumstances.[20] At the end of the adjourned period, the accused is presumed fit to stand trial unless a real and substantial question of fitness is raised again.[21] If it is raised again, the Court must either extend the period of adjournment for a further period (but not so that the combined periods of adjournment exceed 12 months) or proceed to hold a special hearing within three months.[22] The period of adjournment may not be extended again.[23]
[16]Act, s 14D(4)(b).
[17]Act, s 14F(2).
[18]Act, s 14F(2)(b) and (c).
[19]Act, s 14F(3).
[20]Act, s 14F(4).
[21]Act, s 14H(1).
[22]Act, s 14H(2).
[23]Act, s 14H(4).
If the Court determines that the accused is not likely to become fit within the next 12 months, the Court must hold a special hearing within three months and either grant the accused bail or make a remand order to an appropriate place or a prison, subject to the same conditions identified immediately above.
‘Appropriate place’ is a term defined in s 3 of the Act. It means a designated mental health service or a residential treatment facility. In turn, ‘designated mental health service’ has the same meaning as in s 3(1) of the Mental Health Act 2014 (‘MHA’) and ‘residential treatment facility’ has the same meaning as in s 3(1) of the Disability Act 2006.
The definition of ‘designated mental health service’ in the MHA includes the Victorian Institute of Forensic Mental Health (‘VIFMH’).[24] VIFMH is also known as Forensicare.
[24]MHA, s 3.
The investigation
At the hearing of the investigation the prosecution[25] called evidence from two psychiatrists. The first, Dr Maria Triglia, authored a report dated 18 August 2021, at the request of the Court.[26] The second, Dr Danny Sullivan, authored a report dated 21 November 2021, at the request of the Crown. Both reports were tendered. Further viva voce evidence was elicited by the prosecution. The accused, who is self-represented, cross-examined both witnesses.
[25]Act, s 7(5).
[26]Act, s 10(1)(d).
It is convenient to set out the evidence of each psychiatrist.[27]
[27]The qualifications and experience of each psychiatrist is not detailed. They are accepted as experts by the Court.
Dr Triglia
Dr Triglia interviewed the accused on three occasions via video-link. She assessed him for 90 minutes on each of 5 and 12 July 2021 and a further 30 minutes on 16 August 2021. At the first interview, Dr Triglia explained the purpose of the interview to the accused. She was satisfied that the accused understood the limits of the confidentiality of the assessment. The accused consented to proceed with Dr Triglia’s examination of him.
In preparing her report, Dr Triglia had reference to a number of documents provided by the Court and, at her request, the accused’s Justice Health medical records.
Diagnosis
Dr Triglia assessed it likely that the accused has a diagnosis of delusional disorder. She wrote:
At the time of the assessment he presented with prominent persecutory beliefs involving his brother Raymond, his mother, the courts, judges, lawyers associated with his civil and criminal matters and Corrections. It is not possible, with the information available to me, to determine the reality basis of all of these beliefs. The extensive nature of the beliefs, the incorporation of a multiple people (sic) and his preoccupation and emotional investment in the beliefs suggest they are delusions. It is likely that he has a diagnosis of delusional disorder. This is a psychotic condition where a person experiences delusions, usually non-bizarre in nature, without significant impairment in social or occupational functioning or bizarre behaviours. The information I have suggests this has been present for several years, possibly as far back as 2012, although it is difficult to know with certainty without additional information.
Dr Triglia also considered a differential diagnosis of paranoid personality disorder, but considered it less likely because:
… there does not appear to be a pattern of pervasive distrust and suspiciousness of others, manifesting in a variety of contexts and present from early adulthood, which is required for the diagnosis.
She did, however, consider that that diagnosis could be revisited if additional historical information was obtained.
In viva voce evidence Dr Triglia stated that delusions are fixed, false beliefs that are not in keeping with a person’s background or culture and are resistant to alternative explanations. Dr Triglia stated that there are psychotic conditions other than delusional disorder where delusions are present. They are differentiated from a diagnosis of delusional disorder on the basis of other demonstrated features.
Dr Triglia reiterated her belief that the accused has a number of delusions. She stated that he does not demonstrate other features that would suggest another psychotic disorder. In particular, the accused’s delusions do not appear to be life-long, which is a necessary feature of a personality disorder.
The accused’s delusions are persecutory in nature. Persecutory delusions are fixed, false beliefs that a person is the victim of a conspiracy or that there are events going on outside that person’s control that are designed to lead to difficulties or problems for him or her. Dr Triglia said that the accused’s persecutory delusions involve both his family and his legal situation.
