R v Kuroz - [2020] NSWDC 427

District Court

New South Wales

Medium Neutral Citation: R v Kuroz [2020] NSWDC 427
Hearing dates: 29 – 30 June 2020 (Trial);
1 – 3, 7 – 9, 13 July 2020 (Trial);
7 August 2020 (Judgment)
Date of orders: 7 August 2020
Decision date: 07 August 2020
Jurisdiction: Criminal
Before: Weber SC DCJ
Decision:
(1)      That the accused is found guilty of counts 1, 2, and 3 on the indictment;
(2)      That the accused is found not guilty of count 4 on the indictment;
(3) That the accused is found guilty of two statutory alternative offences to count 4 pursuant to section 25A(4) of the Drug Misuse and Trafficking Act 1985 (NSW), namely:
(i) the supply of prohibited drugs to Athanasios Syrios on or about 9 June 2016, in the amount of 160 MDMA capsules being 13.5 grams, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW); and,
(ii) the supply of prohibited drugs of not less than a commercial quantity to unknown persons in the Campbelltown area, such supply being of 140 grams of MDMA, valued at $8000, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).
(4)      That the Court enter convictions in respect of each offence accordingly.

Catchwords:
CRIMINAL PROCEDURE — Trial — Judge alone
CRIME — Defences — Mental illness – Standard of proof to the civil standard – Burden of proof on the accused – whether the accused was labouring from a defect of reason owing to a disease of the mind as to not know that what he was doing was wrong at the time of the offending – expert evidence of forensic and treating psychiatrists – accused an unreliable historian
CRIME — Drug offences — Conspiracy — Supply prohibited drug — Large commercial quantity – whether the accused intended to carry out the agreement
CRIME — Drug offences — Supply prohibited drug — Commercial quantities
CRIME — Drug offences — Ongoing supply — Availability of alternative verdicts – whether each relevant supply can be made out to the requisite standard of proof

Legislation Cited:
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act 1995 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:
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

Category: Principal judgment
Parties: The Director of Public Prosecutions
Koray Kuroz
Representation:
Counsel:
Ms M. Fleeton (Crown Prosecutor)
Mr R. Pontello SC (Accused)
Solicitors:
The Office of the Director of Public Prosecutions (ODPP)
Mr L. Premutico (The Defenders Lawyers)

File Number(s): 2016/358944
Publication restriction: None

Judgment

On 26 June 2020, the Crown presented an indictment against the accused in respect of the following counts, namely, that the accused:

Between 17 May 2016 and 26 May 2016, at Sydney in the State of New South Wales, did conspire together with Michael…

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 Kuroz

Details

AGLC: R v Kuroz [2020] NSWDC 427
Case: [2020] NSWDC 427
Decision Date: 07 August 2020

CaseChat Overview and Summary

The case of R v Kuroz involved the respondent, who was charged with multiple counts of drug offences, including conspiracy to supply, and supply of prohibited drugs in commercial quantities. The case was heard by a judge alone in the Supreme Court of New South Wales. The respondent contested the charges on various grounds, including claims of mental illness and unreliability as a historian. The court was tasked with determining the credibility of the respondent's defences and whether the prosecution had proven each charge beyond reasonable doubt.

The central legal issues the court had to address were whether the respondent was labouring from a defect of reason owing to a disease of the mind, and thus exempt from criminal responsibility under the relevant provisions. Additionally, the court needed to ascertain whether the respondent had the requisite intent to carry out the alleged conspiracies and supply of prohibited drugs. The reliability of expert evidence provided by forensic and treating psychiatrists was also a key issue, given the respondent's assertion of mental illness and unreliability as a historian.

In its reasoning, the court considered the evidence presented by both parties, including expert psychiatric opinions and the respondent's own testimony. The court found that the prosecution had met the burden of proof in establishing the respondent's guilt for counts 1, 2, and 3, and for two statutory alternative offences related to count 4. The court concluded that the evidence did not support a finding that the respondent was labouring from a defect of reason owing to a disease of the mind, and that the respondent's intent to carry out the conspiracies and supply was evident from the circumstances. The court also found that the respondent was not a reliable historian, but this did not undermine the prosecution's case.

The final orders of the court were that the respondent be found guilty of counts 1, 2, and 3 on the indictment, and not guilty of count 4. The court also found the respondent guilty of two statutory alternative offences under the Drug Misuse and Trafficking Act 1985 (NSW). Convictions were entered accordingly for each offence.

Orders

Orders of the court

(1) That the accused is found guilty of counts 1, 2, and 3 on the indictment;

(2) That the accused is found not guilty of count 4 on the indictment;

(3) That the accused is found guilty of two statutory alternative offences to count 4 pursuant to section 25A(4) of the Drug Misuse and Trafficking Act 1985 (NSW), namely:

(i) the supply of prohibited drugs to Athanasios Syrios on or about 9 June 2016, in the amount of 160 MDMA capsules being 13.5 grams, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW); and,

(ii) the supply of prohibited drugs of not less than a commercial quantity to unknown persons in the Campbelltown area, such supply being of 140 grams of MDMA, valued at $8000, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).

(4) That the Court enter convictions in respect of each offence accordingly.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Kuroz [2020] NSWDC 427
Hearing dates:	29 – 30 June 2020 (Trial); 1 – 3, 7 – 9, 13 July 2020 (Trial); 7 August 2020 (Judgment)
Date of orders:	7 August 2020
Decision date:	07 August 2020
Jurisdiction:	Criminal
Before:	Weber SC DCJ
Decision:	(1) That the accused is found guilty of counts 1, 2, and 3 on the indictment; (2) That the accused is found not guilty of count 4 on the indictment; (3) That the accused is found guilty of two statutory alternative offences to count 4 pursuant to section 25A(4) of the Drug Misuse and Trafficking Act 1985 (NSW), namely: (i) the supply of prohibited drugs to Athanasios Syrios on or about 9 June 2016, in the amount of 160 MDMA capsules being 13.5 grams, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW); and, (ii) the supply of prohibited drugs of not less than a commercial quantity to unknown persons in the Campbelltown area, such supply being of 140 grams of MDMA, valued at $8000, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). (4) That the Court enter convictions in respect of each offence accordingly.
Catchwords:	CRIMINAL PROCEDURE — Trial — Judge alone CRIME — Defences — Mental illness – Standard of proof to the civil standard – Burden of proof on the accused – whether the accused was labouring from a defect of reason owing to a disease of the mind as to not know that what he was doing was wrong at the time of the offending – expert evidence of forensic and treating psychiatrists – accused an unreliable historian CRIME — Drug offences — Conspiracy — Supply prohibited drug — Large commercial quantity – whether the accused intended to carry out the agreement CRIME — Drug offences — Supply prohibited drug — Commercial quantities CRIME — Drug offences — Ongoing supply — Availability of alternative verdicts – whether each relevant supply can be made out to the requisite standard of proof
Legislation Cited:	Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	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
Category:	Principal judgment
Parties:	The Director of Public Prosecutions Koray Kuroz
Representation:	Counsel: Ms M. Fleeton (Crown Prosecutor) Mr R. Pontello SC (Accused) Solicitors: The Office of the Director of Public Prosecutions (ODPP) Mr L. Premutico (The Defenders Lawyers)
File Number(s):	2016/358944
Publication restriction:	None