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 1. On 26 June 2020, the Crown presented an indictment against the accused in respect of the following counts, namely, that the accused: 1. Between 17 May 2016 and 26 May 2016, at Sydney in the State of New South Wales, did conspire together with Michael Canaan, Hossein Dehgani and Alan Stewart to possess a prohibited drug for the purpose of supply, namely, 1 kilogram of 3,4-methylenedioxy-methamphetamine, being an amount which was not less than the large commercial quantity applicable to that prohibited drug, contrary to the provisions of sections 25(2) and 26 of the Drug Misuse and Trafficking Act 1985 (NSW); 2. Between 23 May 2016 and 27 May 2016, at Sydney in the State of New South Wales, did supply an amount of a prohibited drug, namely, 280 grams of 3,4-methylenedioxy-methamphetamine, being an amount which was not less than the commercial quantity applicable to that prohibited drug, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW); 3. Between 4 June 2016 and 17 June 2016, at Sydney in the State of New South Wales, did supply an amount of a prohibited drug, namely, 280 grams of 3,4-methylenedioxy-methamphetamine, being an amount which was not less than the commercial quantity applicable to that prohibited drug, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW); and, 4. Between 31 May 2016 and 1 July 2016, at Sydney in the State of New South Wales, did supply an amount of a prohibited drug, namely, 280 grams of 3,4-methylenedioxy-methamphetamine, being an amount which was not less than the commercial quantity applicable to that prohibited drug, contrary to section 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW). 1. The accused entered pleas of not guilty to all counts. 2. The accused has elected to be tried without a jury. 3. Where an accused is tried without a jury, section 133 of the Criminal Procedure Act 1986 (NSW) imposes certain obligations in relation to evidence relied upon by the Judge in reaching a verdict. That section provides: 133 Verdict of single Judge (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter. 1. Section 133(2) requires me to expose in this judgement my reasoning process linking the principles of law with the facts found and justifying the latter and, ultimately, the verdict reached (Fleming v The Queen (1998) 197 CLR 250). 2. Section 133(3) requires me to set out any requirements to give a warning to the jury, had this trial been conducted before a jury. In addition, I am required to provide the reasons why, notwithstanding the warning or in consequence of it, I have reached a particular verdict (Fleming v The Queen (1998) 197 CLR 250 at [28]). Agreed Facts 1. The parties have agreed a significant number of facts which agreement has been reduced to writing for the purposes of section 191 of the Evidence Act 1999 (NSW). 2. The First Agreed Statement of Facts (Exhibit C1) is in the following terms: That, 3,4-methylenedioxymethamphetamine is a prohibited drug that the accused knew as MDMA. That, between 29 April and 11 October 2016, the NSW Police Force lawfully intercepted various telephone services, including a service used by the accused. That, the attached table marked "A", the telephone intercepts and the transcripts of the identified telephone calls correctly identify the voices and identities of the participants to these calls. That, the attached table marked "B" and the summarised transcripts of the SMS messages correctly identify the participants to these messages. That, the attached table marked "C", contains a list of the correct telephone numbers used by those individuals. Count 1: Conspiracy to supply a large commercial quantity of prohibited drug, namely 1 kilogram of 3,4-methylenedioxymethamphetamine, between 17 and 24 May 2016, contrary to ss. 25(2) and 26 of the Drug Misuse and Trafficking Act 1985 That, between 17 and 24 May 2016, there was an agreement between the accused and Michel Canaan, Hossein Dehgani, and Alan Stewart to obtain 1 kilogram of 3,4-methylenedioxymethamphetamine to supply the drug to other persons. That, the accused participated in the agreement with Michel Canaan, Hossein Dehgani, and Alan Stewart to obtain 1 kilogram MDMA to supply the drug to other persons. Count 2: Supply commercial quantity of prohibited drug, namely 280 grams of 3,4-methylenedioxymethamphetamine, on 24 May 2016, contrary to s. 25(2) of the Drug Misuse and Trafficking Act 1985 That, on 24 May 2016, the accused supplied Hossein Dehgani with 280 grams of 3,4-methylenedioxymethamphetamine. Count 3: Supply commercial quantity of prohibited drug, namely 280 grams of 3,4-methylenedioxymethamphetamine, between 4 and 17 June 2016, contrary to s. 25(2) of the Drug Misuse and Trafficking Act 1985 That, between 4 and 17 June 2016, the Accused supplied Julian Hannan with 280 grams of 3,4-methylenedioxymethamphetamine, the Accused knew the drug 3,4-methylenedioxymethamphetamine only as MDMA, a prohibited drug. 1. I shall not set forth the context of the Tables annexed to the First Agreed Statement of Facts, as it is unnecessary to do so. 2. The Second Agreed Statement of Facts (Exhibit A9) concerned the identification of certain initials referred to in a table to the Report of Dr Stephen Allnutt, dated 24 June 2020. It is unnecessary to set out its terms. 3. The effect of the parties' agreement as to facts has been to substantially reduce the issues which are required to be determined in the trial. Agreed Essential Elements 1. The parties were also in agreement as to the essential elements of the counts on the indictment. This agreement was again reduced to writing (MFI #2), and I set out its terms below: Count 1 That there was an agreement between the accused and at least one other person (Gerakiteys v The Queen (1984) 153 CLR 317 at [334] per Deane J) to possess a prohibited drug for the purposes of supply (this element is admitted); That the amount was no less than the large commercial quantity prescribed by law for that prohibited drug (this element is admitted); The accused participated in the agreement (this element is admitted); and At the time of making the agreements, the accused, and at least one other party to the agreement, intended that the objective of the agreement should be carried into effect (Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7 at [62] per McHugh J) (this element is disputed). Count 2 That the accused supplied a substance; That the substance was a prohibited drug; That the accused knew what was supplied was a prohibited drug; The amount of prohibited drugs supplied was not less than the commercial quantity prescribed by the law for the particular drug, and; The accused knew at the time he supplied the drug that it was in an amount which was not less than the commercial quantity (all five elements are admitted). Count 3 That the accused supplied a substance; That the substance was a prohibited drug; That the accused knew that what was supplied was a prohibited drug; The amount of prohibited drugs supplied was not less than the commercial quantity prescribed by the law for the particular drug, and; The accused knew at the time he supplied the drug that it was in an amount which was not less than the commercial quantity (all five elements are admitted). Count 4 That the accused supplied a prohibited drug on three or more separate occasions (this element is disputed); and That the occasions all occurred within a period of 30 consecutive days; and In respect of each occasion the accused received a financial or material reward. Mental illness defence As to count 1 At the time of entering the unlawful agreement the subject of the conspiracy (this is the actus reis of the conspiracy offence), The accused was labouring under a defect of reason, Owing to a disease of the mind, As to not know what he was doing was wrong. As to counts 2 and 3 At the time he supplied a prohibited drug, The accused was labouring under a defect of reason, Owing to a disease of the mind, As to not know what he was doing was wrong. As to count 4 1. On at least one of the occasions the accused is alleged to have supplied a prohibited drug, 2. The accused was labouring under a defect of reason, 3. Owing to a disease of the mind, 4. As to not know what he was doing was wrong. 1. As can be seen from the agreed elements document (MFI #2), the accused raises a mental illness defence. This defence is an overarching defence, that is to say that it applies to all four counts. 2. If the accused succeeds in establishing his mental illness defence, then there will be no need to consider the remaining contentious issues in relation to the essential elements on the indictment. 