Fitness
In considering the six fitness criteria of s 6(1) of the Act, Dr Triglia found the accused fit under three – (a), (b) and (d), unfit under two – (c) and (e) and could not form a conclusion with respect to one – (f). Nonetheless, it is illuminating to consider her evidence with respect to all six criteria.
Understand the nature of the charge
In her report, Dr Triglia stated that the accused was aware that he was facing one count of murder. He indicated that he understood the seriousness of the charge and that there would be severe legal sanctions in the event he was found guilty.
Dr Triglia formed the opinion that the accused understood the nature of the charge.
Enter a plea and exercise right to challenge jurors
In her report, Dr Triglia stated that the accused told her that a guilty plea meant that the accused person admitted he had done what he had been charged with and a not guilty plea the opposite. The accused also spontaneously mentioned a plea of mental impairment, which he explained meant an accused could not be held responsible because of his mental state at the time of an offence. He also referred to automatism and the defending of another. The accused further said that he had been directed by judges and his previous legal representatives to plead guilty but he had declined to do so.
Dr Triglia further said that the accused was aware of his right to challenge jurors and said that he had previously undertaken jury duty.
She summarised her opinion as follows:
[The accused] knew he could plead guilty or not guilty and understood the meaning of the pleas. He had a basic understanding of the plea of not guilty on the grounds of mental impairment and knew of other defences, but not in any detail. He clearly indicated he would not plead guilty. He had prior experience of juries and was aware he had rights when choosing jurors. In my view he was able to enter a plea to the charge and to exercise his right to challenge jurors.
Understand the nature of the trial
In her report, Dr Triglia stated that the accused was able to articulate that a criminal trial is held ‘to have the truth aired’ and that an accused would be ‘judged by his peers and the outcome would depend on [the] verdict’.
However, the accused believed that in his own case a fair trial was impossible. Variously expressed, the accused believed that the legal system was corrupt.
He told Dr Triglia that two judges of this Court, myself included, were corrupt. He said that Hollingworth J had ‘made up her mind’ before he had come to court, told him he had no defence and directed him to plead guilty. He said that my refusal to exercise a power to fund a particular firm of South Australian lawyers to represent him was to ‘entrap’ him. He said ‘as soon as I accept Legal Aid, they have me’.
The accused also said that he had refused a Victoria Legal Aid (‘VLA’) solicitor as he believed that VLA was funded by the courts and any lawyers involved in the Victorian criminal justice system were corrupt. He said that the prosecution was also corrupt.
The accused also told Dr Triglia that although he had been previously represented in his civil litigation, he had sacked these lawyers because he had paid large legal fees but still had no access to basic evidence such as copies of the company documents. He attributed this to corruption involving the lawyers and judges, and to his brother Raymond’s lawyer in particular. The accused asserted that the latter subsequently acted for clients who bought the Cohrs family business after the alleged offence and that this was proof of his corruption. The accused further expressed the belief that the civil and criminal cases were linked and that he needed evidence of corruption in the civil case for his defence in the criminal case. Accordingly, the difficulties he had in gaining access to the documents in the civil case interfered with his criminal case.
In her report, Dr Triglia formed the following opinion:
[The accused] understood that a trial was a process to determine the truth about an incident, with a jury of peers making a decision about culpability. In his specific case, however, he believed there was a conspiracy to stop him from having a fair trial in order to convict him of an offence and thereby silence him to cover up corruption of the judiciary. He had extensive persecutory delusions involving all the parties at court. I believe, therefore, that he was unable to understand the nature of the trial, in his own case, as his specific delusions prevent him from being able to understand it is a fair process where the outcome is not predetermined.
In her viva voce evidence, Dr Triglia summarised this by saying that while the accused was aware of the nature of a trial in an abstract sense he did not believe it was possible for him to have a fair trial because of the corruption of various actors in the justice system. Dr Triglia also said that the accused told her that he believed that the previous actions of judges had led to the deaths of people. She stated that she was unable to get more specific details of that belief.
Follow the course of the trial
The accused told Dr Triglia that he was confident he had been able to recall and understand what had occurred during previous court attendances, including with respect to the issue of fitness. The accused said that he had access to transcripts of those attendances, but had not been paying much attention to the criminal matter as he was working on his civil matters. The accused stated that he believed two of the transcripts had been falsified in relation to Hollingworth J telling him he had no defence to the charge.
