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  • Unreported Judgment

R v Pyritz

 

[2020] QSC 347

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pyritz [2020] QSC 347

PARTIES:

R

v

PYRITZ, Dale Edward

(accused/defendant)

FILE NO/S:

Indictment No 722 of 2020

DIVISION:

Trial Division

PROCEEDING:

Trial (Judge alone)

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

20 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2020 to 6 November 2020

JUDGE:

Williams J

VERDICT:

Count 1:  Not guilty.

Count 2:  Not guilty.

Count 3:  Not guilty.

Count 4:  Not guilty.

Count 5:  Not guilty.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – DEALING AND DISTRIBUTION OF DRUGS – TRAFFICKING OR SALE AND SUPPLY – VERDICT – where the accused was a passenger in a rental car driven by his then-partner – where the rental car was reported stolen – where the police searched the car after it was pulled over – where police located dangerous drugs and phones in the car – where messages contained on one of the phones was evidence of trafficking in dangerous drugs – where the prosecution submitted that circumstantial evidence established the accused sent the messages – where the accused’s ex-partner gave evidence that she sent the messages – whether the prosecution has proved beyond reasonable doubt that it was the accused who is guilty of trafficking dangerous drugs

Criminal Code Act 1899 (Qld) Schedule 1, s 614, s 615, s 615C, s 644

Martin v Osborne (1936) 55 CLR 367, cited

Peacock v The King (1911) 13 CLR 619, cited

R v Baden-Clay (2016) 258 CLR 308, cited

R v Elhusseini [1988] 2 Qd R 442, cited

R v Pentland [2020] QSC 231, followed

R v Peros [2018] 1 Qd R 1, followed

Shepherd v The Queen (1990) 170 CLR 573, cited

COUNSEL:

S Cupina for the Crown

S MacDonald for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

MacDonald Law for the defendant

  1. [1]
    The accused pleaded not guilty before me in relation to five counts on Indictment No. 722 of 2020 as follows:
    1. (a)
      Count 1: That between the fourth day of March 2019 and the first day of April 2019 at Pelican Waters or elsewhere in the State of Queensland [he] carried on the business of unlawfully trafficking in the dangerous drug methylamphetamine (Section 5 of the Drugs Misuse Act 1986 (Qld) (Drugs Misuse Act)).
    2. (b)
      Count 2: That between the fifteenth day of March 2019 and the first day of April 2019 at Pelican Waters or elsewhere in the State of Queensland [he] carried on the business of unlawfully trafficking in the dangerous drug cannabis (Section 5 Drugs Misuse Act).
    3. (c)
      Count 3: That on the thirty-first day of March 2019 at Pelican Waters in the State of Queensland [he] unlawfully had possession of the dangerous drug methylamphetamine (Section 9(1)(d) Drugs Misuse Act).
    4. (d)
      Count 4: That on the thirty-first day of March 2019 at Pelican Waters in the State of Queensland [he] unlawfully had possession of the dangerous drug cannabis (Section 9(1)(d) Drugs Misuse Act).
    5. (e)
      Count 5: That on the thirty-first day of March 2019 at Pelican Waters in the State of Queensland [he] had in his possession a mobile phone that he had used in connection with the commission of the crime of trafficking in a dangerous drug (Section 10(1)(b) Drugs Misuse Act).
  2. [2]
    On 24 July 2020, Justice Burns ordered, pursuant to ss 614 and 615 of Schedule 1 of the Criminal Code Act 1899 (Qld) (Criminal Code) that the accused be tried by a judge sitting without a jury. 
  3. [3]
    Section 615C of the Criminal Code requires that I record:
    1. (a)
      The principles of law that I have applied; and
    2. (b)
      The findings of fact on which I have relied.

Factual Overview

  1. [4]
    On 31 March 2019 police stopped a Holden Colorado ute in Kalowendha Avenue, Pelican Waters.  There were two people in the car:  Deanne McHarry was driving and the accused was a passenger, seated in the front passenger seat.
  2. [5]
    Police searched the car and found various items including four clip seal bags (three containing methylamphetamine and one containing cannabis), scales and unused clip seal bags.
  3. [6]
    Further, police seized the accused’s Optus mobile telephone and downloaded the data from that telephone.  The Crown alleged that the text messages and Facebook messages from the accused’s Optus mobile telephone proved:
    1. (a)
      The user of the Optus mobile telephone engaged in the business of selling for money or other consideration methylamphetamine and cannabis to approximately 16 different customers;
    2. (b)
      Quantities of methylamphetamine sold ranged from 0.1 grams to 3.5 grams;
    3. (c)
      Cannabis was sold in approximately 7 gram quantities; and
    4. (d)
      The user of the Optus mobile telephone and the customers used code when communicating.
  4. [7]
    The accused did not contest that the text and Facebook messages proved those allegations.
  5. [8]
    The Crown’s case is:
    1. (a)
      Count 3 (possession of methylamphetamine) and Count 5 (possession of the mobile phone) are particulars of Count 1 (trafficking in methylamphetamine).
    2. (b)
      Count 4 (possession of cannabis) and Count 5 (possession of the mobile phone) are particulars of Count 2 (trafficking in methylamphetamine).
    3. (c)
      Based on the text messages and Facebook messages on the accused’s Optus mobile telephone:
      1. For the period of 28 days he engaged in trafficking in methylamphetamine; and
      2. For the period of 17 days he engaged in trafficking in cannabis.
  6. [9]
    The facts are largely agreed by the accused (see admissions below).[1] 
  7. [10]
    The real issue is who sent the relevant text messages and Facebook messages on the accused’s Optus mobile telephone.  The Crown’s case is that the accused sent the relevant messages based on an inference as it is his telephone.  The Crown also points to other circumstantial evidence to support the conclusion that the accused sent the messages.  The accused denies sending the relevant text messages and Facebook messages.
  8. [11]
    For reasons explained later, the Crown concedes that it cannot succeed on Counts 3 and 4 (possession) unless it can succeed on Counts 1 and 2 (trafficking).  The Crown’s case is that the drugs found in the car are the stock used in the trafficking business.
  9. [12]
    The “crime of trafficking” was the offence against the Drugs Misuse Act alleged in Count 5 (possession of the mobile phone), so Count 5 depends upon the Crown proving at least one of Counts 1 and 2.

General principles of law

  1. [13]
    There are a number of general principles of law which apply to all criminal prosecutions which must be applied by me. 
  2. [14]
    In addition, there are principles which apply in a case where the Crown relies upon circumstantial evidence.  I must have regard to these principles to the extent that the Crown relies upon circumstantial evidence, rather than admissions, to prove a fact.
  3. [15]
    The relevant principles have recently been helpfully stated by Martin J in R v Pentland[2] as follows:
    1. (a)
      The Crown has the onus of establishing the offence charged beyond reasonable doubt.  There is no onus on the accused.
    2. (b)
      In arriving at a verdict I must act impartially and dispassionately and only on the evidence received at the trial.
    3. (c)
      The issues that exist must be resolved by taking into account all of the evidence, but that does not mean that I have to resolve all of the questions or inconsistencies which may have been raised by the evidence or which may arise about the facts.
    4. (d)
      The evidence which I accept and that which I reject may be based on a number of things, including what a witness had to say in the witness box, the manner in which the witness gave evidence, the general impression which he or she made when giving evidence, statements which a witness may have made at an earlier time, such as in a statement to the police or at the committal, and my assessment of other evidence including documents and other material.
    5. (e)
      It is for me to decide whether I accept the whole of what a witness says, or only part of it, or none of it. The fact that I might not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of that witness’s evidence. I may accept parts of it if I think it is worthy of acceptance.
    6. (f)
      In drawing any inferences, I must be satisfied that they are reasonable ones to draw from the facts that I find have been established by the evidence. I must not engage in speculation or conjecture to fill in any gaps in the evidence but it is up to me to decide whether I accept particular evidence and if I do, what weight or significance it should have.
    7. (g)
      I also bear in mind that there is a difference between honesty and reliability. A person might honestly believe what he or she says about what he or she heard or saw and yet not be reliable in recollection, perhaps because of errors in observation, or of recall, or because of an inability to describe what they heard or saw. In this case, the passage of time between the events surrounding the charge and the giving of evidence in this trial is of particular importance.
    8. (h)
      The accused has not given or called evidence. That is his right. He is not bound to do so. The burden on the Crown does not change and the fact that the accused did not give evidence is not evidence against him. It proves nothing at all.