3. In the event that the accused does not establish the mental illness defence then, given the agreed facts, there must be a verdict of guilty with respect to counts 2 and 3, and it will be necessary to consider the contentious issues in relation to counts 1 and 4. These are: 1. In respect of count 1, whether at the time of making the agreement as alleged, the accused, and at least one other party to the agreement, intended that the objective of the agreement would be carried into effect; and 2. In respect of count 4, whether there has been established on the evidence that the accused supplied a prohibited drug on three or more occasions in the requisite period of 30 consecutive days. 1. For completeness I should add that in the event that count 4 is not proved, the Crown seeks an alternate verdict in respect of such instances of supply of a prohibited drug as have been established on the evidence (s25A(4) Drug Misuse and Trafficking Act 1985 (NSW) ("Drugs Act")). Applicable Warnings and Directions 1. The parties were in agreement as to the warnings and directions in respect of which I should remind myself in discharging my obligations as judge of both fact and law, these were reduced to writing and were marked MFI #4. 2. It is convenient to go to those directions and warnings now, and in my analysis and findings below I shall attempt to elucidate the manner in which I have applied them. Burden and Standard of Proof 1. This being a criminal trial, the burden of proof of the guilt of the accused is placed squarely on the Crown. That burden rests upon the Crown in respect of every element or essential fact which makes up the offence with which the accused has been charged. That burden never shifts to the accused. Thus there is no obligation whatsoever on the accused to prove any fact or issue that is in dispute on the indictment. It is, thus, not for the accused to prove his innocence, but rather for the Crown to establish his guilt. 2. The Crown must prove the accused's guilt beyond reasonable doubt. It must establish its case to that standard in respect of each of the essential elements of the counts which are not agreed. 3. To the proposition that the Crown bears the onus of proof on all essential elements of the counts, there is a relevant and important exception in the present trial, namely, that in respect of the accused's defence of mental illness, the onus of proof is cast upon him. The standard required to discharge that onus is the civil standard, that is to say, on the balance of probabilities. Thus, the accused must establish his mental illness defence as being more likely than not. Considering Each Count Separately 1. I am required to give separate consideration to each of the individual counts on the indictment. This carries with it the consequence that I am entitled to bring in a verdict of guilty on some counts, and not guilty on others, if there is a logical reason for that outcome. If, however, I was to find the accused not guilty of any count, particularly if that was because I had doubts about the credibility of any of the Crown evidence, I would have to consider how that conclusion affected my consideration of the remaining counts. Alternate Verdicts 1. As I have previously indicated, the Crown relies on alternative verdicts in respect of count 4 on the indictment. As such, if I am not satisfied that the Crown has proved beyond reasonable doubt all of the necessary elements of count 4, then I must find the accused not guilty of that charge. In that eventuality however, I am then required to consider whether the Crown has proved beyond reasonable doubt each of the elements of such alternative offences as may be available. The ingredients of the principal offence and the alternative offences are not identical. If I find the Crown has proved beyond reasonable doubt all of the elements of the alternative offences then I must proceed to find the accused guilty on the alternative verdicts. 2. I must bear steadily in mind that it is impermissible for me to use the availability of an alternative verdict as an invitation to compromise my verdict in respect of the principal count. Inferential Decision Making 1. In respect of some of the contentious elements of the counts, the Crown relies on the drawing of inferences to establish the counts beyond reasonable doubt. 2. Inferences are conclusions of fact drawn rationally from the combination of proved facts. I must ensure that any inference which I draw from direct evidence is a rational inference to be drawn in all the circumstances. The Accused Giving Evidence 1. The accused gave evidence in the proceedings. In addition, the accused participated in a police interview which was recorded in what is known as an "ERISP". This interview was tendered in the Crown Case (Exhibit C14). 2. The accused's evidence must be considered in the same way as the evidence of other lay witnesses. It is important for me to recall however, that the fact the accused has given evidence does not alter the burden of proof in relation to the essential elements of the counts. In this regard I must bear in mind that even if I prefer the Crown's evidence over the evidence of the accused, I must not proceed to a guilty verdict against the accused unless I am satisfied beyond reasonable doubt as to the truth of the Crown's evidence. 3. The necessary corollary of this is that even if I positively disbelieve the accused, I cannot proceed to a finding of guilt unless I am nonetheless satisfied that the Crown has established guilt beyond reasonable doubt. It also follows that I cannot find an issue against the accused contrary to his evidence if that evidence gives rise to a reasonable doubt as to that issue. 4. This direction will have particular applicability to the disputed elements of counts 1 and 4. 5. What I have set out above in relation to the decision of the accused to give evidence having no effect on the burden of proof, which falls upon the Crown in respect of the essential elements of the counts, has no application in respect to his mental illness defence. This is so as the accused bears the onus of proof, to the civil standard, in relation to this issue. As such, if I do not accept the accused's evidence, or any part of it, in relation to the issue of the mental illness defence, then this can be brought to account by me in my decision making in relation to that defence. 6. As I have indicated, the police ERISP of the accused was tendered in the Crown's case. On numerous occasions in that police interview the accused declined to answer the questions being asked of him. In doing so, the accused was exercising his right to remain silent, a right enjoyed by all. As such, it would be wrong for me to use the fact that he has chosen to remain silent in any way against him, and as such I will not do so. I must also not speculate as to what the accused might have said had he answered the police questions. Evidence Given by Audio Link 1. During the hearing of the matter, the evidence of Mr Charley Leighton and Mr Adam Joseph Gazzard was given by way of nonvisual audio link. This course was adopted with the consent of the parties. I must treat that evidence in the same way as any other evidence in the proceedings. That is to say that I should give it neither more nor less prominence because of the manner in which the evidence was adduced. Expert Evidence 1. There was a significant amount of expert evidence given in the trial. This evidence was from psychologists and psychiatrists, and took the form of both the tender of clinical notes and reports of treating clinicians, and the reports and vive voce evidence of forensic psychiatrists called by both parties. The accused's treating psychiatrist also gave evidence. The psychiatric evidence went to the accused's defence of mental illness. I shall deal with the detail of this evidence, and describe the nature of the differences of opinions expressed by the experts later in these reasons. 2. I remind myself that an expert witness is a person with specialised knowledge based on that person's training, study, or experience. As such an expert witness is entitled to give the Court his opinion in respect of matters within his or her area of expertise. 3. The value of expert opinion however, is very much dependant on the reliability and accuracy of the material upon which the expert has used to reach his or her opinion. The value of expert evidence is also dependant on the degree to which the expert analyses the material upon which his or her opinion was based, and upon the skill and experience brought to bear in formulating the opinion given. I bear in mind that experts can differ in level and degree of their experience, training, and study, and each can still be an expert qualified to give an opinion where that opinion is based on the witnesses' specialised knowledge. 4. As I have indicated, the experts' evidence went to the issue of the accused's mental illness defence, and I remind myself that if, having given the matter careful consideration, I do not accept that the evidence of any particular expert, or indeed all of them, I do not have to act upon that evidence. This is particularly so if the facts upon which the opinion is based do not accord with the facts, as I have found them. In assessing the expert evidence I am also, to a degree, entitled to take into account my own common sense and experience of life, if these are relevant to the issue upon which the expert evidence has been put to me. 5. It is ultimately for me to decide which evidence and whose opinion I accept, either in whole or in part, or which, if any, of the expert evidence I reject, either in whole or in part. I am entitled to consider the particular evidence in the context of all the evidence that is before me, and especially that part of the evidence which may have a bearing on the acceptance or otherwise of a particular opinion. 