Dr Triglia stated the following opinion in her report:
[The accused] was able to concentrate for two lengthy interviews, during which he took notes, and was able to give an account of his prior attendances at court. I believe, therefore that he would be able to follow the course of the trial.
In her viva voce evidence Dr Triglia stated that the ability to follow the course of the trial is often difficult to assess as the subject is not observed in court, but the accused’s ability to concentrate and participate in the interviews, as well as remember information, indicated he was fit with respect to this criterion.
Understand the prosecution evidence
The accused told Dr Triglia that he ‘could not argue’ with the prosecution evidence and also that it was relatively strong. He said that a person reading the evidence would think that the incident had occurred. But the accused also said that ‘all of the statements are false’. He gave the example of the statement of Don McKinnon which deposed that the accused had been sacked as deputy mayor. He said that Mr McKinnon and the deceased had a close personal relationship and this, as well as his corruption, was why Mr McKinnon had told police that the accused was paranoid.
In her report, Dr Triglia formed her opinion as follows:
[The accused] was aware of the evidence the prosecution had obtained and described this as being relatively strong, but believed that at least some of it had been falsified and that court transcripts had been altered as part of the conspiracy against him. I believe, therefore, that although he could understand the nature of the evidence, he was unable to understand its substantial effect because of his belief that it had been falsified and altered.
Give instructions
Dr Triglia noted in her report that the accused is unrepresented and that he told her that he would not accept legal representation from VLA as he believed lawyers involved in the Victorian criminal justice system were corrupt. He said that he wished to be represented by solicitors from South Australia, but had been unable to access his assets to fund them. The accused said that the court was ‘fearful of the lead practitioner in that practice, as he had been the head of the DPP’ and this was why I (as the trial judge) had refused to fund it. Dr Triglia further noted that at her third interview with the accused he said that he may soon have access to his assets to hire that legal firm and he would be happy to do so.
Dr Triglia was unable to form an opinion as to this criterion. In her report she stated:
[The accused] 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.
Likelihood of fitness within 12 months
In her report Dr Triglia noted the difficulty in making a definitive statement about the accused’s prognosis in the absence of a comprehensive psychiatric assessment and the lack of previous treatment. Ideally the accused would be assessed longitudinally and corroborative information from family members would be used to assist with diagnostic clarification. That would allow for a comprehensive cognitive assessment and any physical investigations necessary to diagnose possible cognitive problems.
Dr Triglia stated the following:
I recommended to [the accused] that he engage with mental health staff in prison, but he declined to do so. I also contacted psychiatrist Dr Vennela Kulluru at [Port Philip Prison] to advise her about [the accused’s] mental state and my recommendations to him.
Without any form of treatment, it is highly unlikely his illness will improve. Delusional disorders often do not respond fully to medication, but can improve substantially with treatment. I am hopeful that a period of treatment could allow [the accused] to be fit to be tried within the next six to 12 months.
An issue is how this assessment and treatment could be facilitated. His mental state is such that he would not meet criteria for involuntary treatment with a Secure Treatment Order (STO) under the Mental Health Act. The alternative would be an Order for detention at Thomas Embling Hospital under the [Act], although this would be dependent on the hospital being able to provide a bed. I have had preliminary discussions with the Director of Clinical Services regarding a possible future need for [the accused].
In viva voce evidence Dr Triglia stated that it was certainly possible that the accused could become fit but that without treatment there was little to suggest that his mental state would alter substantially.
She said that the core of the treatment required for the accused’s delusional disorder would be antipsychotic mediation.
Dr Triglia said that there would also need to be investigation into possible cognitive problems arising from physical trauma. That could take place simultaneously with the treatment for the delusional disorder. She said that the chest injury the accused sustained following his suicide attempt caused an episode of hypoxia, being low blood oxygen. And the accused became non-responsive and required cardio-pulmonary resuscitation following a myocardial infarction and cardiac arrest in prison.
Dr Triglia said that cognitive difficulties are difficulties with one’s intellectual thought processes. She stated that she administered a brief cognitive screening test with the accused. Not all parts could be administered as the test is not designed to be conducted via video-link. However the accused had difficulty with a couple of small elements of that test.
Dr Triglia stated that it was difficult to make a prediction of recovery after 12 months of antipsychotic medication, but said that there was ‘a substantial chance that [the accused’s] mental state would improve with antipsychotic treatment, better than even a chance perhaps’. She qualified that likelihood as ‘more likely than not’.