A circumstantial case ‒ the principles

  1. (i)
    When the case against an accused person rests substantially upon circumstantial evidence a verdict of guilty cannot be returned unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.[3]
  2. (j)
    To be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that guilt should be a rational inference, but also that it should be the only rational inference that the circumstances would enable to be drawn.[4]
  3. (k)
    For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a finding of guilt, if the inference of guilt is the only inference open to a reasonable person upon a consideration of all the facts in evidence.[5]
  4. (l)
    Further, in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.[6]
  5. (m)
    The evidence is not to be looked at in a piecemeal fashion.[7] But, a single circumstance inconsistent with a conclusion of guilt may be of more importance than all the rest inasmuch as it destroys the hypothesis of guilt.[8]
  1. [16]
    I have applied these principles.
  2. [17]
    There are some further principles in respect of separate consideration of charges that I also have applied.
    1. (a)
      Five separate charges are preferred.  I will return separate verdicts for each charge.
    2. (b)
      I must consider each charge separately, evaluating the evidence relating to that particular charge to decide whether I am satisfied beyond reasonable doubt that the Crown has proved its case on any or all of the preferred charges.
    3. (c)
      As the evidence in relation to the separate charges is different, my verdicts need not be the same.
  3. [18]
    However, as observed in paragraphs [11] and [12], the structure of the Crown case was such that proof of trafficking was a necessary ingredient in the proof of each of the other charges.

The offence of trafficking in a dangerous drug

  1. [19]
    Before the accused can be found guilty on the two counts of trafficking in a dangerous drug, I must be satisfied beyond reasonable doubt that the accused carried on the business of unlawfully trafficking in methylamphetamine between 4 March and 1 April 2019 and cannabis between 15 March and 1 April 2019.
  2. [20]
    It is a crime to carry on a business of unlawfully trafficking in a dangerous drug, and both methylamphetamine and cannabis are dangerous drugs.
  3. [21]
    Trafficking includes selling.  It may also be wider and include knowingly engaging in the movement of drugs from the source to the ultimate user.[9]  Here, the Crown case was that the trafficking consisted of street level selling of small quantities of cannabis and methylamphetamine.
  4. [22]
    There is no evidence that the accused was selling cannabis or methylamphetamine lawfully.
  5. [23]
    The critical question is whether the accused was carrying on a business of selling at Pelican Waters or elsewhere in Queensland:
    1. (a)
      methylamphetamine between 4 March and 1 April 2019; and/or
    2. (b)
      cannabis between 15 March and 1 April 2019.
  6. [24]
    In respect of “carrying on a business”:
    1. (a)
      A single sale may be proved to have been carried out in circumstances such as to show that it was part of the carrying on of a business.
    2. (b)
      Mere occasional sales of the drug could not amount to the carrying on of a business of selling it.
    3. (c)
      It signifies more than a few isolated transactions.  It is necessary to show a regularity of drug dealing sufficient to establish that it occurred in the course of a business which might be regarded as trafficking.[10]
    4. (d)
      The expression connotes a continuous course of conduct engaged in to obtain a reward of a commercial character.
    5. (e)
      Proof of the carrying on of a business therefore required the Crown to establish several transactions done for gain over more than a brief interval.
    6. (f)
      Repetition of acts, and activities of a commercial nature possessing something of a permanent character, are hallmarks of a business being carried on.  But there is no need to show an intention to trade indefinitely.
    7. (g)
      It is not necessary to show that the venture is profitable before it can be described as a “business”.
    8. (h)
      The reward need not be for money.  For example, the business could be conducted on the basis of the reward of drugs for personal use.
    9. (i)
      It is not essential that there is more than one customer to be a business.
  7. [25]
    The Crown contends that the accused was carrying on the business of trafficking in that he was exchanging drugs for consideration, either money or other items of value, on a repeated basis. 

The offence of possessing a dangerous drug

  1. [26]
    Before the accused can be found guilty of the two counts of possessing a dangerous drug, I must be satisfied beyond reasonable doubt that he unlawfully had possession of the amounts of methylamphetamine and cannabis found in the motor vehicle on 31 March 2019.
  2. [27]
    It is a crime to unlawfully have possession of methylamphetamine and cannabis, both of which are dangerous drugs.
  3. [28]
    If the accused had possession of methylamphetamine and/or cannabis that possession was not lawful.
  4. [29]
    An issue in the case concerns possession: 
    1. (a)
      Possession denotes a physical control or custody of a thing with knowledge that you have it in your control or custody.
    2. (b)
      You do not possess a thing unless you know you have it or else can actually exercise dominion over it.
    3. (c)
      The Crown does not bear the burden of showing that the accused knew the nature of the substance in his control or custody. It is enough for the Crown to prove, directly or by inference, that the accused knowingly possessed a thing or substance or object which was in fact a dangerous drug.
  5. [30]
    Here, the drugs were found in a “place”, namely the car driven by Ms McHarry.  The Crown did not rely on s 129(1)(c) of the Drugs Misuse Act.
  6. [31]
    The Crown did not submit that it had direct evidence of the two elements of possession: knowledge and control.  The Crown case was that the accused was trafficking in the drugs which were found in the car.  Proof that he was trafficking leads to an inference, the Crown said, that he had knowledge and control of the drugs in the car.  Absent proof of trafficking there is no basis to connect the accused with the drugs the subject of counts 3 and 4.

The offence of possessing a thing in connection with trafficking in a dangerous drug

  1. [32]
    Before the accused can be found guilty of the charge of possessing a thing used in connection with trafficking in a dangerous drug, I must be satisfied beyond reasonable doubt that the accused used the relevant mobile phone in connection with the purpose of the carrying on of the business of supplying either methylamphetamine or cannabis.
  2. [33]
    The Crown contends that the accused had physical custody or control of the Optus mobile telephone and knowledge of the content of the Optus mobile telephone.

The real issues in this case

  1. [34]
    The Crown and the accused agree on matters which became the subject of a set of formal admissions and were tendered pursuant to s 644 of the Criminal Code.
  2. [35]
    The Crown accepts that it cannot prove its case unless I am satisfied beyond reasonable doubt that the accused was the person using the Optus mobile telephone to trade drugs.  That is, the determination on Counts 1 and 2 informs the decision in relation to Counts 3, 4 and 5.  As a result, the Crown focussed on the central issue of whether the accused was the person using the Optus mobile telephone to trade drugs.

Admitted facts

  1. [36]
    At the start of the trial, the following facts were admitted by the Crown and the accused pursuant to s 644 of the Criminal Code as sufficient proof of those facts:

“It is admitted that:

  1. At about 7pm on Sunday, 31 March 2019; Deanne Catherine McHarry was driving a grey Holden Colorado duel cab (‘the ute’), licence plate number 288YPJ, along Pelican Waters Boulevard heading south.
  1. The defendant was a passenger; seated in the front passenger seat of the ute.
  1. The defendant and Ms McHarry were the only people in the ute.
  1. At about 7.15pm, police stopped the ute in Kalowendha Avenue, Pelican Waters.
  1. The defendant was searched by Senior Constable Troy Cameron.  The defendant told the officer he had a wallet and a mobile phone on him.  These items were seized by the officer.  The mobile phone was ZTE Optus mobile phone (‘ZTE mobile’).
  1. Police searched the ute.  Located was an Apple iPhone 7 plus (‘Apple iPhone’).  Ms McHarry admitted this was her phone.
  1. Near the front passenger seat of the ute, police located the following property:
  1. (a)
    A brown sunglasses case (this was underneath the front passenger)

a. Inside the case was a syringe with a small amount of milky liquid; a used glass pipe and 2 unused syringes.

  1. (b)
    A black handbag (on the floor of the front passenger seat)

a. Inside the bag was a black sunglass case

i. Inside the sunglass case was 3 clip-sealed bags each containing a crystallised substance; a set of digital scales; a clip sealed bag with green leafy material; 4 Endone tablets, a small section of star and a quantity of small clip sealed bags

  1. The crystallised substances in each bag was analysed contained a proportion of methylamphetamine.  The Certificate of Analysis identifies the weight of the crystallised substance in each bag; and the quantity and proportion of methamphetamine in the substance.
  1. The green leafy material is cannabis weighing approximately 6 grams; per the Analyst’s Certificate. [sic] analysed and the Analysis Certificate identifies.