6. Later in these reasons, I shall deal with the detail of the facts and assumptions underlying the opinions of various experts. For present purposes however, I should remind myself that when the witness' opinion is based on what he or she has been told, or the assumptions which he or she is being asked to make, I must analyse the evidence as to what they were told, and determine the extent to which the opinion depends on those facts or assumptions being correct. 7. If I am satisfied that the facts have been proved, or if I am satisfied that an assumption is valid, than it is a matter for me to decide whether the opinion based on those facts or assumptions is correct. On the other hand, if I decide that the facts have not been proved, or the assumptions are not valid, than any opinion based on them will definitionally be of no assistance to me, because it has no foundation. In those circumstances, I would disregard that opinion. The Mental Illness Defence 1. As I have earlier indicated, the accused relies on a defence of mental illness. If he establishes this defence then he is not responsible for his actions according to law. This issue, as I have earlier indicated, arises as an exception to the general rule concerning both the burden and standard of proof in a criminal trial insofar as the onus is on the accused to prove this defence to the civil standard. If the accused establishes on the balance of probabilities that he was mentally ill at the time of committing the acts the subject of the counts, he is then entitled to a verdict of "not guilty by reason of mental illness". 2. I shall return in due course to explain the legal and practical consequences of such a verdict, both to the accused and to the community at large. 3. It is crucial for me to bear in mind that the relevant time to be considered in connection with the mental illness defence is the time when the Crown alleges that the acts constituting the offences occurred. As such, I am not concerned with the mental state of the accused either before or after that time, except to the extent that such matters may assist me in determining what the accused's mental state was likely to have been at that time. 4. To establish that the accused is mentally not responsible for his acts according to law, the accused must show that as a result of a defect of reason, owing to a disease of the mind, he did not appreciate the nature and quality of the act, or that the act was wrong. In the circumstances of this case, the accused did not put in doubt his appreciation of the nature and quality of the acts involved, rather his defence was limited to an assertion that he did not know that those acts were wrong. 5. The expression "disease of the mind" requires that the accused's state of mind must be one of disease, disorder, or disturbance arising from some condition, which may be temporary or of long standing. It does not matter whether such disease is curable or incurable. Such a condition may have been caused by some physical deterioration of the brain cells, but need not be necessarily so caused. 6. The mental illness may arise from some mental malfunction with no apparent organic basis, or where the cause of the disease may be unknown, provided that in all cases it results in the function of reason, memory, or understanding being thrown into a state of derangement or disorder. As such, the law draws a distinction between a defect of reason from an underlying mental illness, as distinct from a reaction of a healthy mind to some extraordinary external factor which is transient, that is to say, which is passing and not prone to re-occur. 7. A defect of reason, memory, or understanding involves a disorder of the capacity to reason such that it prevented the accused from, relevantly for present purposes, knowing that the act was wrong, according to the ordinary standards of people in our community. 8. As to whether the accused did not know the act to be wrong, the question I must ask myself is whether the accused could be said to know, in a sense appreciating or understanding, that the act was wrong. If through a disease, disorder, or disturbance of the mind he could not think rationally of the reasons which to ordinary people would make that act right or wrong then the defence will be made out. 9. Section 37 of the Mental Health (Forensic Provisions) Act 1990 (NSW) requires that I bear in mind the practical consequences of a finding that the accused was not "guilty on the ground of mental illness". If my verdict is one of not guilty on the ground of mental illness, then it is necessary for me, in my role as a sentencing judge, to determine what should be done with the accused. If I am satisfied that neither his safety nor the safety of any member of the community is seriously put at risk by his release, then I can order his release into the community, either unconditionally or on such conditions as I might believe are necessary to further both his welfare and that of the community. 10. Or if on the other hand, I found that it was not appropriate to release the accused at this point in time, I am able to make an order that he be detained in custody until he is released by "process of the law". This means not only that the accused remains in custody until a decision is made to release him, but also he becomes what is known as a forensic patient, and falls under the supervision of a body called the Mental Health Review Tribunal. 11. I propose to deal first with the accused's mental illness defence. The Accused 1. The accused is a 23 year old man. He was born on 20 November 1996. At the time of the alleged offending he was 19 years of age. 2. He attended Knox Grammar School from 2003, leaving school in 2014. He did well at school. He achieved an ATAR ranking of 96. In 2015, he enrolled in a Bachelor of Commerce degree at the University of Sydney. During that year, he transferred to the University of Technology Sydney ("UTS"). He did not complete his course at UTS. The Psychiatric Evidence 1. The accused had a long history of psychological/psychiatric problems prior to the alleged offending. The subpoena material tendered at trial (Exhibit C5) disclosed that on 14 March 2013, the accused's general practitioner, Dr Peter Beder, referred the accused, then aged 16, to Dr Kam Wong, a consultant psychiatrist, "for an opinion and management of his severe anxiety and anger management" (Exhibit C5, page 233). 2. It seems that the accused had become psychologically adversely affected by the collapse of his parents' marriage. Dr Wong diagnosed the accused to be suffering from depression and anxiety. On 4 April 2013, Dr Wong reported to Dr Beder that he had: "…diagnosed an adjustment disorder with depressed mood against the background of unresolved grief on the breakup of an idealised family as a result of his father's problems" 1. In April 2015, Dr Wong diagnosed the accused with having major depression and performance anxiety. He went on to explain that the major depression was secondary to parental separation, with ongoing conflicts and financial hardship because of his father's business failure. 2. On 12 May 2014, Mr Whitfield, the Knox Grammar School psychologist, emailed Dr Wong. He reported that the accused "…at present… is displaying some potentially manic behaviours which if not reduced may get him into a lot of trouble at school here." He reported that the accused "is lacking insight, being argumentative and destructive in some classes", and that the accused "failed to see reason". Mr Whitford reported the accused having an "elevated mood". In a short reply Dr Wong said, "He does sound 'manic', a state which I've not witnessed before." Dr Wong, who was overseas at the time, said that he arranged had to see the accused on his return to Sydney (Exhibit C5, page 70-71). 3. Significantly, Dr Wong's notes of his consultations with the accused thereafter do not support any diagnosis of mania. To the contrary, his notes state, "not manic" and "not psychotic" (Exhibit C5, page 256). There is no suggestion that Dr Wong had altered his diagnosis of the accused following Mr Whitfield's email to him. Ms Morrow 1. The accused neither sought nor received psychological or psychiatric care in 2015, his first year at university. Indeed, this was the state of affairs until December 2016. At that time, which post-dated the accused's arrest and release on bail, he attended on Ms Louise Morrow, a clinical psychologist. 2. Ms Morrow's notes of her consultation with the accused on 10 January 2017 reveal that he disclosed to her a history of illicit drug use, including use of MDMA and cocaine. She reported being told of a gambling problem. He also reported impulsivity, difficulty obtaining and sustaining attention, chronic boredom, and low self-esteem. She reported that the accused told her of being restless, talkative, changing subjects frequently, distractible, and with racing and scattered thoughts. Her notes suggest that she made a tentative diagnosis of Attention Deficit Hyper-active Disorder ("ADHD"). 