When asked if the expected improvement would be to the point where the accused was fit to stand trial, Dr Triglia said it is not predictable but was ‘certainly possible’. She said that the accused has never been treated for a lengthy period on antipsychotic medication. She noted that he had been on such medication briefly in hospital but she had no information about why it was commenced or its effect. She said that cognitive testing would assist in better understanding the accused’s potential for improvement.
Dr Triglia said that many people take antipsychotic treatment in prison. When she spoke to the accused about doing so, he declined to have treatment. The only other alternative, if antipsychotic medication is to be given, is to administer the treatment compulsorily at Thomas Embling Hospital (‘TEH‘), a secure forensic mental health hospital managed by Forensicare.
In cross-examination, the accused asked Dr Triglia about the long-term effects and side effects of antipsychotic medication. Dr Triglia said that there were a number of different antipsychotic medications available. Decisions as to choice of treatment are based on factors such as a person’s medical conditions and underlying health conditions. She said that all medications have side effects, so it was possible that the accused would experience some. Dr Triglia further said it was unusual for people to have permanent or long-term effects with the current antipsychotic medications available for use.
Dr Sullivan
Dr Sullivan met with the accused twice by video conference on 8 and 22 October 2021 for a total of just under three hours. The accused agreed to participate and was aware of the purpose of the assessment. Dr Sullivan noted that the accused had less understanding of the possibilities which would arise if he were to be found unfit.
In preparing his report, Dr Sullivan had access to a number of other documents provided by the prosecution including the Summary of Prosecution Opening, emails between the accused and deceased attached to an affidavit sworn by the accused with respect to his civil litigation and the report of Dr Triglia.
Diagnosis
Dr Sullivan states that the accused appears to have developed a range of persecutory beliefs involving others acting against him with malign intent. He perceives widespread collusion and conspiracy. His beliefs are held with unshakable conviction and their development is premised upon selective inference.
In his report, Dr Sullivan gives various examples of these beliefs. He notes that the accused was steadfast in his opinion of his brother’s and mother’s conspiracy against him as well as the involvement of others in efforts to work against his best interests. Those others include family members, professionals in Mildura, the Office of Public Prosecutions, previous legal representatives, prison management and the judiciary. When Dr Sullivan asked the accused how sure he was that there was a plot against him, he said ‘there is no way I’m mistaken, right from the start’.
Dr Sullivan states:
Although there may be true factual reasons underpinning these beliefs, [the accused] holds his beliefs with unwavering certainty, and incorporates new information into his belief system not as a challenge to his beliefs, but only to vindicate them. In the absence of other psychotic phenomena such as hallucinations, this is consistent with a delusional disorder, persecutory type as set out in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5).
Collateral information from acquaintances and children suggests that [the accused] has held increasingly persecutory ideation for some years which may not clearly have met the threshold of paranoid personality disorder, but nevertheless suggest a paranoid thinking style: suspicious, rigid, ruminative, self-referential, prone to misinterpretation and holding grudges. In the absence of collateral clinical information from earlier years, a diagnosis of paranoid personality disorder cannot clearly be confirmed. However, it is likely that delusional disorder has arisen in the context of more longstanding paranoid personality traits and represents their foundational role in the development of a delusional disorder.
Additional diagnoses to be excluded include a degree of cognitive impairment, related to potential cerebral hypoxia due to cardiac arrest or related to his acute pulmonary injuries and reduced cerebral perfusion during this time. Furthermore, deterioration in personality and psychosocial functioning at [the accused’s] age raises the unlikely possibility of a dementing illness such as frontotemporal dementia.
In viva voce evidence Dr Sullivan said that a delusional disorder is categorised with psychotic disorders, but is manifest by the presence of delusions absent any other feature of psychotic illness such as hallucinations, alterations in emotion or disorganised speech, thought or behaviour. Dr Sullivan also explained that a delusion is a fixed firm belief held with unshakable conviction, while a hallucination is the perception of something occurring in one of a person’s senses absent any causative stimulus. The subtype of the delusional disorder being persecutory refers to the content of the delusion, and that usually means the person comes to believe there is a conspiracy against them or that people are working against their interests. That belief is formed by leaping to conclusions or making inferences that others would not make. When presented with evidence to the contrary, or in discussions in which their beliefs are challenged, people with delusional disorder ‘stick to their guns steadfastly’ and are ‘not persuaded by other evidence that they might be mistaken.’