ZTE Mobile

  1. On 4 April 2019, Detective Senior Constable Glenn Elliott used a universal forensic extraction device (‘Cellebrite device’) to copy the data from the ZTE mobile and extract it into a number of reports.
  1. The Cellebrite device copies data saved on the phone ‒ including contacts, text messages, call logs, and multimedia messages.  This data is reproduced into a number of reports.
  1. Annexures [1] to [3] are the reports of the data copied and extracted from the ZTE mobile.
  1. Annexure [1] is Phone Contacts.  A user of a mobile phone must manually enter the name and the number into a mobile phone and save this data in order for an entry to be created.
  1. Annexure [2] is Text Messages.  The data in each of the columns is:
  1. (a)
    # - the data as ordered by the Cellebrite device;
  1. (b)
    Number ‒ the phone number that has either sent or received a text message from the ZTE Mobile;

Name ‒ this data comes from the ‘Phone Contacts’ or if it does not match any of the ‘Phone Contacts’ data; is marked ‘N/A’;

  1. (d)
    Date and Time ‒ this is the date and time the message was either sent or received by the ZTE Mobile;

SMSC ‒ a device network phone number (irrelevant);

  1. (f)
    Status ‒ this indicates whether the message was sent by the user of the ZTE Mobile; or received and read.  The former is indicated by ‘Sent’; the latter by ‘Read’;
  1. (g)
    Folder ‒ where the message is stored;
  1. (h)
    Storage ‒ where the message is stored;
  1. (i)
    Type ‒ this indicates whether the message was sent by the user of the ZTE Mobile; or received.  The former is marked ‘Outgoing’; latter ‘Incoming’.
  1. (j)
    Text ‒ the text message.  This data has to be manually imputed.
  1. Annexure [3] is the Call Logs.  The data in each of the columns is:
  1. (a)
    # - the data as ordered by the Cellebrite device;
  1. (b)
    Type ‒ this indicates whether the call was made by the ZTE Mobile user; or received.  The former is indicated with ‘Incoming’; the latter ‘Outgoing’;

Number ‒ The phone number of the caller; or the phone number dialled;

  1. (d)
    Name ‒ irrelevant;

Date and Time ‒ this is the date and time the call was either made or received by the ZTE Mobile;

  1. (f)
    Duration ‒ the length of time of the phone call.
  1. Detective Senior Constable Glenn Elliott also reviewed other applications on the ZTE Mobile.  One application was Facebook Messenger.
  1. Facebook Messenger permits users to send messages; exchange photos, videos and audio files; and make voice and video calls.  A user to the application signs up and inputs a name for their account and can add a profile photo.  Users can then communicate with one another if they have this application.
  1. On 4 April 2019, Detective Senior Constable Glenn Elliott went through communications that existed on the Facebook Messenger application on the ZTE Mobile phone.  The officer video-recorded his review.
  1. Annexure [4] is screen shots of the videos of the communications in Facebook Messenger.
  1. (a)
    The ‘IMG’ number and name in the annexure indicates the video number of the police recording; and the name is that per the user profile in the Facebook Messenger application;
  1. (b)
    Communications on the right of the images are those sent by the ZTE Mobile user;

Communications on the left of the images are those sent by other users;

  1. (d)
    The date and time above the written messages is the date and time a message was sent.

Apple iPhone

  1. On 4 April 2019, Detective Senior Constable Glenn Elliott the Cellebrite device to copy the data from the Apple iPhone and extract it into a number of reports.
  1. Annexures [5] to [9] are the reports of the data copied and extracted from the Apple iPhone.
  1. Annexure [5] is the Phone Contacts.  A user of a mobile phone must manually enter the name and the number into a mobile phone and save this data in order for an entry to be created.
  1. Annexure [6] is Text Messages.  The data in each of the columns is:
  1. (k)
    # ‒ the data as ordered by the Cellebrite device;
  2. (l)
    Number ‒ the phone number that has either sent or received a text message from the Apple iPhone;
  3. (m)
    Name ‒ this data comes from the ‘Phone Contacts’ or if it does not match any of the ‘Phone Contacts’ data; is marked ‘N/A’;
  4. (n)
    Date and Time ‒ this is the date and time the message was either sent or received by the Apple iPhone;
  5. (o)
    SMSC ‒ a wireless network phone number (irrelevant);
  6. (p)
    Status ‒ this indicates whether the message was sent by the user of the Apple iPhone; or received and read.  The former is indicated by ‘Sent’; the latter by ‘Read’;
  7. (q)
    Folder ‒ where the message is stored;

Storage ‒ where the message is stored;

  1. (s)
    Type ‒ this indicates whether the message was sent by the user of the Apple iPhone; or received;  The former is marked ‘Outgoing’; the latter ‘Incoming’;
  2. (t)
    Text ‒ the text message.  This data has to be manually imputed.
  1. Annexure [7] is the Call Logs.  The data in each of the columns is:
  1. (g)
    # ‒ the data as ordered by the Cellebrite device;
  1. (h)
    Type ‒ this indicates whether the message was made by the Apple iPhone user; or received. The former is indicated ‘Incoming’; the latter ‘Outgoing’;
  1. (i)
    Number ‒ The phone number of the caller; or the phone number dialled;
  1. (j)
    Name ‒ irrelevant;
  2. (k)
    Date and Time ‒ this is the date and time the call was either made or received by the Apple iPhone;
  3. (l)
    Duration ‒ the length of the time of the phone call.
  1. Annexure [8] is the Calendar and Notes.  The text in Notes, in the column marked ‘Subject’ is imputed manually by the user of the Apple iPhone.  The data in the column headed ‘Start’ is the date and time the note was commenced.
  1. Annexure [9] is a catalogue of internet searches conducted by the user of the Apple iPhone.

Codes

  1. It is the experience of drug law enforcement officers that persons involved in the illicit drug trade rarely refer to drugs directly.  It is common for codes to be used when referring to drugs, quantities and money.  The following are terms often used by drug suppliers and customer[s]; and their meanings:

Tick / tic

Loan or credit

P or Point

0.1 grams

HB

Half-ball or 1.75 grams

Ball

3.5 grams

Q

Quarter of an ounce or 7 grams

Ounce

28 grams

Paper / Coin

Money

are U good / U good

Need more drugs?

Tea

Cannabis

Rocky road

Methylamphetamine

Reload

The supplier has obtained drugs and is able to supply to customers

Miscellaneous matters

  1. On 20 March 2019, Ms McHarry hired the ute from a car rental company at Brisbane Airport.  The company’s name is Enterprise Redspot.  The initial rental agreement was for 3 days.  This was extended for another day on the 24 March 2019; after a payment of $120 was made to the rental company.  The ute was required to be returned on 25 March 2019.  The rental company advised Ms McHarry that if the car wasn’t returned by 6.20 am on 31 March 2019, it would be reported stolen to the police.
  1. The police pulled the ute over because of the report made by the rental company in relation to the ute.
  1. The defendant has a son.  The son’s name is Callum.”

Further admissions

  1. [37]
    During the Crown case, the following additional joint admissions were made by the Crown and the accused:

“It is admitted that:

  1. The following are also terms commonly used by those involved in the drug trade; and the meaning of the terms:

Green

Cannabis

Half / Half orange / Half baked cheese cake / HW

1.75 grams

Handball

3.5 grams

A single digit number (example 3 or 5); sometimes followed by the letter ‘p’

Number of ‘points’; i.e. the number multiplied by 0.1 grams

A number in the tens or hundreds (for example 50, 150, 400)

Money value (for example $50, $150, $400)

Goods

Drugs

White

Methylamphetamine

Oscar

Ounce or 28 grams

  1. On 13 February 2019, the defendant was sentence[d] in the Caloundra Magistrates Court in relation to several offences.  The defendant was sentence[d] to 2 years probation.
  1. On 7 March 2019, the defendant committed the offence of disqualified driving and the offence of failing to comply with requirement to produce a motor vehicle.”

Further specific direction

  1. [38]
    The Prosecutor and Counsel for the accused also agree that a further specific direction is appropriate in light of the admissions in paragraphs 2 and 3 of the further admissions.
  2. [39]
    I direct myself that the evidence in these paragraphs is to be used solely for the purposes of determining the question of identification of the Optus mobile telephone user.  The Crown submitted that the fact that the accused was on probation, had a court date on 13 February 2019 and was disqualified for driving and failed to produce a motor vehicle were unique facts referred to in some of the relevant messages that supported the inference that the accused sent the messages.  I did not consider this as evidence that the accused had the propensity to commit offences simply because he had those convictions or those court orders.
  3. [40]
    I have applied these principles.

Acts relied upon by the Crown to establish trafficking

  1. [41]
    The Crown contends that the following acts constitute the carrying on of the business of supplying dangerous drugs to establish trafficking:
    1. (a)
      Text messages on the Optus mobile telephone:

Date

Contact

Txt Msg Numbers[11]

Effect

30/3/2019 at ~9.28pm

Jye

75 +

Ball or 2 of white; also Green

30/3/19 at ~10.51pm

Kel

84

Ball to Woodford

31/3/2019 at ~1am

Jye

104

Wants to speak with accused re ball and oscar

31/3/202019 [sic] at ~8.40am

Number ending in 178

113

‘Just picked up a ball’

31/3/202019 at ~9.37am

Shane

119

Accused ‒ ‘nice q her in my hands if needed plus top shelf stuff again’

31/3/202019 at ~10.25am

Wendy

128

Request for Green

31/3/202019 at ~11.10am

Cahdr

131

Message from accused ‒ be down soon with 150

31/3/202019 at ~1.26pm

Bitter Victoria

152 +

HB for $400.