3. Ms Morrow had the accused complete an adult ADHD self-report scale, and ultimately made the diagnosis of ADHD in a subsequent report dated 19 April 2018 to the accused's then solicitors. Ms Morrow confirmed that: "Mr Kuroz's psychological presentation was consistent with the diagnosis of attention deficit hyperactivity disorder (ADHD) characterised by hyperactive/impulsive subtype" (Exhibit C5, page 136). 1. On 17 May 2018, the accused again saw Ms Morrow. Her notes reveal that on the previous Friday, a co-accused, Julian Hannan, who was also a school friend of the accused, came before the Court for sentence and received a two year custodial sentence. Ms Morrow's notes revealed that "an old school friend and co-accused was sentenced to 2 years imprisonment last Friday". She recorded that the accused said it is a certainty that he too will be imprisoned due to "parity". She reported that the accused was "very upset, very fearful, frightened about going to jail." She reported that he feared that he would not survive as he was not tough enough for prison (Exhibit C5, page 145). Dr Patterson 1. Following the accused's release on bail, Dr Beder also referred the accused to Dr Greg Patterson, a clinical psychiatrist. The referral, which was dated 31 May 2017, sought "… an opinion and management of anxiety and depression. Could you please assess Koray with respect to the possibility of ADHD." The accused attended on Dr Patterson on 13 June 2017 and completed an adult self-report scale symptom checklist, which is a questionnaire which aids in the diagnosis of ADHD. He also completed a DASS 21 form, a questionnaire which provides information for clinicians in respect of possible depression, anxiety, and stress. 2. Dr Patterson diagnosed the accused as suffering from ADHD. This, it will be recalled, was also Ms Morrow's diagnosis. He prescribed the drug Strattera, a commonly used drug to treat ADHD. The evidence suggests that the accused consulted with Dr Patterson on at least 8 occasions. 3. On 19 September 2017, the accused emailed Dr Patterson suggesting that he (the accused) might have obsessive compulsive disorder ("OCD") (Exhibit C5, page 40). 4. On 25 July 2018, the accused emailed Dr Patterson to confirm a 40 minute appointment to see him on the following Monday. He stated that: "I thought it would be a good idea to email you beforehand, as I'm hoping you can conduct an assessment for bipolar disorder… I want to discuss a few other things, I think it is crucial we get it all right. Given the time constraints we may need to follow up but I do hope you can conduct an assessment for bipolar disorder… I have completed a self-assessment via the Black Dog Institute and have scored very highly 53 out of 54" 1. The reference to the Black Dog Institute is a reference to a website operated by the Black Dog Institute. This website provides visitors to it with access to a self-report questionnaire which may be of assistance to clinicians in the diagnosis of bipolar disorder. 2. The accused completed this questionnaire at the suggestion of his then girlfriend's father, who himself had suffered from bipolar disorder. 3. The accused attended on Dr Patterson as arranged, but was disappointed when Dr Patterson did not share his view that he (the accused) suffered from bipolar disorder. Upon being so advised, the accused made immediate arrangements to consult for the first time with his current treating psychiatrist Dr Tanase. Indeed, such was his urgency in obtaining a further opinion on the possible diagnosis of bipolar disorder that he succeeded in seeing Dr Tanase on that very day. 4. At the consultation, the accused did not disclose to Dr Tanase his consultation with Dr Patterson earlier on that day. There were other notable failures by the accused to make disclosures to Dr Tanase, to which I will later return. 5. On 6 August 2018, the accused made a written complaint concerning Dr Patterson to the practice at which Dr Patterson practiced ("Mind Care"). He told Mind Care that he "left the appointment last Monday reporting severe symptoms of bipolar disorder type 1." He said that he left the practice wanting to kill himself. He claimed that Dr Patterson laughed at him, and took him as a joke. He reported that Dr Patterson accused him of manipulating the symptoms to aid his legal case. 6. The managers of Mind Care indicated that they would have Dr Patterson respond (Exhibit C5, page 48). 7. Dr Patterson responded on 28 August 2018. In that response, Dr Patterson writes: "You were interested in an assessment for bipolar disorder, having scored highly on the Black Dog Institute self-report scale. You felt that bipolar disorder explained your previous symptoms. I conducted a thorough assessment during the 40 minute appointment. I did not believe that you had historical or current features of bipolar disorder, either type 1 or type 2." 1. Dr Patterson went on to say that there appeared to be no history consistent with mania, and that he continued in his belief that the accused's history and presentation best fit with the ADHD diagnosis for which he was being treated. Dr Patterson denied saying that the accused was manipulating his history to aid his legal case's position. He noted that the accused was "disappointed" that Dr Patterson did not diagnose bipolar disorder, and was seemingly surprised with this reaction as he considered that in giving his opinion to the accused, he was conveying "what was in fact good news." 2. Dr Patterson stated that he had not gained any history from the accused which was consistent with bipolar disorder over the previous consultations, including the initial assessment on 13 June 2017 (Exhibit C5, page 51). Dr Tanase 1. On 30 July 2018, Dr Tanase reported to Dr Beder following his initial consultation with the accused. This report states: He reported mood instability with periods of being very high and very low. He also reported poor sleep, irritability, suicidality, racing mind. [He] Also mentioned paranoid delusions, grandiose illusions, and ordinary hallucinations at times. He's been having the symptoms for a long time, but recently due to relationship issues he decided to do something about it. 1. It should be noted that the accused had never given a history of paranoid delusions, grandiose illusions, or hallucinations to any previous mental health clinician upon whom he attended. 2. Dr Tanase further reported that the accused denied any drug use to him (Exhibit C5, page 5). This was inconsistent with the accused's history as provided by him to Ms Morrow and Dr Patterson. 3. On the basis of the accused's history provided to him, Dr Tanase diagnosed the accused with bipolar affective disorder. 4. The Crown submitted that the history provided by the accused to Dr Tanase demonstrated a significant change in symptoms from those that the accused reported to Ms Morrow and Dr Patterson. It suggested that his unsuccessful consultation with Dr Patterson, and his attendance on Dr Tanase, coincided with the commencement of a plan on the part of the accused to fabricate a defence of mental illness. 5. As I have indicated, the psychological and psychiatric evidence in the hearing consisted of the extensive documents produced under subpoena. In addition, the parties qualified experts who gave evidence by way of reports and viva voce evidence. 6. The Crown qualified Professor David Greenberg, a forensic psychiatrist, who provided two reports (Exhibits C3 and C4). 7. The accused relied on reports of Dr Olaf Nielssen and Dr Stephen Allnutt, both of whom are forensic psychiatrists (Exhibits A1; A2; A3; A4; A5; and, A8). In addition, the accused relied on a report of Dr Tanase (Exhibit A6). Finally, I should mention that there was tendered a report, prepared for other purposes, of Dr Roberts in respect of the accused's father, who had earlier in time been diagnosed with bipolar disorder (Exhibit A7). Professor Greenberg 1. Professor Greenberg did not support a diagnosis of bipolar disorder. He opined that this disorder is seen in the psychiatric profession as having two forms. Both forms require symptoms extending over a period of 4 consecutive days. Type 1 bipolar is the more serious and requires the presence of at least one manic episode experienced by the patient for its diagnosis. A Type 2 diagnosis does not require the presence of a manic episode, but rather is characterised by the presence of hypomania. 