Cole v Murnane

[2026] ACTSC 278

Supreme Court of the ACT|2026-08-05|Before: Ainslie-Wallace AJ

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Supreme Court of the ACT

Decision date

2026-08-05

Before

Ainslie-Wallace AJ

Catchwords

CRIMINAL LAW – APPEAL – Appeal from Magistrates Court – appeal against finding of guilt – trafficking in methylamphetamine – trafficking in GHB – dealing with the proceeds of crime – where the appellant’s backpack was found to contain a trafficable quantity of GHB, less than the trafficable quantity of methylamphetamine and $12,550 in cash – whether Magistrate’s findings were supported by the evidence – whether unsupported findings undermined other findings, including finding on the appellant’s credibility – appeal dismissed

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Original judgment source is linked above.

Catchwords

CRIMINAL LAW – APPEAL – Appeal from Magistrates Court – appeal against finding of guilt – trafficking in methylamphetamine – trafficking in GHB – dealing with the proceeds of crime – where the appellant’s backpack was found to contain a trafficable quantity of GHB, less than the trafficable quantity of methylamphetamine and $12,550 in cash – whether Magistrate’s findings were supported by the evidence – whether unsupported findings undermined other findings, including finding on the appellant’s credibility – appeal dismissed

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Cole v Murnane Citation: [2026] ACTSC 278 Hearing Date: 30 July 2026 Decision Date: 5 August 2026 Before: Ainslie-Wallace AJ Decision: (1) The appeal is dismissed and the convictions on charges CAN 4916/2024, CAN 10650/2024 and CAN 10651/2024 are confirmed. Catchwords: CRIMINAL LAW – APPEAL – Appeal from Magistrates Court – appeal against finding of guilt – trafficking in methylamphetamine – trafficking in GHB – dealing with the proceeds of crime – where the appellant’s backpack was found to contain a trafficable quantity of GHB, less than the trafficable quantity of methylamphetamine and $12,550 in cash – whether Magistrate’s findings were supported by the evidence – whether unsupported findings undermined other findings, including finding on the appellant’s credibility – appeal dismissed Legislation Cited: Crimes Act 1900 (ACT), s 114C Criminal Code 2002 (ACT), ss 603(7), 604 Drugs of Dependence Act 1989 (ACT), ss 169, 171 Evidence Act 2011 (ACT), s 104, Dictionary Magistrates Court Act 1930 (ACT), ss 208(1)(b), 218(1)(a) Cases Cited: Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 Garay v The Queen (No 3) [2023] ACTCA 2 Liberato v The Queen [1985] HCA 66; 159 CLR 507 Parties: James Cole (Appellant) Aaron Murnane (Respondent) Representation: Counsel J de Bruin (Appellant) M Dyason (Respondent) Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: SCA 51 of 2025 Decision Under Appeal: Court: ACT Magistrates Court Before: Special Magistrate Wilson Date of Decision: 21 October 2025 Case Title: The Police v James Cole Court File Numbers: CAN 4916 of 2024 CAN 10650 of 2024 CAN 10651 of 2024 AINSLIE-WALLACE AJ: Introduction