31/3/202019 at ~2.28pm

Ranger

164+, 292

‘got heaps lol’ Ranger ‒ Got 50. I can meet ya somewhere  Accused ‒ Millatry Jetty (Ranger ‒ give it  a miss)

Ranger ‒ let me know what time back over this way…

  1. (b)
    Facebook Messenger messages on the Optus mobile telephone:

Date

Contact

Message

Page[12]

5 March 2019

Jess

Defendant asking if he could “tick a HW”. The defendant stated he didn’t have any at that time but the following day stated he was “good again”.  The Crown alleges the defendant arranged to supply 0.5 grams of methylamphetamine to “Jess”.

266

9 March 2019

Aaron

The defendant messaged ‘Aaron’ “I’ve got the goods Too”; ‘Aaron’ responded ‒ ‘well you should look after me’ and ‘Shane is looking’.  Defendant has drugs.

14

10 March 2019

Aaron

The defendant messaged ‘Aaron’ ‒ “ya mate still want”; ie is your friend still looking for drugs.

15

13 March 2019

Jess

The defendant messages ‘Jess’ to advise, “got goods again”.

267

14 March 2019

Aaron

The defendant arranged to supply 0.3 grams of methylamphetamine to contact “Aaron” for $100.

‒ Exchange the following day.  Defendant messages, “can’t u meet me somewhere …share the risk bro.”

18

22

16 March 2019

Addison

The defendant tells ‘Addison’ he can “get green”.

167

16 March 2019

Jye

The defendant messages “Jye” that he had “1.5 ounces of Tea” (cannabis) which he described as “good Melbourne stuff” and arranged to meet “Jye” to supply him with cannabis.

33

16 March 2019

Dazza

The defendant arranged to supply a “HB” (1.75 grams) of methylamphetamine to contact “Dazza”.

37

16 March 2019

Addison

The defendant offered to supply “2p” (0.2 grams) of methylamphetamine to contact “Addison” in exchange for a mobile phone

‒ Discussion. Addison offers spear gun as well. “5 fro both”.

168

181

17 March 2019

Mitchell

The defendant discussed a debt with contact “Mitchell” in relation to drugs the defendant had previously supplied him. The defendant discussed exchanging a “p” (0.1 grams) of methylamphetamine in exchange for cannabis.

243 - 244

17 March 2019

Fiona

The defendant arranged to supply a personal quantity of cannabis to contact “Fiona”.

279

18 March 2019

Fiona

“Fiona” requested handball; price for half oranges the defendant arranged to supply a personal quantity of cannabis to contact “Fiona”.

280

18 March 2019

Addison

Defendant indicates to Addison the quantity of drugs he will exchange for which bicycle ‒ “6p for 220 Malvin star; 5p specialises…later ‒ decent giant”.

170

19 March 2019

Loretta Jones

Defendant’s exchange with ‘Loretta Jones’ indicates he has drugs other than cannabis (Defendant ‒ u any green about?; Loretta ‒ Nah not on me, u got other?; Defendant ‒ yes).

4

19 March 2019

Jye

To Jye ‒ I not long got and only half still waiting for other half…I’m so over it bro”.

34

19 March 2019

Loretta Jones

Defendant indicates he has 3 (points grams of methylamphetamine) left and needs money (‘coin’). This is a message to Loretta.

6

21 March 2019

Jasmine

The defendant supplied 0.2 grams of methylamphetamine to contact “Jasmine”. 4 days later on 25 March 2019 the defendant supplied a further $150 worth of methylamphetamine to “Jasmine”.

264

21 March 2019

Addison

The defendant asks Addison to ‘chase sales for us’.

‒ (21/3/2019 at 1.29pm) ‘got a mate to text ya he needs…Jack’.

‒ On 21 March 2019, ‘Jack’ messages the defendant he got his details from Addison.

‒ Defendant responses does not wish for people to message him.

202

203

275

204

21 March 2019

Addison

‘Addison’ asks for his 0.2 grams; the defendant advises him, “should be fine bro I just gotta reload”.

204

22 March 2019

Brendant

‘Brendant’ requests a ‘half baked cheese cake’ (1.75 grams methylamphetamine)

162

22 March 2019

Chloe

The defendant arranged to obtain a “HB” of methylamphetamine from contact “Chloe” for $300 to on-sell to customers.

117

22 March 2019

Al

The defendant received a message from contact “Al” asking for a “few today”. The defendant replied that he will “hopefully be loaded again by then”.  The Crown alleges the defendant arranged to supply 0.2 grams of methylamphetamine to “Al”.

273

23 March 2019

Deanne

The defendant messages Deanne, “I’ve just canvased around and got up 400; HB 350 9 gone and the rest is mine for free so should be able to raise another night with car”. (9 HB)

87

23 March 2019

Addison

The defendant supplied “3p” (0.3 grams) of methylamphetamine to contact “Addison” in exchange for a Bluetooth speaker.

227

23 March 2019

Trev

The defendant had a message exchange with contact “trev” where he discussed his car being search by police and stated “someone must be squealing”. The defendant discussed having “840 and “3p” (0.3 grams of methylamphetamine).

154

28 March 2019

Josh

The defendant discussed the sale price of various amounts of cannabis with contact “Josh”.

145

28 March 2019

Wendy

The defendant arranged to supply a “q green” (7 grams) of cannabis to contact Wendy.

‒ He also told “Wendy” that he was in Caboolture and had to “reload” (obtain more drugs to on-sell).

141

143

30 March 2019

Jye

The defendant messaged “Jye” asking if he knew anyone who wanted cocaine or “rocky road” (methylamphetamine) as he had some to sell.

‒ next day at 2.29am then 2.41am ‒ Oi in here waiting for u at cabo.

36

36

31 March 2019

Donfetty Dabossalini

The defendant messages Donfetty Dabossalini, “I’m getting the goods at a good price. U would be impressed”.

36

30 March 2019

Jye

The defendant messaged “Jye” asking if he knew anyone who wanted cocaine or “rocky road” (methylamphetamine) as he had some to sell.

36

Police witnesses

  1. [42]
    The Crown called evidence from three serving police officers who were involved in the search of the motor vehicle on 31 March 2019, or the subsequent investigation.  The witnesses are as follows:
    1. (a)
      Acting Sergeant Daniel Robert Barker;
    2. (b)
      Senior Constable Troy Anthony Cameron; and
    3. (c)
      Detective Senior Constable Glenn Richard Elliott.

Barker’s evidence

  1. [43]
    Senior Constable Barker gave evidence that he was involved in the search of the relevant motor vehicle on the evening of 31 March 2019.  He recorded the search undertaken by him on a body worn camera.  The footage from the body worn camera was admitted as an exhibit.
  2. [44]
    Senior Constable Barker was not involved in relation to the investigation of the issues arising out of the search.