2. The accused attended on Professor Greenberg on 20 February 2019. Professor Greenberg reports that at that consultation the accused told him that at the time of the offending his depression went away, that he felt "invincible", "unstoppable", and that he said he started "hearing an angel". When asked to explain the experience, the accused explained that he was "having a conversation with another person in my head, you and the angel." Dr Greenberg asked the accused about the content of the conversations with the angel, in response to which the accused said he could not recall but added "this is when all the changes happened…", and he "felt someone else controlling my body, my hands". When asked for an explanation as to how, in those circumstances, he came to be dealing drugs, he said one of his co-accused, Daniel Dehgani, asked him if he could buy drugs, in response to which the accused said, "Stuff came out of my mouth. Another person talking, but not me. Later, I had an argument in my head with both highs and lows." Professor Greenberg reports the accused as saying, "I was high. But I was invincible, a king of the world. Beyond the law." 3. Professor Greenberg's report states that later in the consultation the accused said to him that "what's coming out of my mouth [is] not me. Like another human being. Like another human being. I didn't realise what I was doing. I didn't know it was wrong. I had no control." When Professor Greenberg asked the accused to explain how he knew about the price for premium MDMA, he said, "I'm making it up. Things come out of my mouth. Not actually my words." 4. I shall refer to these symptoms reported by the accused to Professor Greenberg as being "the Reported Manic Symptoms". 5. Professor Greenberg, in his reports, pointed to the propensity of the accused to give quite different reports of his symptoms to different mental health professionals. He pointed especially to the different reports given by the accused to Ms Morrow and Dr Patterson on the one hand, compared to the report given to Dr Tanase on the other. He felt that the accused was such an unreliable historian that he found it difficult to positively diagnose him. That said, he did express the view that the accused likely exhibited features of ADHD, and a possible personality disorder, with a steroid abuse disorder. It should be noted that the accused denied steroid use to Professor Greenberg, though the evidence clearly established the contrary. 6. Professor Greenberg expressed the opinion that the accused could not be said to suffer from bipolar disorder. He expressed the view that the accused did not qualify for the legal concept of "disease of the mind". He further expressed the opinion that at the time of the offending the accused was likely abusing anabolic steroids and other testosterone boosting agents, and was likely abusing various illicit substances, including MDMA and cocaine. He further opined that the use of these substances may have caused shifts in his mood. 7. Professor Greenberg concluded that the accused was not suffering from a major psychiatric illness, such as acute symptoms of an overt psychotic disorder or a manic episode associated with bipolar disorder during the time of the alleged offences. 8. He went on to conclude that the accused was not labouring under a defect of reason caused by a disease of the mind. 9. As to the Reported Manic Symptoms, Professor Greenberg's view was that if they in fact were experienced, they represented serious psychotic episodes. He expressed the opinion that the accused's account of the Reported Manic Symptoms was totally implausible, and that those symptoms were inconsistent with his behaviour at the time of the alleged offences. In that regard, it should be noted that Dr Greenberg had been provided with, and read, the transcripts of the intercepted phone calls involving the accused, upon which the Crown relied. 10. Professor Greenberg expressed the view that the accused did know that the acts which he performed were both legally and morally wrong, and that he was able to reason with a degree of sense and composure, as judged by an ordinary person at the time of the alleged offences. Dr Nielssen 1. Dr Nielssen diagnosed the accused with bipolar disorder. He made the diagnosis on the basis of at least two episodes of normally elevated mood, including an episode of mania with psychotic symptoms and a history of several periods of significant depression. He also relied on the fact that the accused had been diagnosed with bipolar disorder by Dr Tanase, who was apparently treating him successfully with lithium. In his second report, he expressed the view that on the balance of probabilities the accused was in a manic state around the time of the offending. 2. I should also add that the accused also gave Dr Nielssen a history of symptoms consistent with the Reported Manic Symptoms. 3. Notwithstanding having taken a history consistent with those symptoms, Dr Nielssen concluded that on balance his opinion was that the accused was hypomanic at the time of the offending (Tp 232.33). This would lead to a diagnosis of bipolar type 2 rather than bipolar type 1, the latter of which requires the occurrence of a manic episode. 4. This conclusion to some extent represented a change in his diagnosis. This is so, for as I have previously indicated his initial diagnosis appears to rely to some extent on the existence of a manic episode. Dr Allnutt 1. Dr Allnutt also reported that the accused reported to him the Reported Manic Symptoms, which Dr Allnutt described as "auditory phenomena". Dr Allnutt labelled these symptoms as "vague". He did not diagnose a psychiatric disorder on account of them. 2. Dr Allnutt opined that the police intercepts disclosed no evidence of psychosis, but said that the context of the intercepts were not, in themselves, sufficient to establish that the accused was not in a hypomanic state at the time of the commission of the offences. He relied on the possible existence of a family history of bipolar affective disorder (suffered by the accused's father). He further relied on the fact that Dr Tanase and Dr Nielssen had diagnosed bipolar disorder, and that the accused seemed to have responded well to Dr Tanase's treatment. 3. Dr Allnutt expressed the following opinion: Thus, ignoring his self-reported symptoms, there is a weight of evidence which is consistent with a recurrent mood disorder such a bipolar affective disorder or cyclothymic disorder (a less severe form of bipolar affective disorder). 1. Dr Allnutt went on to favour the diagnosis of bipolar affective disorder. He expressed the view that, at the time of the alleged offending, the accused was experiencing a disease of the mind being either ADHD and/or hypomania. 2. His view was that, if one rejected the diagnosis of bipolar disorder, he was likely suffering from ADHD with recurrent depressive disorder associated with anxiety. Dr Tanase 1. Dr Tanase emphasized that, in giving his report, he was not a forensic psychiatrist, but rather a treating psychiatrist. He explained that, as such, he worked on the basis that the reported symptoms of his patient were true symptoms. 2. In cross-examination, Dr Tanase disclosed that he had not been provided with a copy of Professor Greenberg's report. He was then taken through some of the crucial features of that report, following which he cast some doubt on the diagnosis of bipolar disorder which he had made. He was also taken through some aspects of Dr Patterson's clinical notes which demonstrated that the accused presented significantly differently to Dr Patterson compared to the history given to him. 3. Dr Tanase's diagnosis also rested on an incorrect assumption that the accused had been previously diagnosed as suffering from bipolar disorder (Exhibit C5, page 6). 4. Dr Tanase, in cross-examination, gave evidence that he was unaware of the fact that Dr Patterson had seen the accused on the morning when he (Dr Tanase) first saw him. He also was unaware of the circumstances in which the accused left Dr Patterson's practice, that is to say, dissatisfied with Dr Patterson's failure to accept the accused's self-diagnosis of bipolar disorder. He said that these matters were a cause of concern for him. When he was asked whether, in light of all of the information with which the cross examiner provided him, he would still make the diagnosis of bipolar disorder, he replied, "Probably not" (Tp 209.8). 5. It will be recalled, in this regard, that both Dr Nielssen and Dr Allnutt placed some reliance in their diagnoses of bipolar disorder on the fact that the treating doctor, Dr Tanase, had diagnosed bipolar disorder. The evidence of the accused 1. As I have earlier indicated, the accused gave sworn evidence. He gave his evidence in a very animated manner. His speech was rapid. He tended to flit from topic to topic. He was frequently unresponsive in his answers, and demonstrated a clear preparedness to "load up" his evidence with unresponsive material which he believed would assist his case. He repeatedly used the witness box as an opportunity to advocate his cause. 2. Examples of this kind of advocacy from the witness box were many. He often unresponsively said that he did not know what he was doing was wrong. He regularly unresponsively said that he thought he was "invincible". He also regularly unresponsively said that he was dealing in drugs to help people (Tp 284.42-48 is a good example of him reverting to all three refrains. Other examples are Tp 305.28; 306.10-12; 314.22-25). 3. He also unresponsively asserted that at the time of the alleged offending conduct he thought he was "a king" (Tp 284.42-48). 