R v Cohrs (No 2) - [2022] VSC 784

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cohrs (No 2)

Details

AGLC: R v Cohrs (No 2) [2022] VSC 784
Case: [2022] VSC 784
Decision Date: 15 December 2022

CaseChat Overview and Summary

In this case, the accused, who had been charged with murder, appeared before the court without legal representation. The accused had previously been found unfit to stand trial due to a mental impairment, and it was determined that there was a likelihood of the accused becoming fit to stand trial within twelve months. Following this determination, the accused was remanded in Thomas Embling Hospital for six months. Upon the accused's reappearance before the court, psychiatric evidence was presented which indicated that the accused remained unfit to stand trial, although there was an improvement in the accused's mental condition, with the possibility of the accused becoming fit to stand trial within six months. The court was required to decide whether the accused should be remanded in hospital for a further period.

The legal issues before the court involved the application and interpretation of provisions within the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The court had to consider whether the accused's mental condition had sufficiently improved to enable a trial, and if not, what further steps should be taken in accordance with the statutory provisions. The court also needed to balance the rights of the accused against the need to bring the matter to trial.

The court determined that, despite some improvement in the accused's condition, they remained unfit to stand trial. In accordance with the statutory framework, the court exercised its discretion to remand the accused in Thomas Embling Hospital for a further six months, pending further assessment of their fitness to stand trial. The court's decision was based on the evidence provided by the psychiatric experts and the legislative criteria outlined in the Act. The court recognised the importance of ensuring that the accused's mental health was properly managed while also considering the need for the case to proceed.

The final orders of the court included the remanding of the accused in Thomas Embling Hospital for a further six months, during which time the accused's mental health would continue to be monitored and assessed. The court directed that the accused be provided with appropriate treatment and support to facilitate any improvement in their mental condition. The matter was to be reviewed at the end of the six-month period to determine whether the accused had become fit to stand trial.

Orders