Cameron’s evidence

  1. [45]
    Senior Constable Troy Cameron was in a police vehicle with Detective Senior Constable Glenn Elliott on the night of 31 March 2019 and pulled over the motor vehicle which was driven by Ms McHarry and in which the accused was a passenger.
  2. [46]
    Senior Constable Cameron was involved in the search of the motor vehicle and, later that same evening, interviewed Ms McHarry together with Detective Senior Constable Elliott.
  3. [47]
    Senior Constable Cameron seized the two mobile telephones which are the subject of admissions, namely an Apple iPhone and an Optus mobile telephone.
  4. [48]
    Senior Constable Cameron gave evidence that he accessed the contents of both telephones and produced the reports which are the annexures to the first statement of admissions.
  5. [49]
    In relation to accessing the two mobile telephones, Senior Constable Cameron gave evidence as follows:
    1. (a)
      In relation to the Apple iPhone, he asked Ms McHarry for the pin number and she provided it to him.
    2. (b)
      He asked Ms McHarry for the pin number, which was a pattern, on the Optus mobile telephone.  Senior Constable Cameron gave evidence that Ms McHarry did not know it and asked the accused if it was his telephone and what was the pattern for it.  Senior Constable Cameron gave the Optus mobile telephone to the accused and he put the pattern into the telephone.
  6. [50]
    In relation to the search of the vehicle, Senior Constable Cameron gave evidence that:
    1. (a)
      A handbag was directly against the front of the passenger seat and Ms McHarry claimed ownership of the handbag.
    2. (b)
      A “loaded syringe” was found underneath the front seat of the car.  It would not have been seen by someone just getting into the car and sitting down.
    3. (c)
      Ms McHarry claimed ownership of the loaded syringe, the other syringes and the cannabis found inside a sunglasses case inside the handbag.  These items were not visible by someone looking at the handbag.
    4. (d)
      Ms McHarry claimed ownership of the methylamphetamine found.
    5. (e)
      The Optus mobile telephone was located in the same handbag Ms McHarry claimed ownership of which also included the drug related items also claimed to be owned by Ms McHarry.
    6. (f)
      At the roadside, Ms McHarry said that she had been using the accused’s telephone.  Further, Ms McHarry said at the roadside that she had sent messages that were on the accused’s telephone.
    7. (g)
      Back at the police station during the record of interview Ms McHarry had said that she had sent messages on the accused’s telephone.
    8. (h)
      Ms McHarry had said to him that the reason for using the accused’s telephone was “they tend to do what you want when they don’t think it’s a female”.
  7. [51]
    In respect of the statement made by Ms McHarry about the Optus mobile telephone and messages, Senior Constable Cameron gave evidence that:
    1. (a)
      He did not believe Ms McHarry.  He thought that the accused had sent the messages.
    2. (b)
      He did not think that Ms McHarry had sent the messages as she did not know it was the accused’s telephone when he asked her and also she did not know the pattern to get into the Optus mobile telephone.
    3. (c)
      It was a possibility that Ms McHarry had said she could not get into the telephone because she did not want police to have access to the telephone.
  8. [52]
    This opinion evidence given by the police officer is inadmissible but was not objected to at the trial.  It is not of assistance in determining the real issue.
  9. [53]
    Further, Senior Constable Cameron gave evidence that:
    1. (a)
      The accused at the roadside appeared unsteady on his feet and had bloodshot eyes.  An interview was not conducted with the accused at the time because of the accused’s state.
    2. (b)
      When the accused was told he was under arrest for drug offences, Ms McHarry said that she had used the accused’s telephone and apologised to the accused.  Following this, the accused became agitated and was arrested. 
  10. [54]
    Senior Constable Cameron’s involvement in the investigation concluded that night.  Detective Elliott continued with the investigation.
  11. [55]
    Senior Constable Cameron accepted there was no investigation to ascertain the location of the mobile telephones by using GPS to identify where messages were sent.  Further, no similar investigations were undertaken in relation to Facebook Messenger.  Senior Constable Cameron accepted that further things could have been done to pinpoint and track locations.

Elliott’s evidence

  1. [56]
    Detective Senior Constable Elliott is attached to the Sunshine Coast District Criminal Investigation Branch and was in the police motor vehicle on the evening of 31 March 2019 with Senior Constable Cameron.
  2. [57]
    Detective Senior Constable Elliott investigated relevant matters in relation to the accused.  He reviewed the Facebook Messenger application and messages from the Optus mobile telephone seized on the night of 31 March 2019.
  3. [58]
    In relation to Facebook Messenger, he took videos of the conversations that were captured in the application.  Annexure 4 to Exhibit 1 is a bundle of screenshots of the videos that Detective Senior Constable Elliott took of the conversations from Facebook Messenger.
  4. [59]
    Detective Senior Constable Elliott also gave evidence in relation to Exhibit 4 which is a CD of the video recording of Facebook Messenger.  This includes three imbedded videos of exchanges between Aaron Cooper and the user of the Optus mobile telephone.
  5. [60]
    In relation to the roadside search, Detective Senior Constable Elliott gave evidence that Senior Constable Cameron and Senior Constable Barker were the ones who conducted the actual search of the motor vehicle.  He was making other inquiries at that stage including communications with the rental company.
  6. [61]
    Detective Senior Constable Elliott gave evidence that he participated in the interview of Ms McHarry back at the police station.  He recalls some comments about her sending messages from the accused’s telephone but does not recall the specifics.  He gave evidence that she said that she had used the accused’s Optus mobile telephone but he was looking at both the Apple iPhone and the Optus mobile telephone and in light of that review found it hard to believe Ms McHarry’s statements in that respect.
  7. [62]
    Further, in respect of the review of the Facebook messages downloaded from the Optus mobile telephone he gave evidence that Facebook Messenger can be accessed by anyone with the credentials, the username and password and it can be accessed from any computer that has access to the internet with those credentials.  Further, on a mobile telephone, Facebook Messenger can be accessed using the Messenger icon and messages can be sent in the name of the person.  It is a similar position in relation to SMS text messages if you are already logged onto the telephone.
  8. [63]
    Detective Senior Constable Elliott gave evidence that:
    1. (a)
      He did not obtain anything from the telecommunications company as to where the telephones were when the messages were sent and no metadata was obtained.  These could have easily been obtained.
    2. (b)
      Without the data, you cannot show where both telephones were.  However, there were messages between the accused and Ms McHarry’s Facebook responding to the accused by Facebook Messenger.
  9. [64]
    On the evening during the search of the vehicle, Detective Senior Constable Elliott had limited contact with the accused.  He gave evidence that towards the end of the period at the roadside when the police officers were going through the exhibits that the accused’s demeanour was along the lines of the accused having bloodshot eyes, unsteady on his feet and slurring his words.
  10. [65]
    The accused was not interviewed that evening due to a combination of factors including the police had to deal with the vehicle, they wanted a better picture of what they were dealing with in regards to the contents of the telephones and it was not a suitable location to go through the telephones.
  11. [66]
    Back at the station, a decision was made not to interview the accused as the accused had shown further signs of distress and possibly not being in the right mindset to be interviewed.  Further, there was not time that night to fully look at both mobile telephones to establish the full extent of the messages.
  12. [67]
    Detective Senior Constable Elliott gave evidence that:
    1. (a)
      At the roadside the accused became more agitated towards Ms McHarry. 
    2. (b)
      Ms McHarry said to the accused “I used your phone.  I’m so sorry Dale”, and then the accused became upset at Ms McHarry. 
    3. (c)
      The accused was told to settle down by another police officer and that the accused said “I’m not running away.  Just get me away from her, please”.
    4. (d)
      After the accused was arrested, Ms McHarry said words to the effect of “I used his phone, he didn’t do anything, it was me”.  She said several times that she used his telephone.
  13. [68]
    Detective Senior Constable Elliott said he did not believe Ms McHarry based on what he saw in the messages but it is possible that Ms McHarry sent a message or two.  This opinion evidence is inadmissible but was not objected to at the trial.  It is not of assistance in determining the real issue.
  14. [69]
    During the interview with Ms McHarry, Detective Senior Constable Elliott questioned Ms McHarry whether there had been a previous discussion with the accused that she would “take the wrap” for the drug messages or activity.  Ms McHarry said no.
  15. [70]
    He also admitted that steps could have been taken to obtain evidence to show telephones in different locations but that was not done.  At the time, he did not consider it a necessary step.
  16. [71]
    In cross-examination Detective Senior Constable Elliott was questioned about an interaction with Ms McHarry and he confirmed that he had spoken to Ms McHarry outside Court prior to him giving evidence.  He mentioned to Ms McHarry about the offence of perjury.  He said that he made sure that Ms McHarry was aware of the possible ramifications of her actions if she gave evidence. 

Other witness ‒ Deanne Catherine McHarry

  1. [72]
    Following the closure of the Crown’s case, Counsel for the accused made an application that I call Ms McHarry as a witness to give evidence.  I allowed the application and called Ms McHarry as a witness.  Both Counsel for the accused and the Crown cross-examined Ms McHarry.
  2. [73]
    In relation to my calling of Ms McHarry as a witness I direct myself as follows[13]:
    1. (a)
      It was necessary for me to take the rare step of calling a witness.  It is rare as the adversarial system of justice is premised on the rival parties bearing the responsibility of calling and examining witnesses, not the judge.
    2. (b)
      The prosecution has the obligation to call all relevant witnesses, excluding the accused.
    3. (c)
      The prosecution’s duty to call a relevant witness is regardless of whether the witness may give evidence that contradicts or undermines the prosecution’s case. 
    4. (d)
      The prosecution is to fairly lay all relevant evidence before the jury (or in this case the judge) and leave it to the jury (or in this case the judge) to decide what evidence is accepted or rejected.
    5. (e)
      Having full regard to:
      1. The prosecution’s traditional role;
      2. The reality that there may be considerations the prosecution has had regard to that are not considerations the court has regard to; and
      3. The court’s traditional reluctance to usurp the role of the parties,

I concluded that the overriding interests of justice in this case required that I hear the testimony of Ms McHarry.

  1. (f)
    This conclusion says nothing about what view I may take of her reliability.
  2. (g)
    My action in calling Ms McHarry was solely concerned with my view that the interests of justice required her evidence to be known to me so that I may give such weight to her evidence as I see fit.
  3. (h)
    The parties were at liberty to question the witness.  Each party could ask questions that were leading or non-leading.
  4. (i)
    This process was anticipated to inform me of the pros and cons of Ms McHarry’s evidence so that I may evaluate it together with the other evidence at the trial and give it as much weight as I think fit.