4. I have had the benefit of hearing hours of lawfully obtained police intercepts of the accused's telephone calls, in which his drug dealing was discussed. This evidence was important in my determination of the mental illness defence. 5. These police intercepts, of course, were undertaken at the time of the alleged offending. In those intercepts, the accused did not present with the rapid-fire speech patterns which he exhibited in the witness box, nor did he flit from topic to topic in the intercepts in the manner in which he did in court. The police intercepts reveal the accused to be a person quite different from the person who gave evidence before me. 6. Similarly, in the police ERISP, the accused did not present in a manner which was even remotely consistent with the accused's witness box demeanour. In the police interview he presented as calm and calculating. He was apparently making very rational decisions as to when to speak and when to remain silent. I had the impression that he was using the interview to ascertain what the police knew, while at the same time being careful not to incriminate himself. 7. I find the proposition that at the time of the alleged offending the accused's mind and his mouth were controlled by an angel or angels, who were speaking through him, to be totally fanciful. The intercepts demonstrated that the accused was capable of using drug dealing patois, including code words for various forms of drugs and the cash which was used to transact them. His knowledge of the facts informing the supply and demand in the illegal drug world of Sydney was sufficient for him to negotiate prices for both purchase and sale of MDMA. 8. His familiarity with MDMA was sufficient to advise others on the relative quantities of different available types of the drug. 9. I similarly reject his assertion that he did not know what he was doing was wrong. On a number of occasions he admonished parties with whom he was speaking for discussing drug dealing matters over the telephone (see, for example, page 214 of Exhibit C2). When asked to explain this, he was unable to do so. 10. At Tp 259, line 10-21, the following appears: Q. What about the last reference there, which is at the top of page 214 of the transcript, "I don't want to talk about it on the phone"? What was that about? A. I – I don't – I don't recall. Q. Didn't want to talk about what on the phone? A. I think I didn't want to talk about – I don't know. That's what – I forgot the context. Obviously, I'm not wanting to talk about the steroids and drugs on the phone. That's – that's – that's what I'm saying here. Q. Why not? A. In my mind, I thought I was invincible. I didn't think that I was doing anything wrong. It's as simple as that. Q. Then why don't you want to talk about it on the phone then? A. I really don't have an explanation for that. It's very strange. 1. It should be noted that this evidence was adduced in chief. 2. Similarly, I reject the accused's frequently advanced assertion that he was only participating in drug deals to "help people out". He never attempted to elaborate on how the supply of large quantities of MDMA to people was of assistance to them. In this regard it should be noted that on numerous occasions the accused speaks of his need to make a profit from the transactions that are the subject of conversations recorded in the intercepts (see, for example, page 119 of Exhibit C2). If the accused was truly of the belief that there was nothing wrong with supplying drugs to help his fellow man, I am left wondering why it was necessary for him to make a profit from the transactions. 3. In addition, a series of intercepts records his grief at the realisation that he has parted with a large quantity of drugs without being paid. One such intercept, transcribed and otherwise detailed at page 32 of Exhibit C20, includes the following exchange recorded on 15 June 2016, in which V2 is the recorded voice of the accused. It proceeds as follows: V2: I'm very stressed at the moment V1: Why's that? V2: I don't know, I got a feeling I just did something really bad V1: Something really bad? V2: Yeah about yesterday, that person, oh fucking hell. I don't know if I'm being paranoid or if I just gave away free shit and I am not going to get paid and then I will have to spend the next week going after cunts 1. This, to my mind, is inconsistent with the suggested motive of the supply being the involvement of the accused in the illicit drug dealing industry for the benefit of third parties. 2. It should be said, however, that the intercepts do reveal occasions at which the accused appeared to exhibit a more heightened mood than on other occasions. That said, it should be understood that at the time of the alleged offending the accused was illegally using anabolic steroids. The expert evidence was that these agents cause heightened mood (at Tp 50-51:42-1 and 65:9-14 per Professor Greenberg; at Tp 175:19-41 per Dr Allnutt; and, at Tp 215:6-15 per Dr Nielssen). Indeed, the accused, in the intercepts, referred to a number of road rage incidents which he appeared to attribute to his steroid use. 3. I have previously commented on the accused's advocacy from the witness box. 4. Unfortunately, the accused's deficiencies as a witness went beyond merely being an advocate for his cause. I formed the very distinct impression that the accused was using the witness box as a stage, and, as if a lead actor upon which stage, he would play the part of a person suffering from the mental illness from which he claims he suffers, so as to save himself from conviction and possible incarceration. 5. I do not accept the evidence of the accused on any matter, unless it is contrary to his interest. 6. I formed this view for at least the following reasons: 1. The stark contrast between his presentation in the witness box and his presentation in the police intercepts, and his ERISP; 2. His obvious preparedness to lie to psychiatrists and psychologists as to his symptoms when he perceived it to be expedient to do so. This led me to a conclusion that the accused was happy to abandon the truth when he perceived it to be in his best interest to do so. 3. The marked changes in his reports of symptomology and self-diagnosis of bipolar disorder following the incarceration of his co-accused which provide both the motive and explanation for his invention of his exaggerated psychiatric symptomology. 4. The incompatibility of the Reported Manic Symptoms with the detail of the transactions which the intercepts recorded. In this regard I should note that the accused submitted that the better view of the psychiatric evidence was that a person could function at work, performing tolerably simple tasks, while suffering from bipolar affective disorder. Be that as it may, this opinion, in my view, could not extend to explaining the capacity of the accused to undertake the drug transactions which were captured on the intercepts, while suffering from the hallucinatory symptoms which he alleges. 5. The incompatibility of his assertion that he believed that he was involved in drug dealing to help third parties with the reality of his striving to profit from it. 6. The incompatibility of the accused's assertion that he did not know of the wrongfulness of his actions with the use by him of code type language which was designed to disguise the nature of the transactions being discussed in the intercepts. To this should be added his consciousness of the need to keep discussions on the telephone to a minimum, obviously for fear of police interception, together with his admonition of persons with whom he was dealing as to the inadvisability of discussing drug related matters on the telephone. 1. I should add that the accused adduced evidence, primarily of friends, who attested to erratic behaviour on the part of the accused, both in high school and after leaving school. This evidence did not affect my conclusions at which I have arrived, as stated above. 2. I have no doubt that the accused was capable of acting erratically. As I have indicated, one of his uncontradicted diagnoses was of ADHD. I have taken evidence of his erratic behaviour into account , but it does not cause me to alter my conclusions. 3. I have also no doubt as to the evidence that the accused was at times capable of exhibiting elevated mood at the time closer to the offending behaviour. As I have indicated, there were occasions when the intercepts suggested such elevated mood. I have dealt with that evidence earlier. Examples of elevated mood also do not cause me to alter the conclusions at which I have arrived. 4. I find the accused's mental illness defence to be a concoction. 5. Given these findings, there is probably no need to reach a conclusion on the psychiatric evidence, nonetheless I will deal with those matters briefly. Conclusions on the Psychiatric Evidence 1. I prefer the evidence of Professor Greenberg. I agree with his opinion that the accused was such an unreliable historian as to make a firm diagnosis difficult. 2. Professor Greenberg does not accept that the accused was at the relevant time suffering from bipolar disorder. I agree with this assessment. 