The Prosecution case is as follows. On 23 December 2022, police officers saw the Appellant riding an electric scooter at a speed estimated by the police to be in excess of 90 km/h. The police directed the Appellant to stop and he did not. The police chased the Appellant, who was eventually stopped when he fell from his scooter and a police motorcycle was positioned in his way. The Appellant attempted to run away but was stopped and arrested.
The Appellant was wearing a backpack which was searched by police. It was found to contain, relevantly: (a) six glass pipes containing residue; (b) three clear vials containing liquid; (c) five clear fish-shaped containers, two of which were empty and three of which contained a clear liquid; (d) three clear long-stemmed vials; (e) five clear clip seal bags containing a white crystalline substance; (f) a medium sized clip seal bag containing further clip seal bags; (g) a “Digitech” branded scale; (h) two glass “Sweet Puff” branded pipes; and (i) $12,550 cash.
The clear liquid was analysed and found to be GHB with a weight of 46.691 grams and the crystalline substance was determined to be methylamphetamine weighing 5.391 grams.
The Appellant was charged with trafficking in a controlled drug, being GHB, and trafficking in a controlled drug, being methylamphetamine, both pursuant to s 603(7) of the Criminal Code 2002 (ACT).
The elements of the offence in s 603(7) of the Criminal Code are that: (a) the defendant trafficked in a substance by transporting, guarding, concealing or possessing the substance; (b) the defendant intended to traffic in the substance; (c) the substance was a controlled drug; (d) the defendant was reckless as to whether the substance was a controlled drug; and (e) when the defendant trafficked in the controlled drug, the defendant had an intention of selling some or all of the substance, or a belief that someone else intended to do so.
In relation to both charges, the Prosecution contended that the act of trafficking the drugs was the Appellant transporting them.
The GHB found in the Appellant’s possession was a “trafficable” quantity and thus the presumption in s 604 of the Criminal Code applies such that, where it is proved that he “transported a trafficable quantity of a controlled drug … it is presumed, unless the contrary is proved, that [he] had the intention or belief about the sale of the drug required for the offence”.
The Prosecution relied on statutory alternative charges of possession of a drug of dependence (in relation to the methylamphetamine) and possession of a prohibited substance (in relation to the GHB), contrary to ss 169 and 171 of the Drugs of Dependence Act 1989 (ACT) respectively.
In relation to the cash, the Appellant was charged with dealing with property that was the proceeds of crime, contrary to s 114C of the Crimes Act 1900 (ACT).