Dr Sullivan stated that it appeared that in recent years the accused had become increasingly preoccupied with various members of his family whom he thought were working against his interests. The evidence the accused cited included damage to his car, the killing of a pet animal and money going missing. Dr Sullivan challenged the accused about his belief that others, including judges, barristers, VLA, the OPP and the prison system had been drawn into that conspiracy. Dr Sullivan stated that the evidence upon which the accused founded that belief was idiosyncratic and based only upon his own perceptions.
Dr Sullivan reiterated that he had considered whether there was evidence of a paranoid personality disorder. Such disorder is not uncommonly associated with a persecutory delusional disorder. The hallmarks of a paranoid personality disorder are present for most of a person’s life or present in multiple domains. Dr Sullivan said that the accused’s family is very polarised so their statements do not necessarily help make this diagnosis. Dr Sullivan said that medical records and a lot more information, including the administering of structured psychological tools, would be required.
Dr Sullivan said that a delusional disorder is much more likely to arise in a person who has a paranoid personality structure. But, a paranoid personality is not delusional. Such a personality might have a paranoid interpretation but the inferences made to arrive at conclusions appear justifiable. The conclusions drawn by a person with a delusional disorder do not need to be bizarre, but do involve drawing inferences in ways which others would not consider justifiable.
Fitness
In considering the six fitness criteria of s 6(1) of the Act, Dr Sullivan found the accused fit under three – (a), (b) and (d) and unfit under three – (c), (e) and (f). Dr Sullivan’s opinion is that the accused’s unfitness is as a result of his disordered mental processes resulting from delusional disorder, which pervasively influences his thinking and thereby compromises his capacity to participate meaningfully in a trial.
Again, it is illuminating to consider Dr Sullivan’s evidence with respect to all six limbs.
Understand the nature of the charge
Dr Sullivan noted in his report that the accused understood that he was charged with murder and that it was a serious offence. He considered that the accused understood the nature of the charge.
Enter a plea and exercise right to challenge jurors
Dr Sullivan reported that the accused understood the meaning of pleas of guilty or not guilty. He was able to reason about the process of choosing a plea. He expressed a clear preference to plead not guilty. Further, the accused had a clear understanding of the function of jurors and the jury. He described the basis of preferring some jurors over others. Dr Sullivan considered that the accused could enter a plea to the charge and could exercise his right to challenge jurors.
Understand the nature of the trial
In his report Dr Sullivan noted the extensive range of concerns expressed by the accused about the legal process of a trial. These included the fairness of the judge, the separation of his civil and criminal matters, his perception that the OPP has a conflict of interest, beliefs that the outcome was predetermined and involved conspiracy and his preoccupation that others were working to prevent his matter being heard fairly. Accordingly, Dr Sullivan did not consider that the accused could understand the nature of a trial as a fair process.
In viva voce evidence Dr Sullivan stated that the accused considered that all of the parties, including the judge, defence and prosecution, had an interest in finding against him and therefore were not able to participate impartially. That was directly related to his delusional disorder.
Follow the course of the trial
The accused reported to Dr Sullivan some emotional distress and feelings of being overwhelmed during earlier legal proceedings. However Dr Sullivan considered that the accused’s receptive language, concentration, attention and understanding indicated he could remain sensibly engaged in legal proceedings during a trial. Therefore he considered that the accused could follow the course of a trial.
In viva voce evidence Dr Sullivan stated that consideration of this criterion is done by observation of a person’s conduct during interview. The accused was able to recall details from a discussion some weeks prior. He was able to respond appropriately to questions and talk about matters relevant to questions asked. Although he wore hearing aids, the accused did not have any difficulty hearing Dr Sullivan and, on a couple of occasions, when Dr Sullivan used a word he did not understand, the accused stopped him and participated in a discussion until he appeared satisfied that he understood the term.
Understand the prosecution evidence
Dr Sullivan states that the accused considers that many witness statements are either untruthful or result from the witnesses having been misled. On that basis, Dr Sullivan considers that the accused’s suspicions about the motives of witnesses and veracity of evidence prevent him from understanding the substantial effect of the prosecution evidence.
In viva voce evidence Dr Sullivan said that he did not consider the accused was capable of considering the evidence of the prosecution witnesses as something each genuinely believed and would give under oath. The accused could understand the factual information but could not believe it was truthful and, for that reason, he could not understand its substantial effect. That arose from his delusional disorder because it was related to the accused’s perception that other parties, including those involved in the case, were working together or individually against his interests and did not have a fair, impartial attitude towards him.