3. It is important, in this regard, to note the evidence of Professor Greenberg. Namely, that if the accused did, in fact, suffer from the Reported Manic Symptoms, he was at that time experiencing a very serious psychotic episode. Professor Greenberg opined that if a patient in fact was suffering from that symptomology, he or she would be diagnosed as suffering from bipolar affective disorder type 1. Professor Greenberg opined that, on no view of it, did the accused suffer from bipolar affective disorder type 1. 4. Dr Nielssen's evidence was that on balance the accused was suffering from bipolar disorder type 2 at the time of the alleged offending (Tp 232.33). 5. I have difficulty with that opinion. The accused was maintaining to Dr Nielssen that he was experiencing the Reported Manic Symptoms at the time of the alleged offending. Either that history given by the accused is to be accepted, or it is not. If it is accepted, then it would seem that a diagnosis of bipolar type 1 would follow. 6. No psychiatrist made that diagnosis. 7. If on the other hand, the accused's reported symptomology is not accepted, then there would appear to be no solid foundation for a diagnosis of bipolar type 2. This would lead to Professor Greenberg's conclusion, with which I agree. 8. I also share Professor Greenberg's scepticism as to the change in the accused's reported symptomology from the time of the incarceration of the co-accused, and the accused's defence of mental illness. 9. I do not accept the opinions of Dr Nielsenn and Dr Allnutt based, as they are, on the accused's reports of symptomology, which self-reporting I have found to be untruthful. 10. As to Dr Tanase, the treating psychiatrist, I do not accept his diagnosis of bipolar affective disorder. I do so inter alia as he rightly conceded that had he known the true position of the accused, as disclosed in cross-examination, he probably would not have made the diagnosis. Moreover, as with Dr Nielssen and Dr Allnutt, Dr Tanase's diagnosis is based upon the false conveying of symptoms to him by the accused. Conclusions on the Mental Illness Defence 1. In summary, therefore, I find the accused was not: 1. At the time of the offending; 2. Labouring under a defect of reason; 3. Owing to a disease of the mind; 4. That was such as to deprive the accused of the capacity of knowing what he was doing was wrong. 1. Thus, the accused has failed to discharge the onus of proving his mental illness defence. Count 1 1. As I have previously indicated, leaving to one side the mental illness defence, the only issue to be determined in relation to count 1 is whether the Crown has established beyond reasonable doubt that the accused intended that the agreement which underlies the count was to be carried into effect. 2. The accused gave evidence that he did not so intend. He said that he agreed to obtain a kilo of MDMA as "I want to ensure that I was helping these people. I did not want to shut them off." He later said that he did not have the money to fund such a transaction (Tp 251). For the reasons which I have just discussed, I reject that evidence. 3. My rejection of the accused's evidence, however, does not result in his conviction for the offence. It remains the case that the Crown must prove this element of the count beyond reasonable doubt (Liberato v The Queen (1985) 159 CLR 507). 4. In order for the Crown to establish the elements of count 1 beyond reasonable doubt, it is necessary for me to be satisfied that it is rational to draw an inference that the accused and another co-accused did in fact intend to carry the agreements being discussed into effect. I have earlier set forth the principles underlying the drawing of inferences in criminal proceedings, which I shall now endeavour to apply. It is, of course, essential that any inference which I draw is available from proven facts. 5. I turn then to a brief recitation of the facts which were not in dispute being as they were the subject of an admission by the accused as to the veracity of the police intercepts. 6. On Wednesday, 18 May 2016, a co-accused, Hossein Dehgani, called and told another co-accused, Alan Stewart, that he needed a kilogram of MDMA. That afternoon, Dehgani called the accused. Dehgani was with Stewart who then spoke to the accused and asked for the price for a kilogram of "M". The accused asked whether it was for a third party, "Mikey" (a reference to Michael Canaan). Stewart said that it was for "Dan" Dehgani. In a subsequent call that day, the accused confirmed to Stewart that the price was over "40" (a reference to $40,000), but that if Dehgani wanted a "good local" he can get it "pretty cheap". 7. On 19 May 2016, Stewart called and spoke to the accused, following up the request to supply of "one kg of M". He enquired of the accused "whether he had got a price for that local stuff". The accused told him that he was still waiting for that price. 8. Later, on the same day, in a conversation with Dehgani, the accused said that the "premium" "Dutch" "import" is expensive, "half is like 23" (a reference to $23,000), and the local product for a full would be around "30". Canaan took over the phone from Dehgani and requested that the accused get a price for both, and enquires "would they be able to get tonight" as he would take it if it was available that night. The accused told Canaan "I'll call you as soon as that's all ready and I know what's going on". Later that night, Canaan using Dehgani's phone called the accused and asked "do you have just one" to which the accused said that he has nothing and was waiting "to get on to my own, ah, X amount, you know what I mean". In a later conversation, Canaan told the accused, "if you can't get the big one, if you can get two of the normal ones that we always used to deal with?" to which the accused replied "Yeah. I know what you're saying", and "We're just trying to sort things out – they might, like the main person …. he's not answering anyone" and "getting this amount is always hard". 9. Separately to Dehgani's contact with the accused, Dehgani made attempts to source MDMA from other sources. 10. On Friday, 20 May, Dehgani and the accused discussed their respective failed attempts to source the drug, but the accused advised that he was hopeful of getting "the black this weekend". Canaan replaced Dehgani on the phone handset and continued the conversation with the accused. The accused told Canaan that someone showed him a black crystal and he asked for a price for a kilogram. The accused said that he wasn't going to pay more than "35" (a reference to $35,000). 11. On Saturday, 21 May, the accused told Dehgani that he could get a sample of the "black". Dehgani confirmed that they were still interested. The accused offered to bring a sample over to Dehgani's residence. Later, the accused told Dehgani that he might be also able get a "red purple one" for "30-35" as well. 12. When asked which one was better, the accused said the "red one" as he had "done business with that guy before". The accused confirmed that he had the "black" sample as well. Dehgani asked the accused, "[can] you can get it tonight or no?" To which the accused replied, "Yeah we can get it tonight bro". Three subsequent text messages from the accused inform Dehgani that the accused's supplier could not supply on a Saturday night, but that he was hopeful of the day after. 13. The attempts to obtain a kilogram of MDMA recommenced after the weekend, that is to say, on Monday 23 May 2016. At 3pm on that day, Dehgani asked for "a kilo", and "a half". The accused said he can get "one" at "33" and would bring the sample over to Dehgani's after peak hour. Later in the evening, Dehgani told the accused that Dehgani had himself been able to find a source for a "black one", or "import", for "30 to 35", and that that source would bring it to Dehgani's place tomorrow evening. Dehgani then said "if you want supplies yeah" to which the accused replied, "Yeah", and Dehgani said, "just bring your money and grab it, that's it". They then agreed for the accused to cancel the "one" that he had on order. 14. On Tuesday 24 May 2016, there were numerous recorded telephone intercepts relevant to the ongoing attempts to source 1 kilogram of MDMA: 1. At 17:34, Dehgani told the accused that his supplier had let him down by changing the price. 2. At 17:36, the accused called Dehgani, saying that he has been speaking to people and may be able to see Dehgani that night. 3. At 20:16, the accused called Dehgani and said that he might be able to "sort a half, maybe a full tonight", but that the accused could not give Dehgani a full as he needed some as well. 1. These intercepts, to my mind, establish the clear preparedness on the part of the accused to engage to finality the agreement to obtain MDMA for supply. This is so notwithstanding the fact that from the outset the quantity sought from him was 1 kilogram. At no stage did the accused suggest that the supply by him of 1 kilogram of MDMA was beyond his capacity to supply, either in terms of quantity, or price. 