Evidence of Ms McHarry

  1. [74]
    Prior to her giving evidence, arrangements were made for Legal Aid Queensland to advise Ms McHarry in relation to her right to claim privilege against self-incrimination.  Ms McHarry was also warned at various stages during her evidence in respect of the privilege against self-incrimination.  Ms McHarry answered the questions she was asked, as she could do, without claiming the privilege against self-incrimination even though the answers tended to show that she committed a criminal offence, namely trafficking in dangerous drugs.
  2. [75]
    Ms McHarry was cross-examined by the accused’s Counsel and gave evidence as follows:
    1. (a)
      She had been in a relationship with the accused for four and a half years.  She is not in a relationship with the accused now.  She currently resides with her mother.
    2. (b)
      On the night of 31 March 2019 she was driving the Holden Colorado.  The police pulled her over as the rental vehicle had not been returned when it was supposed to.  The accused was in the car with her at the time.
    3. (c)
      In respect of the accused:
      1. He had taken some Endone tablets that day.  He had been taking Endone for as long as she had known him. 
      2. He was a high user of Endone for some time.  After he took Endone, the accused was sleepy, drowsy and not focused.  The accused was not really “with it” when he was under the influence of Endone.  The accused took Endone for bad pain in his wrist and his back and was taking a lot of Endone to cope with the pain.
      3. When he was taking Endone, she was not able to hold a proper conversation with him.  That was a regular occasion.  He was zoned out and not really with it.  She was able to do things even in his presence that he was not really aware of.
    4. (d)
      The Holden Colorado was hired by her in her name.  She had all dealings with the rental car company about extending it and paying for it.
    5. (e)
      After the motor vehicle was pulled over, the police conducted a search of the vehicle.
      1. Her black handbag was in the Holden Colorado on the passenger floor, which was behind the legs of the accused.
      2. The police found under the passenger seat a sunglass case that contained a “loaded syringe” which had some methylamphetamine and water in it.  She accepted ownership of it.
      3. There was also a sunglass case inside the handbag and the police found some drugs and related items inside.  She claimed ownership of all of these items.  This included some methylamphetamine and cannabis, scales, a straw and unused clip seal bags.  The accused did not know those items were there.  The accused did not have anything to do with the ownership of these items.  The accused did not provide funds to purchase them.
      4. Both the sunglasses case inside the handbag and the one under the seat would not have been able to be seen by the accused getting in and out of the car. 
    6. (f)
      In respect of the two mobile phones found by police:
      1. An Apple iPhone belonged to her.  It was found in her handbag. There was also an Optus mobile telephone that was used by the accused.  Both phones were on pre-paid plans.
      2. When credit ran out on her phone, she would use the accused’s Optus mobile telephone.  She used the accused’s Optus mobile telephone quite regularly.
      3. The accused was not a big user of his mobile telephone himself.  The accused was asleep a lot of the time due to the Endone. 
      4. When she used the accused’s Optus mobile telephone, the accused did not look at what she was using it for or what messages she sent.  When messages were received on the telephone, the accused did not take any notice of them.  When a message came in on the telephone, she would grab it and look at it.  She always checked it before the accused.  The accused did not ask what the messages were about.  The accused was in a state that he did not really care what was going on around him.
      5. At the time of the search at the roadside, she did know the pattern for the pin code for the accused’s telephone.  When the police asked her for the pattern, she said she did not know it.  That was because she knew there were messages on the phone that she did not want them to see.  The messages related to providing drugs to people, getting drugs from people and things of that nature.
  3. [76]
    In cross-examination, Counsel for the accused took Ms McHarry to the specific SMS/text messages relied upon by the Crown as the acts constituting the trafficking.  Ms McHarry gave evidence in respect to each message that she sent the SMS/text messages and the accused did not see the messages.  Ms McHarry gave evidence:
    1. (a)
      She was pretending to be the accused and was pretending to make the messages sound like they were a male talking to another male.  A lot of the people were people that the accused knew but she took advantage to send them messages and get them to buy “stuff” off her.  The people thought they were actually dealing with the accused.
    2. (b)
      Message 130 is an outgoing message to Wendy which says “Yes I can im feeling better now lying naked on my bed”.  She sent messages like that to everybody.  By this time, she had been doing this for some time and started to get a bit playful with pretending to be the accused.  This included sending a photograph of the accused’s penis to Wendy. 
    3. (c)
      At the time, she was taking a reasonable amount of drugs herself.  In about February 2019 she had a run in with her ex-partner and this triggered some PTSD and mental health issues.  She started using heavily because of dealing with those issues.
    4. (d)
      She started getting more and more drugs to feed her increasing habit and could not pay for them.  She got some on credit.  Her debt was pretty large and she ended up selling drugs to try and pay off the debt.
  4. [77]
    Ms McHarry gave evidence that it is not the case that the accused never had the Optus mobile telephone in his possession and it is not the case the accused never ever sent a message from the telephone.  But because the accused, she said, was “out of it” most of the time, she was able to use the Optus mobile telephone and hide things from him, particularly drug related messages.
  5. [78]
    Further, Counsel for the accused cross-examined Ms McHarry in relation to the relevant screenshots of the Facebook Messenger messages contained in Annexure 4 to Exhibit 1 relied upon by the Crown.  Ms McHarry gave evidence as follows:
    1. (a)
      She accessed Facebook Messenger on the accused’s telephone by putting the pin into the telephone and then pressing the icon for Facebook Messenger and it came up pre-logged in through the application on the telephone.
    2. (b)
      The outgoing messages are the blue ones offset to the right.  The outgoing blue messages were from her.
    3. (c)
      In respect of each of the message conversations she was taken to, she says that she sent the messages from the accused’s account.  The accused was not aware of her sending those messages and he was not aware of the messages. 
    4. (d)
      Where messages refer to meeting people, she went to meet people to provide them with the “stuff” and made out that she was simply there as a courier for the accused because she was keeping up the pretext that it was the accused that was actually doing the business.
    5. (e)
      In relation to the messages from 23 March, Cahdr had her telephone and she had the accused’s telephone so the messages were between her and Cahdr, not the accused.  This happened as Cahdr had no credit on her telephone and she loaned her telephone to Cahdr and she took the accused’s telephone.
  6. [79]
    Ms McHarry gave evidence that she did not send every single SMS or Facebook Messenger message on the Optus mobile telephone.  She is not aware of whether there are other possible drug related messages on either Facebook or in text messages she may not have sent.  However, she gave evidence that as far as she was aware, she was the only one who sent drug messages on the Optus mobile telephone.
