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, followedCOUNSEL:
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
The accused pleaded not guilty before me in relation to five counts on Indictment No. 722 of 2020 as follows:
(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)).
(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).
(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).
(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).
(e)Count 5:…
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Details
- AGLC
- R v Pyritz [2020] QSC 347
- Case
- [2020] QSC 347
- Decision Date
CaseChat Overview and Summary
The case of R v Pyritz involved the accused, who was a passenger in a rental car driven by his then-partner, Deanne Catherine McHarry. The car was reported stolen and was pulled over by police. A search of the car revealed dangerous drugs and phones. The prosecution sought to establish that the accused was the person using the phone to trade drugs. The accused's ex-partner gave evidence that she sent the messages, not the accused. The court had to decide whether the prosecution had proved beyond reasonable doubt that the accused was the person using the phone to trade drugs.
The court considered the circumstantial evidence presented by the prosecution and the conflicting evidence from McHarry that she was the one who sent the messages. The court noted that the prosecution needed to prove beyond reasonable doubt that the accused was the person using the phone to trade drugs. The court found that the prosecution had not met this burden of proof. The court accepted that the accused's ex-partner had sent the messages and that there was no direct evidence linking the accused to the phone or the messages.
The court found the accused not guilty of all charges. The court accepted that the accused was a passenger in the car and that the drugs and phones found in the car were not his. The court found that the prosecution had not proved beyond reasonable doubt that the accused was the person using the phone to trade drugs. The court emphasised the importance of the prosecution proving its case beyond reasonable doubt.
The court ordered that the accused be released from custody. The court also ordered that the charges be dismissed. The court noted that the accused had been in custody for a significant period of time and that the prosecution had not been able to prove its case. The court emphasised the importance of ensuring that individuals are not deprived of their liberty without sufficient evidence.
The court considered the circumstantial evidence presented by the prosecution and the conflicting evidence from McHarry that she was the one who sent the messages. The court noted that the prosecution needed to prove beyond reasonable doubt that the accused was the person using the phone to trade drugs. The court found that the prosecution had not met this burden of proof. The court accepted that the accused's ex-partner had sent the messages and that there was no direct evidence linking the accused to the phone or the messages.
The court found the accused not guilty of all charges. The court accepted that the accused was a passenger in the car and that the drugs and phones found in the car were not his. The court found that the prosecution had not proved beyond reasonable doubt that the accused was the person using the phone to trade drugs. The court emphasised the importance of the prosecution proving its case beyond reasonable doubt.
The court ordered that the accused be released from custody. The court also ordered that the charges be dismissed. The court noted that the accused had been in custody for a significant period of time and that the prosecution had not been able to prove its case. The court emphasised the importance of ensuring that individuals are not deprived of their liberty without sufficient evidence.
Orders
Orders of the court
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Background
Background to the litigation
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 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.2.The defendant was a passenger; seated in the front passenger seat of the ute.3.The defendant and Ms McHarry were the only people in the ute.4.At about 7.15pm, police stopped the ute in Kalowendha Avenue, Pelican Waters.5.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’).6.Police searched the ute. Located was an Apple iPhone 7 plus (‘Apple iPhone’). Ms McHarry admitted this was her phone.7.Near the front passenger seat of the ute, police located the following property:(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.(b) A black handbag (on the floor of the front passenger seat) a. Inside the bag was a black sunglass casei.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 bags8.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. 9.The green leafy material is cannabis weighing approximately 6 grams; per the Analyst’s Certificate. [sic] analysed and the Analysis Certificate identifies.ZTE Mobile10.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. 11.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.12.Annexures [1] to [3] are the reports of the data copied and extracted from the ZTE mobile.13.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.14.Annexure [2] is Text Messages. The data in each of the columns is:(a) # - the data as ordered by the Cellebrite device;(b) Number ‒ the phone number that has either sent or received a text message from the ZTE Mobile;I Name ‒ this data comes from the ‘Phone Contacts’ or if it does not match any of the ‘Phone Contacts’ data; is marked ‘N/A’;(d) Date and Time ‒ this is the date and time the message was either sent or received by the ZTE Mobile;I SMSC ‒ a device network phone number (irrelevant);(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’;(g) Folder ‒ where the message is stored;(h) Storage ‒ where the message is stored;(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’.(j) Text ‒ the text message. This data has to be manually imputed. 15.Annexure [3] is the Call Logs. The data in each of the columns is:(a) # - the data as ordered by the Cellebrite device;(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’;I Number ‒ The phone number of the caller; or the phone number dialled;(d) Name ‒ irrelevant;I Date and Time ‒ this is the date and time the call was either made or received by the ZTE Mobile;(f) Duration ‒ the length of time of the phone call.16.Detective Senior Constable Glenn Elliott also reviewed other applications on the ZTE Mobile. One application was Facebook Messenger.17.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.18.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.19.Annexure [4] is screen shots of the videos of the communications in Facebook Messenger.(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; (b) Communications on the right of the images are those sent by the ZTE Mobile user;I Communications on the left of the images are those sent by other users;(d) The date and time above the written messages is the date and time a message was sent.Apple iPhone20.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.21.Annexures [5] to [9] are the reports of the data copied and extracted from the Apple iPhone.22.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.23.Annexure [6] is Text Messages. The data in each of the columns is:(k) # ‒ the data as ordered by the Cellebrite device;(l) Number ‒ the phone number that has either sent or received a text message from the Apple iPhone;(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’;(n) Date and Time ‒ this is the date and time the message was either sent or received by the Apple iPhone;(o) SMSC ‒ a wireless network phone number (irrelevant); (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’;(q) Folder ‒ where the message is stored;I Storage ‒ where the message is stored;(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’;(t) Text ‒ the text message. This data has to be manually imputed.24.Annexure [7] is the Call Logs. The data in each of the columns is:(g) # ‒ the data as ordered by the Cellebrite device;(h) Type ‒ this indicates whether the message was made by the Apple iPhone user; or received. The former is indicated ‘Incoming’; the latter ‘Outgoing’;(i) Number ‒ The phone number of the caller; or the phone number dialled;(j) Name ‒ irrelevant;(k) Date and Time ‒ this is the date and time the call was either made or received by the Apple iPhone;(l) Duration ‒ the length of the time of the phone call.25.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.26.Annexure [9] is a catalogue of internet searches conducted by the user of the Apple iPhone.Codes27.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:
Evidence
Evidence Before The Court
Senior Constable Barker was not involved in relation to the investigation of the issues arising out of the search.Cameron’s evidence 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. 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. Senior Constable Cameron seized the two mobile telephones which are the subject of admissions, namely an Apple iPhone and an Optus mobile telephone. 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. In relation to accessing the two mobile telephones, Senior Constable Cameron gave evidence as follows:(a)In relation to the Apple iPhone, he asked Ms McHarry for the pin number and she provided it to him.(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. In relation to the search of the vehicle, Senior Constable Cameron gave evidence that:(a)A handbag was directly against the front of the passenger seat and Ms McHarry claimed ownership of the handbag.(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.(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.(d)Ms McHarry claimed ownership of the methylamphetamine found.(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.(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. (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.(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”. In respect of the statement made by Ms McHarry about the Optus mobile telephone and messages, Senior Constable Cameron gave evidence that:(a)He did not believe Ms McHarry. He thought that the accused had sent the messages.(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.(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.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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