2. The difficulty confronting the accused in affecting the transaction was not a lack of intent on his part, but, seemingly, the supply problems of his sources. As to those supply problems, there is no suggestion in the telephone intercepts that they were seen by the accused as other than a short-term impediment to the proposed transaction. The intercepts make clear that the accused was attempting to supply the 1 kilogram of MDMA as sought. 3. As I have indicated, when these apparently short-term supply problems were encountered by the accused, he did not tell any of his co-accused that the transaction was too big, or too hard for him. Rather, he engaged in negotiations as to the sourcing of lesser quality local product, or to supply in half-kilogram quantities. 4. At all times, the proposal to affect the transaction continued unabated whether as to supply of "Dutch" or "local", or of one kilogram or half a kilogram. 5. Another important fact is that, in the period of 24 May 2016 to 17 June 2016, the accused admits that he supplied, in two separate transactions, 280 grams of MDMA. This, of course, in total amounts to 56% of the one kilogram transaction being contemplated as particularised in count 1 on the Indictment. The fact that the accused had been able to source and supply MDMA in that quantity is strongly suggestive of the fact that any inability of the accused to supply one kilogram of MDMA between 18 May and 24 May 2016 was to be attributable to the market, and not his lack of intent to complete the transaction. 6. I have already mentioned the fact that the accused did not at any stage say to his co-conspirators, "this deal is too big for me". In that regard, it is well to note the description which the accused provided of his co-accused, namely, that "these guys, they were quite a dangerous bunch of people" (Tp 305.11-13). 7. It seems to me inherently unlikely, that if the accused considered that the people with whom he was dealing were in fact dangerous, he would "string them along" in relation to a very large drug transaction which he had no intention to deliver upon. 8. Taking all these matters into account, I comfortably infer that at the time of making an agreement to supply 1 kilogram of MDMA, the accused and at least one other party to the agreement intended that the objective of the agreement was to be carried into effect. 9. I find this inference to be logically inferred beyond reasonable doubt. 10. I thus find that count 1 has been proved beyond reasonable doubt. Count 4 1. Count 4 is a count involving an alleged contravention of section 25A(1) of the Drugs Act. This offence requires proof of at least three separate acts of supply over a designated 30 day period. 2. The only issue between the parties concerns the first alleged act of supply particularised in relation to count 4 on the indictment. I shall refer to this alleged supply as "Supply 1". 3. The accused argued that the evidence was insufficient to establish Supply 1 beyond reasonable doubt, with the consequence that there was not proven the requisite three supplies with a 30 day period. This, the accused submitted, entitled him to be acquitted of count 4. 4. The accused put his defence in relation to Supply 1 on two bases. The first was that on the evidence the Crown had not established beyond reasonable doubt that the supply contemplated in the intercepts relied upon by the Crown, actually took place. The second argument was that, properly understood, Supply 1 was part of the ongoing attempt to obtain the same one kilogram of MDMA as is the subject of count 1 on the indictment. As a consequence it was argued that it followed that the accused is not liable to be convicted of the offence of ongoing supply by virtue of the provisions of section 25A(7) of the Drugs Act. 5. The Crown relies on telephone intercepts of 4 June 2016 to make out Supply 1. 6. On 4 June 2016, Deghani telephoned the accused. Deghani told the accused that he wanted "a full one". The accused speculated that it would cost "40-41" based on the fact that he got "a half for 23 the other week". The accused told Deghani that he did not want any himself because he was about to go overseas. However, the accused ended up saying that he would try and "whatever I get I will give to you", and "if I can get it I'll give it to you". Shortly after 6pm on that day, the accused telephoned Deghani, and said he was on his way. Later, the accused again called Dehgani and said that he was in the visitor's car park (presumably of Deghani's premises). 7. The Crown accepts that it has not produced direct proof that the transaction being discussed in the above mentioned telephone intercepts was carried into effect. In order to prove the alleged offence, the Crown relies on the inference being drawn that when the accused told Dehgani that he was in the visitor's carpark, the alleged supply subsequently took place there. 8. This inference is certainly possible on the evidence, but I do not believe that the proven facts entitle me to draw that inference beyond reasonable doubt. It is not, in my view, the only reasonably available inference which can be drawn from those facts. It should be noted that in the intercept commencing at 14:48 on that day, it is clear that the accused had not sourced MDMA for the transaction. 9. It is also relevant to note that the telephone intercepts reveal that the accused and Dehgani were friendly, and had socialised together. In addition, the intercepts demonstrate that the accused had attended Dehgani's dwelling in the past. 10. Finally, the telephone intercepts do not describe the amount of drugs which the accused allegedly supplied to Dehgani on the relevant day, nor do they disclose an agreed purchase price. 11. In all of those circumstances, I find that the Crown has not established beyond reasonable doubt that Supply 1 took place. As a consequence of this finding, I find that count 4 has not been established beyond reasonable doubt, and that the accused is entitled to a verdict of not guilty in relation to it. Statutory Alternative Verdicts 1. Section 25A(4) of the Drugs Act provides for possible alternative verdicts in respect of cases where an offence under section 25A(1) is not made out. The section is in the following terms: If, on the trial of a person for an offence under this section, the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of commission of the offence under this section, committed a relevant supply offence, the jury may acquit the person of the offence charged and find the person guilty of the relevant supply offence, and the person is liable to punishment accordingly. 1. The second supply involved a supply of 160 capsules of MDMA to Athanasios Syrios between 6 June 2016 and 9 June 2016 (Supply 2). 2. The third supply involved a supply of approximately 5 ounces of MDMA, valued at $8000, to unknown persons in the Campbelltown district in the period between 14 June 2016 and 18 June 2016 (Supply 3). 3. It is not disputed by the accused that the essential elements of the alternative offences constituted by the second and third supplies have been made out beyond reasonable doubt (Tp 406.7-14). 4. The parties were agreed that the alternative offences which the evidence has established beyond reasonable doubt were: Supply 2 – that on or about 9 June 2016 the accused supplied a prohibited drug, MDMA, to Athanasios Syrios, in the amount of 160 capsules being 13.5 grams, which is an indictable amount for that drug under Schedule 1 of the Drug Misuse and Trafficking Act 1985, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985. Supply 3 – that the accused supplied a prohibited drug to unknown persons in the Campbelltown area, in the amount of approximately 140 grams, valued at $8000, being not less than the commercial quantity applicable for that drug under Schedule 1 of the Drug Misuse and Trafficking Act 1985, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985. 1. As a result of the accused's concessions set out above, I find that the alternative verdicts described above are appropriate to be entered. Summary 1. I find that the Crown has established the guilt of the accused beyond reasonable doubt in respect of counts 1, 2, and 3 on the indictment. 2. I find that the Crown has not established the guilt of the accused beyond reasonable doubt in respect of count 4 on the indictment. 3. I further find that the evidence adduced in respect of count 4 on the indictment has established beyond reasonable doubt that the accused is guilty of the offences of: 1. A statutory alternative to Count 4, being the supply of prohibited drugs, contrary to sections 25A(4) and 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW); and, 2. A statutory alternative to Count 4, being the supply of prohibited drugs of not less than a commercial quantity, contrary to sections 25A(4) and 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Verdict 1. Koray Kuroz, 1. You are found guilty of counts 1, 2, and 3 on the indictment; 2. You are found not guilty of count 4 on the indictment; 3. You are 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: 1. 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, 2. 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). 1. I enter convictions in respect of each offence accordingly. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2020