  7. [80]
    Further, Ms McHarry gave evidence that no-one made her any promise to give her anything if she came and gave evidence in Court.  Further, no-one threatened her in any way and there was no inducement.  She came of her own accord.
  8. [81]
    Ms McHarry’s evidence was that she came along to give evidence as her dad brought her up to own her mistakes and that is what she was doing.  She did not believe that the accused should be punished for her mistakes.
  9. [82]
    At the time of the messages, she was using a fair amount of drugs.  She is currently not using illicit drugs.
  10. [83]
    Further, Ms McHarry gave evidence that she immediately claimed ownership of the drugs that were found at the roadside.  There was never any delay.  She said that they were hers as the police officers found the items.
  11. [84]
    When the police officers accessed the accused’s telephone, she immediately indicated that she had been sending messages on the accused’s telephone.  She told the accused at the roadside that she was sorry for doing that.  The accused became quite upset and there was a commotion and the accused had to be restrained by the police.  This evidence is supported by the evidence given by the police witnesses.
  12. [85]
    When she was taken back to the police station she took part in a record of interview and again told the police that she had sent the messages and that the accused was not involved.  This evidence was also supported by the evidence given by the police witnesses.  Ms McHarry maintained this position, including when she was sentenced for some charges in relation to possession and supply. 
  13. [86]
    At her sentencing hearing it was mentioned in submissions that she had indicated that she was responsible for further offending, placing messages on the Optus mobile telephone that was found.
  14. [87]
    Throughout the whole period she told police that she was the one doing the offending and the accused did not have anything to do with it.
  15. [88]
    The accused’s Optus mobile telephone was in her handbag and it was a regular thing that she just kept his telephone in her bag.  Given his state using Endone, he did not use his telephone much or care much for it.
  16. [89]
    The Prosecutor also cross-examined Ms McHarry and she gave evidence as follows:
    1. (a)
      She was driving the car when it was pulled over by police on 31 March 2019 and the accused was in the car with her.
    2. (b)
      Her licence was not disqualified and had not been disqualified in the months preceding 31 March.  Her licence was disqualified for six weeks after the offence as she was under the influence of drugs that night.
    3. (c)
      In March she was not under a probation order.
    4. (d)
      She was not a “car person” and could not recall the make of the car.
    5. (e)
      The police seized two mobile telephones on 31 March, one being an Apple iPhone and one being an Optus mobile telephone.  The Apple iPhone was her telephone.  She had the Apple iPhone with her that night and it was her telephone the preceding few months.  She was not the only one who used that telephone.  Anybody and everyone who was at the house where she was living also could use the telephone.  Her friends and anyone who came to the house had access to it.  She allowed them to use it.  Some of the people were Cahdr, Dylan, Chloe, Dale, Callum and Addison.  They had access to her telephone because they had no credit.
    6. (f)
      The Optus mobile telephone that the police seized was generally the accused’s.  She used the telephone frequently. 
    7. (g)
      She used the Apple iPhone a lot and had contacts saved into that telephone.  She inputted those contacts.  She used that telephone to send messages to other people.  She sent messages to her mother from that telephone.  She also used that telephone to communicate with the accused.  The accused was saved as a contact in her Apple iPhone. 
    8. (h)
      When she sent messages to the Optus mobile telephone, the responses would not always be from the accused.  There were times that people like Cahdr had the Apple iPhone and she had the Optus mobile telephone and it would appear that she was messaging the accused but she was actually talking to Cahdr.
    9. (i)
      Apart from examples like that when she was sending text messages from her Apple iPhone to the accused, it was the accused who was responding back.
    10. (j)
      On 30 and 31 March 2019 she had a Facebook Messenger account on her Apple iPhone.
    11. (k)
      The accused also had the Facebook Messenger application on the Optus mobile telephone.  She used the Facebook Messenger application on the Optus mobile telephone using the accused’s account.  She did not know the accused’s password on the Facebook account.  She just used the application on the Optus mobile telephone.
    12. (l)
      She was communicating with the accused on Facebook Messenger at times from her Apple iPhone to the Optus mobile telephone.  She also texted the accused from her Apple iPhone.  These were times when she did not have the Optus mobile telephone.  Her evidence was also that they used to chat with each other in the same room with her on the Apple iPhone and the accused on the Optus mobile telephone.
    13. (m)
      On 31 March 2019 the accused was living in Diamond Valley on the Sunshine Coast.  She was living between Diamond Valley and Toowoomba spending 95 percent of her time at Diamond Valley.  In Toowoomba, she was living with her mum.  In February and March 2019 her mother lived in a different house to where she lives now.
    14. (n)
      She is still in contact with the accused but they are no longer together.  The accused is also in Toowoomba.  They see each other very occasionally.
    15. (o)
      In March 2019 she travelled between the Sunshine Coast and Toowoomba, so there were times she was in Toowoomba and times she was in the Sunshine Coast.
    16. (p)
      When she was in Toowoomba and the accused was in the Sunshine Coast the accused had the Optus mobile telephone and she had the Apple iPhone.  She would message the accused letting him know when she had left Toowoomba and to meet him at the Sunshine Coast.
  17. [90]
    Annexure 6 to Exhibit 1 is a report of the text messages from the Apple iPhone.  Ms McHarry was taken to a number of text messages including messages 265, 282, 287 and 288.  These refer to her waiting in the car for the accused to give her the go ahead to come to the house.  Further, these messages on their face suggest that Ms McHarry was in Toowoomba and was travelling to the Sunshine Coast. 
  18. [91]
    Ms McHarry gave evidence that she could have possibly been at the Coast even though the messages suggest that at a date and time she was in Toowoomba.  This is because she used to go visit friends at the Coast and stay at their houses until the accused allowed her to come to the house.  She accepted as a possibility that the message could have been sent from Toowoomba.
  19. [92]
    Ms McHarry was also questioned about message 477 which is on 7 March 2019.  The outgoing message on the Apple iPhone states “I can come tonight.  Let me know”.  When asked if it would be fair to say that that message was sent from Toowoomba, Ms McHarry’s evidence was that she possibly would have been at a friend’s place at the Coast.  She was either at a friend’s place at the Coast or at Toowoomba but she is not 100 percent sure.
  20. [93]
    Ms McHarry was also questioned about message 471 sent on 7 March 2019 which states “I am still about 45 mins from Toowoomba.  So let me know if you want me to come down or not”.  In response to a question as to whether she was confident that she was in Toowoomba when that message was sent, Ms McHarry gave evidence that she used to tell the accused that sometimes she was in Toowoomba when she was actually at the Coast.  She accepted that she could have been in fact 45 minutes from Toowoomba but the likelihood was she was most likely at the Coast.

