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District Court 7 August 2020

R v Kuroz

[2020] NSWDC 427

DrugsPublic order & justice offences
STANDARD OF PROOF TO THE CIVIL STANDARD BURDEN OF PROOF ON THE ACCUSED

Citation: R v Kuroz [2020] NSWDC 427
Court: District Court of New South Wales
Date: 7 August 2020
Judge: Weber SC DCJ

Background

The accused was charged with four counts arising from a series of MDMA-related transactions in Sydney between May and July 2016. The counts comprised: conspiracy to possess a large commercial quantity of MDMA for supply (Count 1); two counts of supplying a commercial quantity of MDMA (Counts 2 and 3); and one count of ongoing supply (Count 4). NSW Police had lawfully intercepted the accused's telephone services during the relevant period, and the resulting intercept material formed a central part of the evidence.

The accused elected to be tried by judge alone. A significant number of facts and the essential elements of each charge were formally agreed between the parties, substantially narrowing the issues at trial. The agreed facts confirmed, among other things, that the accused had participated in the relevant agreement, had supplied MDMA on the occasions alleged in Counts 2 and 3, and had known the drugs were prohibited.

The principal live issues were: whether the accused intended to carry out the conspiracy (the disputed element of Count 1); whether three or more separate supplies for reward within 30 consecutive days could be established for Count 4; and whether a mental illness defence applied across all counts. The accused was found to be an unreliable historian, a factor that featured in the court's assessment of the psychiatric evidence.

  • Whether the accused, at the time of the relevant offending, was labouring under a defect of reason owing to a disease of the mind such that he did not know what he was doing was wrong (the mental illness defence under the Mental Health (Forensic Provisions) Act 1990 (NSW)), applicable to all four counts
  • Whether the accused intended that the objective of the conspiracy (Count 1) should be carried into effect, as required by Peters v The Queen (1998) 192 CLR 493
  • Whether three or more occasions of supply for financial or material reward within 30 consecutive days could be established beyond reasonable doubt for the ongoing supply charge (Count 4)
  • Whether, if Count 4 could not be established, statutory alternative verdicts were available and supported by the evidence

Decision

Mental illness defence: The court rejected the mental illness defence on all counts. The burden of establishing the defence rested on the accused on the civil standard of proof, and the court was not satisfied that burden had been discharged. Expert psychiatric evidence was considered, but the accused's status as an unreliable historian was a material consideration in weighing that evidence. The court found the accused had not demonstrated he was labouring under a qualifying defect of reason, owing to a disease of the mind, such that he did not know what he was doing was wrong at the relevant times.

Count 1 (conspiracy): The court found the Crown had established beyond reasonable doubt that the accused, at the time of entering the agreement, intended that its objective be carried into effect. The existence of the agreement and the accused's participation were admitted. The disputed mental element was resolved against the accused.

Counts 2 and 3 (commercial quantity supply): All five elements of each count were admitted by the accused. The court entered guilty verdicts on both counts.

Count 4 (ongoing supply): The court was not satisfied beyond reasonable doubt that the accused had supplied prohibited drugs on three or more separate occasions within 30 consecutive days for the purposes of the ongoing supply offence. However, the evidence did establish beyond reasonable doubt that the accused had supplied MDMA to a named individual (approximately 13.5 grams in 160 capsules) and to unknown persons in the Campbelltown area (approximately 140 grams valued at $8,000). The court entered guilty verdicts on two statutory alternative offences available under section 25A(4) of the Drug Misuse and Trafficking Act 1985 (NSW).

Orders Made

  • Guilty verdict entered on Count 1 (conspiracy to possess a large commercial quantity of MDMA for supply)
  • Guilty verdict entered on Count 2 (supply of a commercial quantity of MDMA, 24 May 2016)
  • Guilty verdict entered on Count 3 (supply of a commercial quantity of MDMA, 4 to 17 June 2016)
  • Not guilty verdict entered on Count 4 (ongoing supply)
  • Guilty verdict entered on two statutory alternative offences to Count 4 under sections 25A(4) and 25(1) and 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW): supply of 160 MDMA capsules (13.5 grams) to a named individual on or about 9 June 2016; and supply of not less than a commercial quantity (approximately 140 grams) to unknown persons in the Campbelltown area
  • Convictions entered on each offence

Key Takeaways

  • The mental illness defence requires the accused to establish, on the civil standard of proof, that a disease of the mind caused a defect of reason such that the accused did not know what they were doing was wrong at the time of the offending. The District Court found this burden was not met, in part because the accused's unreliability as a historian affected the weight given to the psychiatric evidence.
  • A conviction for conspiracy under sections 25(2) and 26 of the Drug Misuse and Trafficking Act 1985 (NSW) requires, in addition to the existence of and participation in the agreement, proof that the accused and at least one co-conspirator actually intended the agreement's objective to be carried into effect, following Peters v The Queen (1998) 192 CLR 493.
  • Where a judge alone tries criminal proceedings under section 133 of the Criminal Procedure Act 1986 (NSW), the judgment must expose the principles of law applied, the findings of fact relied upon, and the court's approach to any warnings that would have been required in a jury trial, as confirmed in Fleming v The Queen (1998) 197 CLR 250.
  • Statutory alternative verdicts to an ongoing supply charge are available under section 25A(4) of the Drug Misuse and Trafficking Act 1985 (NSW) where the evidence, though insufficient to prove three or more qualifying supplies within the requisite period, nonetheless establishes individual supply offences to the requisite standard.
  • Extensive agreed facts and agreed essential elements between the parties can substantially reduce the issues requiring determination at trial, limiting live contests to discrete disputed elements.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 133
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25A(1), 25A(4), 26
- Evidence Act 1995 (NSW), s 191
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases:
- Fleming v The Queen (1998) 197 CLR 250
- Gerakiteys v The Queen (1984) 153 CLR 317
- Liberato v The Queen (1985) 159 CLR 507
- Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7