Consistent with the Defence concessions, there was no challenge to the Prosecution evidence.
The Appellant gave evidence. He said that he was a mechanic by trade and owned a house that was subject to a mortgage. At the time he was arrested, he was living in a share house with two other people. He had lived there for a few months.
He said that, for about seven years, he had been an extremely heavy user of GHB, to the extent that he was using over 30 mL each day, drinking it in liquid form every two to three hours, including during sleeping hours. He said each dose he took was about 2 to 3 mL. He said that the dose he took on each occasion had to be exactly measured, first, to meet his need for the drug and, second, because if he took more than 2 to 3 mL, it would affect his work performance and it would become obvious to work colleagues that he was using drugs. He used the scales to measure each dose to ensure its accuracy.
In order to take the drugs and avoid the scrutiny of his coworkers, the Appellant said that he portioned the drug into fish-shaped plastic containers (of the kind that usually contain soy sauce). Each container held 2.5 to 3 mL. By using these containers, the Appellant said he could openly drink the drug from the container without arousing suspicions.
The Appellant said that, at the same time, he was smoking methylamphetamine, using up to half a gram to a gram a day.
As to the glass vials found in his backpack, the Appellant said that each pipe contained two points of methylamphetamine and each pipe contained a “different meth”. He said different types of methylamphetamine had different tastes and some were better than others; he said he was something of a “connoisseur”. As to the pipes looking clean, he said this was because he was “fastidious” about their cleanliness and the packaging around them was to enable him to transport them safely. As with the GHB, the Appellant said that he measured how much methylamphetamine was in each pipe on the scales to ensure that he was not exceeding the amount he wanted to use and that he could get through the next period (presumably until he purchased some more).
The Appellant said he also used the scales to ensure that he was not being “ripped off” when he purchased the drugs.
Unlike his use of GHB, the Appellant said that it was difficult to smoke methylamphetamine at work so he used it minimally there, but his use was otherwise “quite heavy”.
As to the clip seal bags, he said that these bags deteriorated after being opened many times, so he put doses for himself in the bags to take on holiday.
In explanation as to why he was carrying that quantity of GHB and methylamphetamine, the Appellant said that he was planning on leaving work that day and staying with his mother to travel with her to Huskisson for a family Christmas holiday the next day. He packed the drugs for use over that period and said that it can be difficult to obtain drugs over the holiday period.
The Appellant said that the cash found in his backpack was the sale proceeds of a motorcycle that he had repaired, restored and sold to a friend, Ben Hudson. The Appellant said Mr Hudson had originally owned the motorcycle and crashed it to the point that it was unusable. The Appellant said he purchased it from his friend for $2,950 in 2020, repaired and restored it, and Mr Hudson then bought it back from him in August 2022 for $10,000 plus the cost of parts and work for the restoration.
Neither the change of ownership of the motorcycle when it was purchased from Mr Hudson nor the change when it was sold back to him was registered.
The Appellant said he had the cash in his possession because he was going away for Christmas and did not want to leave it in his house for fear of it being stolen. He had planned on spending that money on his family over Christmas, including buying presents for the children.
On 31 December 2024, the Appellant presented himself to Canberra Hospital saying that he wanted help to withdraw from GHB use. He was admitted but discharged himself against medical advice on 2 January 2025. The Appellant returned to Canberra Hospital and was discharged on 19 January 2025 after one day. The discharge document noted that the Appellant declined a referral to a drug and alcohol counselling service.
The Appellant was cross-examined. He agreed that he was carrying eight glass pipes containing methylamphetamine and also had five bags of methylamphetamine. He denied that he had the pipes in his bag for distribution while selling the methylamphetamine.
The Appellant was cross-examined on a pre-sentence report dated April 2023, which had been prepared for another matter. The use of the document was the subject of objection by the Defence and allowed by the Magistrate. Its use in the proceedings constitutes the second ground of appeal.
In that report, the Appellant is recorded as saying that cocaine and methylamphetamine were his drugs of choice. He agreed that was what he told the author of the report. He further agreed that there was no mention of his seven years of GHB use, or any use of GHB. It was suggested to the Appellant that his evidence of being a heavy user of GHB over years was a lie.
The Appellant said that he did not tell the author of the report about his GHB addiction because he had not then “accepted, or acknowledged, or even verbalised” the seriousness of his addiction.
The Appellant agreed that, in July 2024, he was served with a summons for the hearing of the charges, including trafficking in GHB. It was suggested to him, and he denied, that his presentations to Canberra Hospital were part of a plan or a concoction to show a GHB addiction at a time when he understood that charges had been laid against him.
The Appellant said that he had five fish-shaped containers in his backpack, of which three contained GHB. He said that they were for use on the day he was arrested. The Appellant agreed that he had not filled sufficient bottles to allow him to dose himself surreptitiously every two hours during the work day and said that he would have had to take the larger bottle into the toilet and administer the last small dose to himself.
When it was suggested to him that failing to prepack sufficient fish-shaped containers for the whole day defeated his desire to use the GHB unnoticed, the Appellant suggested that he was “slightly unorganised” on that day.
Moving then to the reason he had the larger quantities of GHB in the bag, the Appellant said he was going away for between seven and 10 days and these amounts were for his use over that period. Again, he agreed that there was an insufficient quantity of GHB in the bag to provide him with his asserted two-hourly use over that period but said that he had time to buy more drugs before the holiday commenced.
In relation to the money found in his possession, the Appellant maintained that it was payment in cash from Mr Hudson for the sale of the motorcycle together with some savings. He had put it into his bag because he was not intending to return to his share accommodation after work on that day, he did not want to leave it at the house, and he intended to use it over Christmas for family expenses.
Finally, it was put to the Appellant that the reason he did not stop for police when asked was because he knew he had drugs in his bag and knew they were illegal. He denied that and said he did not stop because he was late for work.
The Appellant was re-examined and said, in further explanation of why he did not mention his use of GHB to the author of the pre-sentence report, that at the time of the pre-sentence report, he had not acknowledged or accepted his addiction to GHB and had completed 15 sessions of drug counselling but they had not assisted him to stop using.
Ben Hudson, a friend of the Appellant, also gave evidence. In line with the Appellant’s evidence, he said that he had wrecked his motorcycle shortly after he purchased it and it was unregistered and unusable. He said he sold it to the Appellant for $2,850 or $2,950 and, after it was repaired and restored, repurchased it for about $11,500 to $12,000, which included the costs of parts used in the restoration.

