R v Cohrs (No 2)
[2022] VSC 784
•15 December 2022
| 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: | 15 December 2022 |
DATE OF JUDGMENT: | 15 December 2022 |
CASE MAY BE CITED AS: | R v Cohrs (No 2) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 784 |
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CRIMINAL LAW – Accused charged with murder – Accused unrepresented – Accused previously found unfit to stand trial – Accused previously found to become likely to become fit within 12 months – Accused previously remanded in Thomas Embling Hospital for six months – Psychiatric evidence that accused is still unfit to stand trial – Psychiatric evidence that accused’s mental disorder is improving and accused may become fit within six months – Accused remanded in Thomas Embling Hospital for further six months – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss 3, 6, 7, 9, 10, 14C, 14D, 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 |
| For the Accused | The accused appeared in person |
HER HONOUR:
Background
The accused is charged with murder.[1]
[1]The Crown case is summarised in R v Cohrs [2022] VSC 334 (‘Cohrs’) and is not here repeated.
On 17 June 2022 I found him unfit to be tried. I further found that he was likely to become fit within the following 12 months if treated for his delusional disorder. I received a certificate of available services from Forensicare[2] stating that a bed was available for the accused at Thomas Embling Hospital (‘TEH’) for a period not exceeding six months.
[2]Pursuant to s 47 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1991 (‘Act’).
Accordingly, I adjourned the matter for six months and ordered that the accused be remanded in custody at TEH for a period of six months.[3] If a bed had been available for 12 months, the period of adjournment would also have been 12 months.
[3]Act, s 14F(2)(b).
The accused was examined by a registered medical practitioner prior to the end of that period of adjournment.[4] The outcome of that assessment again raised a real and substantial question of the accused’s fitness to stand trial and I reserved that question for investigation in accordance with the Act.[5]
[4]Act, s 10(1)(d).
[5]Act, s 9(1). The question of fitness may be raised more than once in the same proceeding: Act, s 9(3).
On 15 December 2022 I heard the investigation into the fitness of the accused to stand trial.[6] The accused was self-represented during that investigation.
[6]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 six months if he is to receive further treatment for his delusional disorder at TEH.
The investigation
Dr Triglia prepared an updated fitness report dated 8 December 2022. Dr Triglia was not present at the hearing and did not give oral evidence.
Dr Triglia
Dr Triglia stated that she interviewed the accused at TEH on 28 November 2022 for about 105 minutes. She also reviewed his Forensicare medical record and spoke with his treating psychiatrist, Dr Asiri Rodrigo, prior to the interview.
The accused told Dr Triglia that overall he felt better. When first admitted to TEH he objected to taking psychiatric medication but did not resist or refuse it when it was prescribed. He currently takes 15mg of Aripiprazole (an antipsychotic) daily.[7] A higher dosage had been trialled but produced hand tremors and tiredness. The accused told Dr Triglia that his psychiatrist had listened to his concerns about the dosage and acted in his interests. He said that he trusted hospital staff and felt they took a genuine interest in him and his welfare.
[7]The accused is also prescribed a suite of medication for diabetes, elevated cholesterol, heart disease, hypertension and lung disease.
Dr Rodrigo reported that the accused had been compliant with treatment and polite and respectful towards staff. The accused had shown no irritability or anxiety. There had been no behavioural disturbance. Dr Rodrigo further stated that there had been a ‘partial improvement in [the accused’s] mental state, with better cognitive flexibility and a reduced tendency to reach conclusions rapidly’. The accused has not incorporated hospital staff into his persecutory beliefs. The accused has engaged in individual psychological sessions to challenge his delusions. At the time of those sessions he appeared able to consider alternative explanations, but there has been no noticeable change to his core beliefs over the five and a half months of his admission.
Mental state examination
Dr Triglia remains of the view that the accused’s most likely diagnosis is delusional disorder. She is unaware of any information obtained since the accused’s remand that suggests he has paranoid personality disorder. No significant cognitive problems have been detected and a brain MRI was reported to be normal.
As to the accused’s mental state and the improvement in it, Dr Triglia states:
[The accused] was noted by his treating psychiatrist to be more cognitively flexible and less likely to reach conclusions rapidly. In the interview with me he presented as less driven and intense in his account of his legal situation. He was able to discuss unrelated matters more easily, was less preoccupied with his beliefs about the legal system, and did not return repeatedly to these same themes. His thought form was less circumstantial and he was more able to get to the point. He described thinking about positive themes unrelated to his legal matters more often than previously.
His persecutory beliefs involving his family, the courts, judges, lawyers and Corrections were still present. There was some softening of his descriptions of the corruption he identified (for example, describing judicial misbehaviour rather than corruption, stating his objection to VLA representation related to competence secondary to inadequate funding) and concerns about his treatment by Corrections featured less prominently. The core delusions, however, were unchanged. As previously, I believe these to be the consequence of his delusional disorder.
Fitness
As with her previous report, Dr Triglia found the accused unfit to stand trial on two of the six s 6(1) criteria and could not form a conclusion with respect to one other.
As to the accused’s ability to understand that his criminal trial would be an inquiry into whether or not he committed the offence of murder,[8] Dr Triglia said that he:
… understood that a trial was a process to determine the truth about whether an offence had occurred. He believed, however, that in his case there was a conspiracy to convict him, to make an example of him and silence him from making corruption of the legal system, courts, Corrections and the judiciary publicly known. He believed that he was being denied appropriate legal representation and access to evidence that he could use to mount a defence and so without an appropriate defence, he would inevitably be convicted. These beliefs are delusions, caused by a mental illness. As a consequence, I believe that he is unable to understand the nature of his trial, that is, that it is a fair process where the outcome is not predetermined.