Give instructions
Dr Sullivan notes that the accused has dismissed his lawyers and expresses concerns that his legal representatives are colluding with other parties against his interests. He is unrepresented and has not been able to sufficiently resolve his mistrust to engage lawyers.
In viva voce evidence Dr Sullivan said that he had quite extensive discussions with the accused regarding his concerns about his previous legal representatives. The accused said he had dismissed a couple of lawyers because they were not able to act in his best interests. He also expressed concerns that the counsel they had selected had also represented people charged with other criminal offences and that those counsel would make deals with the judge or each other to find against him, in order to pay off or bargain with other parties. Dr Sullivan concluded that the accused’s overwhelming suspicions towards various lawyers and his belief that there could be no lawyer found in Victoria who was not somehow tainted meant that he could not give instructions. This inability arose directly from his delusional disorder.
Likelihood of fitness within 12 months
Dr Sullivan noted that the accused has not undergone treatment for delusional disorder. He stated:
Until there has been a trial of treatment, I do not consider that [the accused] is permanently unfit to be tried. Given his apparent lack of engagement with treating mental health services in his current prison, it is likely that treatment will need to take place compulsorily at Thomas Embling Hospital.
In viva voce evidence Dr Sullivan said that he thought there was ‘a reasonable possibility’ that the accused could become fit. The accused has not undergone evidence-based treatment for delusional disorder and if such treatment is effective it may ameliorate or soften the effect of the accused’s delusional beliefs such that he becomes fit to be tried.
Dr Sullivan said that evidence-based treatment involved antipsychotic medication and, in some cases, antidepressant medication and psychological intervention. The mainstay is antipsychotic medication.
Dr Sullivan stated that delusional disorder is not necessarily a permanent disorder. In contrast with a personality disorder which tends to be longer term, although variable in intensity, a delusional disorder is something which comes on a person at a time in their life and may recede. He said it is hoped that with treatment the accused could consider alternatives to his beliefs or come to reflect that he had held them with a conviction that was not justified by the evidence. In that event Dr Sullivan stated that the accused would be able to participate fairly in a trial because he would not believe that the parties were working against his interest, had conspired together or had a predetermined outcome.
When asked about where treatment could occur, Dr Sullivan stated that it could occur in prison or, if a person refused to participate, the medication could be provided compulsorily at TEH. He stated that ‘compulsorily’ included working with a person’s expressed choices, working to minimise the risk of any adverse effects and taking into account his or her preferences. In practice that meant offering a choice of a couple of medications that would preferably be taken orally. In the event that a person refused to swallow tablets, they could be compulsorily injected with the medications in injectable form. He said that some people decline and have the injection. Some people choose the injection for convenience. Others take the oral medication under sufferance and with the expressed statement that they are not doing so willingly.
Dr Sullivan said that, as far as is reasonably possible, treatment plans are discussed with the person and they are consulted before an ultimate decision is made. He said that informed consent is required. The person is given the opportunity to discuss which adverse effects they might be fearful of. The medication is usually commenced at a low dose and increased gradually, taking into account what a person chooses to take as well as what medication they need.
Dr Sullivan said that from a medical point of view, staff at TEH would try to use the least restrictive alternative in treating a person compulsorily. The accused does not meet the threshold for a STO under the MHA. Dr Sullivan said that while a threshold for compulsory treatment under the Act is not delineated, most forensic mental health psychiatrists would regard persons detained under the Act as meeting a threshold for compulsory treatment if that was indicated, but it remained a medical rather than legal decision. It was possible that if the accused was detained under the Act a specific psychiatrist might determine that the accused did have the capacity to refuse medication and respect that refusal.
In cross-examination the accused stated that the administering of antipsychotic medication would have the effect of altering his mind to get the result that the judge and everyone else was looking for, so that confirmed his position. Dr Sullivan answered that he could reassure the accused that the low dose he would be given would be unlikely to produce side effects. He said that he could appreciate the accused’s perspective that his beliefs were true, but that both he and Dr Triglia considered that the process by which the accused had arrived at those beliefs has the hallmark of a delusion. He also said that experience showed that treatment of people with delusions does not result in those delusions totally disappearing. Rather, the firmness with which a person holds a delusional belief diminishes. That meant that the possibility with treatment was that the accused would come to believe that there is not a conspiracy against him, and that would be a good thing. It may be the case that the delusions would remain, in which case the accused would remain unfit. Dr Sullivan stated that a trial of medication was warranted to see if it could get rid of the accused’s fearful belief system, which in his view was a delusion.