The accused neither gave nor called evidence

  1. [94]
    As was his right, the accused chose not to give or call evidence.  I remind myself that this does not alter the burden on the Crown.  The fact that he did not give evidence is not evidence against him.  It proves nothing.

Overview of the evidence

  1. [95]
    I am required to determine the credibility and reliability of each witness.
  2. [96]
    I have done so, having regard to the impression which they gave when giving evidence, the manner in which they gave it, their apparent ability to recall the matters of substance, when they were first asked to recall a matter and the consistency or otherwise of the evidence which they gave with statements that they may have made at an earlier time.
  3. [97]
    Having made a provisional assessment of the credibility and the reliability of each witness at the time they gave their evidence, I have considered my assessment in the light of other evidence given by the witnesses, the documents tendered as exhibits and the admissions.
  4. [98]
    I have also had regard to the submissions made concerning the evidence of the witnesses.
  5. [99]
    I have considered possible reasons which particular witnesses may have had to tell the truth or to conceal the truth.

Consideration of evidence and submissions

  1. [100]
    In respect of the location of the Optus mobile telephone, both Senior Constable Cameron and Ms McHarry gave evidence that the Optus mobile telephone was located in the handbag.  The Crown contends that both are mistaken as the location of the phone was with the accused as admitted in [5] of the first set of admissions.
  2. [101]
    The Crown contends that the two trafficking counts are established by:
    1. (a)
      The admissions in respect of the location of the drugs and the Optus mobile telephone;
    2. (b)
      The inference from the particularised messages (contained in Annexures 2 and 4 of Exhibit 1) that there is a trade of drugs together with the admissions in respect of decoding the messages;
    3. (c)
      The drug analyst certificates (Exhibits 2 and 3).
  3. [102]
    The Crown contends that the two counts of possession of dangerous drugs are established by:
    1. (a)
      Trafficking activity proximate to the drugs being found;
    2. (b)
      Location of the Optus mobile telephone on the accused;
    3. (c)
      (a) and (b) above, lead to the conclusion that the accused had knowledge of the drugs; and
    4. (d)
      The drugs were under the seat where the accused was the passenger.
  4. [103]
    The Crown contends that the count of possession of the Optus mobile telephone is established by:
    1. (a)
      The Optus mobile telephone being on the accused’s person; and
    2. (b)
      The inference drawn from the accused’s use of the Optus mobile telephone for drug trafficking.
  5. [104]
    As identified earlier, the central issue is whether the Crown has established beyond reasonable doubt that the accused was the person trafficking the drugs.   The Crown accepted that this meant that it had to convince the court that it was not Ms McHarry who was engaging in the drug transactions, but it was in fact the accused.
  6. [105]
    The Crown also acknowledged that even if I did not accept the evidence of Ms McHarry, I still need to be satisfied on the evidence beyond a reasonable doubt that the accused sent the drug messages. I accept that submission.  The Crown contends that this conclusion can be found based on the accused as the possessor of the Optus mobile telephone and the content of the specific messages in the relevant periods.
  7. [106]
    To establish this the Crown focussed on the 21 to 25 March period and examined two aspects of the evidence in parallel:  Ms McHarry’s Apple iPhone and the messages on the Optus mobile telephone.  The messages on Ms McHarry’s Apple iPhone are contained in Annexure 6 in Exhibit 1.
  8. [107]
    The Crown contends that the messages on the Apple iPhone establish that Ms McHarry was in Toowoomba for the period 21 to 25 March.
  9. [108]
    Further the Crown contends that in this period there are messages on the Optus mobile telephone which support the accused having the Optus mobile telephone and them not being in the same location.  These include:
    1. (a)
      A request by Ms McHarry for the paperwork for the Holden Colorado.
    2. (b)
      An exchange about depositing money.
    3. (c)
      An exchange about Ms McHarry giving an excuse regarding not returning the rental vehicle.
    4. (d)
      Further exchanges about the rental vehicle.
    5. (e)
      Exchanges about police checkpoints.
    6. (f)
      Exchanges about missing each other and Ms McHarry packing clothes.
    7. (g)
      An exchange about the accused asking her to put a MacBook up for sale.
  10. [109]
    Further the Crown contends that the drug related text and Facebook messages contain details which support the conclusion that the accused was the one sending the messages.  These include:
    1. (a)
      The embedded videos on 23 March that support the accused having the motor vehicle and sending the drug related messages with “Aaron”, including the male voice and the responses identifying “Dale”.
    2. (b)
      Messages, including videos, indicating pride towards the Holden Colorado rental car, inconsistent with Ms McHarry’s personality.
    3. (c)
      Reference in messages to probation and a court appearance on 13 February.  This is a detail unique to the accused (see [2] of the second set of admissions).
    4. (d)
      Reference in messages to offence of disqualified driving and committing the offence of failing to comply with the requirement to produce a motor vehicle.  This is a detail unique to the accused (see [3] of the second set of admissions).
  11. [110]
    In these circumstances, the Crown contends that in the period 4 to 31 March there are a mixture of drug related messages and other messages.  Further, the Crown contends that it is illogical to conclude that the drug related messages are Ms McHarry when there are so many other messages that support the idea that it is the accused who is using the Optus mobile telephone and sending messages.
  12. [111]
    In respect of Ms McHarry the Crown also contends that I should not accept her evidence as truthful.  In this regard they point to a number of factors including:
    1. (a)
      The dysfunctional dynamic that existed between the accused and Ms McHarry;
    2. (b)
      Examples of where Ms McHarry was prepared to lie to meet the accused’s needs, including:
      1. Purposely acting stressed when dealing with the rental company.
      2. Lying to the rental company to prevent them reporting the car stolen.
      3. Offering to lie to the accused’s landlord to assist the accused.
      4. Being prepared to lie to police in relation to the accused’s failure to produce a motor vehicle.
  13. [112]
    The Crown ultimately submits that:
    1. (a)
      Ms McHarry is unconvincing and I should dismiss her evidence entirely, particularly given the evidence that demonstrates that she is a liar and that she is prepared to lie to others, including police, about matters that would see the accused face criminal charges.
    2. (b)
      The court should conclude that the overwhelming inference is that the accused was the user of the Optus mobile telephone at the relevant time and he had knowledge of the drugs that were found in the motor vehicle, and therefore he is guilty of the two counts of trafficking and the two counts of possession of drugs and the one count in respect of the Optus mobile telephone.  This conclusion is reliant on a combination of:
      1. The frequency of the Facebook messages with the text messages;
      2. The frequency of the use of the Optus mobile telephone;
      3. The nature of the messages;
      4. The content of the messages, including content that is uniquely specific to the accused (such as male voice in video and the references to probation, court and failure to produce a motor vehicle).
  14. [113]
    The accused relies on the evidence of Ms McHarry that:
    1. (a)
      She used the accused’s Optus mobile telephone and sent the relevant messages that are alleged to be the acts of trafficking, and the accused did not know the messages were being sent.
    2. (b)
      She owned the drugs and other items found in the motor vehicle and the accused was not aware of the drugs being in her handbag or under the seat.
  15. [114]
    The accused contends that the Court should find Ms McHarry a credible and reliable witness.  Particularly, she should be accepted given she gave evidence knowing that she may be in jeopardy of being charged with serious offences, after having been advised of her right to claim the privilege against self-incrimination.
  16. [115]
    It is accepted that there are some inconsistencies in her evidence.  This may be partly explicable given she was a user of a large amount of drugs at the time.  
  17. [116]
    Counsel for the accused submits that Ms McHarry maintained her evidence given previously and her credibility and reliability remained despite the inconsistencies put to her in cross-examination.
  18. [117]
    Further, Counsel for the accused contends that Ms McHarry’s explanation for giving evidence was plausible:  she is no longer on drugs and wanted to do the right thing and not see the accused convicted for her actions.
  19. [118]
    Counsel for the accused submits that unless I completely reject Ms McHarry’s evidence beyond reasonable doubt, I must acquit the accused on all counts.
  20. [119]
    The prosecutor questioned whether Ms McHarry’s evidence must be rejected beyond reasonable doubt before the accused could be found guilty.  The Crown contends that the burden of proof only attaches to the elements of the offence.  The issue is whether the evidence of Ms McHarry – whether it is accepted or rejected – brings a reasonable doubt to the elements of the trafficking offence.
  21. [120]
    Proof that the accused sent the relevant text and Facebook Messenger messages is a necessary link in the chain of logic necessary to convict the accused of trafficking.  As already explained, proof of trafficking is necessary to convict the accused of each of Counts 3, 4 and 5.
  22. [121]
    In order to prove that the accused sent the text and Facebook Messenger messages I would have to be satisfied beyond reasonable doubt that they were not sent by Ms McHarry, or at least sent by her with the authority of the accused.
  23. [122]
    Ms McHarry has given sworn evidence that she sent the messages without the knowledge or authority of the accused.  To convict the accused I would have to be satisfied beyond reasonable doubt that her evidence in those respects was false.
  24. [123]
    Ms McHarry was a cooperative witness and answered the questions put to her in cross-examination by Counsel for the accused and the Crown.  While there are some aspects of her evidence which are hard to reconcile with the messages on the Apple iPhone and the Optus mobile telephone, on balance, her evidence that she sent the drug related messages on the Optus mobile telephone and that the accused was not aware that she was sending the messages is plausible.  It is consistent with what she told police at the roadside, in the interview later that night and the position at her sentencing on charges arising from that evening. 
  25. [124]
    I do not need to accept every aspect of her evidence and it is unnecessary for me to analyse each and every aspect of her evidence.  The following parts of Ms McHarry’s evidence are also plausible:
    1. (a)
      She sometimes lied to the accused as to where she was.  She would message him that she was in Toowoomba but she was on the Sunshine Coast or somewhere else.
    2. (b)
      She pretended to be the accused sending the messages intentionally so people thought they were dealing with a male. 
    3. (c)
      She thought she would get better traction supplying drugs to people as a male and others would more likely listen and do what she wanted if they thought they were dealing with a male.
    4. (d)
      The accused’s regular use of Endone meant he was in a state where she could conduct the course of conduct without him being aware that she was using his Optus mobile telephone and impersonating him.
    5. (e)
      At the time she was leading a chaotic drug lifestyle and was under the influence of drugs.
  26. [125]
    I accept the evidence of Ms McHarry to the extent that the messages were sent by her without the authority of the accused.  I am prepared to accept the evidence in that I find it more likely than not to be true, although as I have explained the Crown case fails even if I am not so satisfied, her evidence left me with a reasonable doubt of the matters critical to the Crown case, namely that the accused sent the messages.
  27. [126]
    As a result of my findings in respect of Ms McHarry’s evidence, the Crown has not established beyond reasonable doubt that the accused was the person sending the relevant drug related messages on the Optus mobile telephone or that he had sufficient knowledge of the activities.  Accordingly, the Crown has not established beyond reasonable doubt that the accused is guilty of the two trafficking counts.
  28. [127]
    Given the way the Crown conducted the case, the necessary consequence is that the Crown has also not established the three possession counts beyond reasonable doubt.

Verdict

  1. [128]
    Count 1:  Not guilty.
  2. [129]
    Count 2:  Not guilty.
  3. [130]
    Count 3:  Not guilty.
  4. [131]
    Count 4:  Not guilty.
  5. [132]
    Count 5:  Not guilty.

Footnotes

[1]Section 644 Criminal Code.

[2][2020] QSC 231 at [12]-[24].

[3]Peacock v The King (1911) 13 CLR 619 at 634 per Griffith CJ quoted in Barca v The Queen (1975) 133 CLR 82.

[4]Shepherd v The Queen (1990) 170 CLR 573 at 578.

[5]R v Baden-Clay (2016) 258 CLR 308 at 324; Peacock v The King (1911) 13 CLR 619 at 661 quoted in Barca v The Queen (1975) 133 CLR 82 at 104.

[6]R v Baden-Clay (2016) 258 CLR 308 at 324 quoting R v Hillier (2007) 228 CLR 618 at 637.

[7]R v Baden-Clay (2016) 258 CLR 308 at 324 citing R v Hillier (2007) 228 CLR 618 at 638.

[8]Peacock v The King (1911) 13 CLR 619 at 634 per Griffith CJ.

[9]R v Elhusseini [1988] 2 Qd R 442 at 450 to 451.

[10]Martin v Osborne (1936) 55 CLR 367 at 376.  R v Kelly [2005] QCA 103 at [7].

[11]References to text messages set out in the report at Annexure 2 of Exhibit 1.

[12]Reference to page numbers of the screen shots contained at Annexure 4 of Exhibit 1.

[13]Directions based on the instructions to the jury by Henry J recorded as an Associate’s note in R v Peros [2018] 1 Qd R 1 at 16 – 18.

Close

Editorial Notes

  • Published Case Name:

    R v Pyritz

  • Shortened Case Name:

    R v Pyritz

  • MNC:

    [2020] QSC 347

  • Court:

    QSC

  • Judge(s):

    Williams J

  • Date:

    20 Nov 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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