[8]Act, s 6(1)(c).
Dr Triglia also found the accused unable to understand the substantial effect of the evidence that may be given in support of the prosecution.[9] As at the last fitness investigation, this was because he ‘believed that some of the evidence in his case was false and maintained that court transcripts did not record accurately what had been said due to the conspiracy against him’.
[9]Act, s 6(1)(e).
Dr Triglia noted that the accused is unrepresented. She said:
I have no information about whether he was able to instruct his lawyer in his civil matters and cannot comment on this. I have concerns that his delusions would interfere with his instructions to a legal representative if he were to engage one in his criminal case but cannot comment on this with certainty.[10]
[10]Act, s 6(1)(f).
As a result, Dr Triglia maintains the opinion that the accused remains unfit to be tried as a consequence of delusional disorder. She notes that his illness has somewhat improved with treatment, but not sufficiently to currently render him fit.
The accused’s prognosis is a matter which lacks certainty. Dr Triglia said:
While his improvement thus far is encouraging, I cannot be certain that his illness will continue to improve with ongoing treatment, or that it will improve sufficiently to render him fit to be tried. As discussed in my previous report, delusional disorders often do not respond fully to treatment, or may respond slowly if they have been present and untreated for a long time. He has had little engagement with psychology thus far and may benefit if he were to engage with such treatment in the next few months. It is possible that a further period of treatment could result in [the accused] being fit to be tried in six months.
To this end, Dr Triglia confirms that a bed remains available for the accused in TEH for a further six months.[11] Dr Triglia notes that while the accused is compliant with treatment at TEH, he would be unlikely to accept treatment in prison as Corrections staff are incorporated in his delusions and he mistrusted the previous medical treatment he received in custody.
[11]I have received a certificate of available services pursuant to s 47 of the Act.
Discussion
Where, under s 14F(2) of the Act and after a period of adjournment, a real and substantial question of fitness is raised again, the Court must either extend the period of adjournment for a further period (but not so that the total period since the first finding of unfitness exceeds 12 months), or proceed to hold a special hearing within three months.[12]
[12]Act, s 14H(2).
If the period of adjournment is extended, the Court may make or vary any extant order under s 14F(2) of the Act, and s 14F(3) and (4) apply accordingly.[13] Thus, if I find the accused unfit to stand trial but determine that he is likely to become fit within the next six months, I may, relevantly, remand the accused in custody in an ‘appropriate place’[14] or in a prison. I must not remand the accused in an appropriate place unless I have received a certificate pursuant to s 47 of the Act stating that the facilities or services necessary to do so are available. I must not remand the accused in custody in a prison unless satisfied that there is no practicable alternative in the circumstances.
[13]Act, s 14H(3).
[14]A term defined in s 3 of the Act.
The prosecution argued that on the basis of Dr Triglia’s report I should find the accused unfit to stand trial but likely to become fit if remanded in TEH for another six months. The accused did not seek to persuade me otherwise.
I accept the unchallenged evidence of Dr Triglia that the accused is presently unfit to stand trial with respect to two of the six s 6(1) criteria. The live issue is whether the accused is likely to become fit after a further adjournment of six months. I must determine that question by reference to the evidence and on the balance of probabilities.[15]
[15]Act, s 14D(4)(a).
The evidence establishes that there has been improvement in the presentation of the accused’s delusional disorder. He has accepted treatment, including psychiatric medication. He has not incorporated medical staff into his delusional belief system. He has displayed improved cognitive flexibility. There has been softening of the manner in which he describes the delusion concerning the alleged corruption of justice system and the alleged unfairness of his potential criminal trial. On the other hand, the evidence establishes that delusional disorders are slow to respond to treatment and unlikely to resolve completely. At the last investigation, Dr Danny Sullivan described the treatment as ‘turning the volume down’ rather than ‘changing the channel on the radio’.[16] The accused’s core delusions remain unchanged.
[16]Cohrs [2022] VSC 334, [115].
In her report, Dr Triglia describes the accused’s prognosis as uncertain. She describes it as ‘possible’ that a period of further treatment could result in the accused being fit in six months. The Act does not require certainty. It describes a finding of more probable than not that within the period of adjournment an accused is likely to become fit.
Considering the evidence as a whole, I am satisfied to the requisite standard that it is likely that the accused will be fit within six months. At the time of the June 2022 fitness investigation the unanimous psychiatric evidence was that the accused was likely to become fit within 12 months, if appropriately treated. As noted above, the period of adjournment was determined by the availability of a bed a TEH for no more than six months. Now, after quite some years of no treatment, the accused’s progress in cognitive flexibility is noteworthy. Despite his initial resistance to going to TEH, he has been compliant with the regime and, despite being there as a consequence of a court order, the accused has not incorporated TEH or its staff into his delusions. His treatment has not become part of his ‘fearful belief system’.[17] Further, his allegations of corruption about the judicial system have softened, such as describing to Dr Triglia judicial ‘misbehaviour’ rather than ‘corruption’. And, a bed remains available to the accused for a further six months.
[17]Ibid, [113].
Ultimately I am persuaded that given the improvement demonstrated after five and a half months, it is likely that the accused’s delusional disorder will improve to the point where he becomes fit to stand trial if treated for another six months at TEH.
Orders
The orders of the Court will be as follows:
(a) The matter be adjourned for six months.
(b) 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.