The accused then queried how it would be possible to participate in his civil litigation if he was on antipsychotic medication and in TEH. Dr Sullivan stated that there was no evidence that the medication would cause a reduction in his intellectual capacities such that he would not be able to participate in those court cases. Dr Sullivan said he hoped the medication would alter the accused’s belief that, for instance, there was a conspiracy involving the OPP as a result of its interest in his civil matters. He said that the civil matters would not simply stop as the accused would still dispute the claims against him.
In re-examination Dr Sullivan said that the medication used to treat delusional disorder does not, to use a metaphor, ‘change the channel on the radio’ but ‘turns the volume down’ so that the strength of the delusional belief becomes less firm and the conviction less certain. That allows a person to be able to acknowledge areas of grey or degrees of uncertainty.
Submissions of the Parties
The prosecution submitted that the Court should accept the expert opinions of Dr Triglia and Dr Sullivan that the accused, because his mental processes are disordered, satisfies at least two of the s 6(1) criteria. Accordingly, the Court should find the accused unfit to stand trial.
The prosecution further submitted that given the consensus of Dr Triglia and Dr Sullivan that the treatment of the accused’s delusional disorder may result in him becoming fit, the Court should find that the accused is likely to become fit within the next 12 months if he undergoes treatment. Given that the accused does not wish to undertake treatment, the prosecution submitted that the Court should remand the accused in custody in an ‘appropriate place’ for a period of 12 months upon receiving a s 47 certificate of available services.
The accused submitted that he is unfit to stand trial. The accused further submitted that he would not become fit, with treatment, in 12 months. He argued that he has held his beliefs for eight to 10 years. He stated that he did not consent to the taking of antipsychotic medication, which he termed ‘mind altering drugs’ and did not wish to be treated in that manner. He said it would have to be administered compulsorily. He said he would participate in counselling or other therapy. He submitted that the matter should proceed to a special hearing.
Analysis
Is the accused unfit to stand trial?
The first question I must determine is whether the accused is unfit to stand trial because his mental processes are disordered or impaired such that he meets at least one of the s 6(1) criteria.
I accept the expert evidence of Dr Triglia and Dr Sullivan as to the disorder of the accused’s mental processes arising from a likely delusional disorder of the persecutory type. I also accept the evidence of both doctors that that delusional disorder renders the accused presently unfit to stand trial under ss 6(1)(c) and (e) of the Act. Further, I accept the evidence of Dr Sullivan that the delusional disorder renders the accused presently unfit pursuant to s 6(1)(f) of the Act.
The accused has a fixed, unshakable belief that the Victorian justice system is corrupt. He believes that various actors within that system are conspiring against him in order to achieve an outcome that is adverse to his interests. He cannot understand that the trial he would receive in this Court would be fair according to law. He believes that the prosecution evidence is untruthful. He cannot understand that the effect of that evidence is to establish a strong case of murder against him. He believes that no lawyer in the State of Victoria would act in his best interests. He cannot therefore give instructions to legal practitioners.
The beliefs held by the accused arise as a direct result of his delusional disorder. The process of reasoning he uses to form the beliefs and his inability to accommodate challenges to them bear the hallmarks of delusion.
It follows that pursuant to s 14E of the Act and on the balance of probabilities, I find the accused not fit to stand trial.
Will the accused become fit to stand trial within 12 months?
I accept the unanimous opinion of Dr Triglia and Dr Sullivan that the accused’s unfitness is not necessarily permanent. Both experts expressed the view that, if treated with antipsychotic medication, the accused may experience amelioration in his delusional disorder sufficient to render him fit to stand trial.
I must determine, by reference to any relevant evidence and on the balance of probabilities, whether or not the accused is likely to become fit to stand trial within the next 12 months.
Dr Triglia stated her opinion that there was a ‘substantial chance’ and it was ‘more likely than not’ that treatment with antipsychotic medication would ameliorate the accused’s disorder to the point where he would achieve fitness under the Act.
I note Dr Sullivan’s evidence that antipsychotic medication, if successful, will not extinguish the accused’s delusional disorder. Rather, it would ‘turn the volume down’ such as to allow the accused to consider other pathways of reasoning. Dr Sullivan stated that there was a ‘reasonable possibility’ of success.
In my view, that substantial chance or reasonable possibility of success allows the conclusion that it is more probable than not that a period of long-term treatment with antipsychotic medication will ameliorate the accused’s delusional disorder to the point where he can understand the nature of the trial as a fair process, understand the substantial effect of the prosecution evidence and give instructions to a legal practitioner.
It has given me no little concern that the accused does not want to accept treatment with antipsychotic medication and does not believe that it will assist him. And further that any finding that the accused is likely to become fit within the next 12 months is contingent upon such treatment being administered to him, probably compulsorily, whilst remanded at TEH.
However, the provision of such treatment to the accused is contemplated by the Act and the MHA.
The Act outlines procedures for dealing with people who are unfit to stand trial.[28] Importantly, such an accused person (regardless of whether they are likely or unlikely to become fit in the next 12 months) must not be remanded in custody in a prison unless the Court is satisfied that there is no practicable alternative in the circumstances.[29] The Court has received a certificate of available services from Forensicare pursuant to s 47 of the Act, stating that a bed is available for the accused at TEH from 17 June 2022, for a period not exceeding six months.
[28]Act, s 1(c).
[29]Act, ss 14F(4) and (5)(a)(ii).
If placed at TEH, the accused would be a ‘forensic patient’ for the purposes of the MHA, being ‘a person remanded in custody in a designated mental health service under the [Act].’[30]
[30]MHA, s 305(1)(a).
The MHA incorporates a supported decision-making model to enable patients to make or participate in decisions about their assessment, treatment and recovery.[31] It has a number of objectives.[32] These apply to the assessment and treatment of all patients and include:
[31]Victoria, Parliamentary Debates, Legislative Assembly, 20 February 2014, 471 (Ms Woolridge, Minister for Mental Health).
[32]MHA, s 10.
(a) to provide for the assessment of persons who appear to have mental illness and the treatment of persons who have mental illness;
(b) to provide for persons to receive assessment and treatment in the least restrictive way possible with the least possible restrictions on human rights and human dignity;
(c) to protect the rights of persons receiving assessment and treatment;
(d) to enable and support persons who have mental illness or appear to have mental illness—
(i) to make, or participate in, decisions about their assessment, treatment and recovery; and
(ii) to exercise their rights under this Act;
(e) to provide oversight and safeguards in relation to the assessment of persons who appear to have mental illness and the treatment of persons who have mental illness;
(f) to promote the recovery of persons who have mental illness;
(g) to ensure that persons who are assessed and treated under this Act are informed of their rights under this Act;
…
The MHA also contains 12 mental health principles.[33] Mental health service providers must have regard to these principles in the provision of mental health services.[34] Any other person must have regard to the principles when exercising a power or performing a function under the MHA.[35]
[33]MHA, s 11(1).
[34]MHA, s 11(2).
[35]MHA, s 11(3).
The MHA also considers capacity and informed consent, and provides a framework for decision making when a patient (including a forensic patient) does not give consent to treatment. This statutory framework was alluded to in the viva voce evidence of Dr Sullivan at paragraphs 111 and 112 above.
I have no doubt that the accused’s concerns regarding compulsory medical treatment will be addressed under that framework.
The viva voce evidence of both experts suggests that with treatment, the accused is likely to become fit sometime within the next 12 months. Dr Triglia expressed in her report an estimate of six to 12 months. Further, inpatient services at TEH are presently only available to the accused for a period of six months.
In this regard I note that if a question as to the accused’s fitness again arises after six months of treatment, the Court may extend the period of adjournment for a further period of up to six months.[36] And at any time during a period of adjournment fixed by the Court, the accused or the Director of Public Prosecutions may apply for an order that the trial commence if either party is of the opinion that the accused has become fit to stand trial, or may apply for an order that the Court proceed to hold a special hearing if either party is of the opinion that the accused will not become fit to stand trial by the end of the adjourned period. [37] Either application must be accompanied by a medical report on the accused’s mental condition.[38]
[36]Act, s 14H(2)(a).
[37]Act, s 14G(1).
[38]Act, s 14G(2).
Conclusion
It follows that pursuant to s 14E of the Act and on the balance of probabilities, I find the accused not fit to stand trial. Pursuant to s 14 D(4)(a) of the Act and on the balance of probabilities, I find that the accused is likely to become fit within the next 12 months. Pursuant to s 14D(4)(b), the period by the end of which the accused is likely to be fit to stand trial is six months.
Accordingly, I propose to remand the accused in custody in TEH for a period of six months.
The orders of the Court will be as follows.
(a) That the matter be adjourned for a period of six months.
(b) That the accused be remanded in custody at Thomas Embling Hospital for a period of six months, pursuant to s 14F(2)(b) of the Act.
(c) There is liberty to apply.
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