The Prosecution submitted that the GHB in the Appellant’s possession was of a trafficable quantity and, while the methylamphetamine was not at that level, the whole of the evidence would satisfy the court that the Appellant had it in his possession for supply.
The Prosecution submitted that the quantity of the drugs found in the Appellant’s possession, the scales, the resealable bags, the individual bottles, the cash and the fact that the Appellant did not stop when asked by police would satisfy the court beyond reasonable doubt that the Appellant did not have the methylamphetamine in his possession for personal use and had not rebutted the presumption in relation to the GHB.
The Prosecution submitted that the court would reject the Appellant’s account of the circumstances. It was argued that the Appellant’s account of having been a heavy user of GHB for the previous seven years was not to be accepted, noting that it was not mentioned to the author of the pre-sentence report prepared shortly after the arrest and search of the Appellant. Next, it was submitted that the Appellant’s account of the level of his use did not equate with the quantity of drugs found in his bag. He did not have enough drugs to last him over the Christmas period, which is why he said he had the drugs with him. Nor did he have enough GHB in the fish-shaped containers to last him the day, on his account of how much he used. The Prosecution argued that the Appellant’s presentation to hospital ostensibly for withdrawal from GHB was not to be accepted given his failure to mention GHB to the author of the pre-sentence report. Finally, it was argued that the Appellant not declaring the cash he received for repair work from Mr Hudson and others to the Australian Taxation Office further impugned his credit.
While the Prosecution conceded that Mr Hudson’s evidence had not advanced the Prosecution’s case, it was argued that the surrounding circumstances persuasively showed that the cash came not from the sale of the motorcycle but from drug sales.
For the Defence, it was argued that the failure of the Appellant to mention his GHB addiction to the author of the pre-sentence report was not a significant matter going to credit. It was submitted that, when he spoke to the author, he was not under oath and there was no suggestion that he had been asked about whether he used GHB. The Defence pointed to the Appellant’s evidence that he had not acknowledged the depth of his addiction to GHB at that time. The Defence also pointed to the two hospital admission notes to support the Appellant’s evidence that he had an addiction to GHB.
It was further argued that the fact that there was apparently insufficient GHB in the fish-shaped containers to last the Appellant through the day did not affect his credibility because he said, if he did not have enough measured out, he would go to the bathroom and use there.
It was submitted that failure to declare cash income did not go to the Appellant’s credit.
The Defence argued that, because the Appellant gave evidence, the court must direct itself in terms of Liberato v The Queen [1985] HCA 66; 159 CLR 507. It was submitted that, even if the court had some doubts about the credibility of the Appellant, it would not reject his account out of hand but, if the court considered that the Appellant’s evidence might be true, he would be entitled to an acquittal.
The Defence argued that, while the Prosecution relied on flight as evidence of consciousness of guilt, the court would accept the Appellant’s evidence that he did not stop because he was late for work and did not want to lose the job.
The Defence argued that the court would accept the evidence of Mr Hudson and thus not be able to find beyond reasonable doubt that the cash in the Appellant’s possession was the proceeds of crime. It was submitted that even if the court found that the Appellant had trafficked in drugs, it would not necessarily lead to the conclusion that the cash was the proceeds of crime.

The Magistrate gave herself legal directions as to the burden and standard of proof required before there could be a finding of guilt. Her Honour directed herself that the trafficable quantity of GHB placed an onus on the Appellant to prove on the balance of probabilities that the GHB in his possession was for personal use. Her Honour directed herself as to fact finding and the drawing of inferences. As the Appellant gave evidence, her Honour directed herself as to Liberato v The Queen. As the Prosecution case was a circumstantial one, her Honour directed herself accordingly. She reminded herself of the need to give each charge separate consideration. Finally, her Honour gave herself the usual directions as to the Prosecution submission of flight as consciousness of guilt.
After considering the elements of the offences charged, her Honour turned to the evidence and the credibility of the Appellant and found that he was not a credible witness. Her Honour pointed to the contradiction between the Appellant’s evidence of his long-standing and severe GHB addiction and his failure to mention that to the author of the pre-sentence report in April 2023.
Her Honour did not accept the Appellant’s explanation that he did not disclose his GHB addiction to the author of the pre-sentence report because he was “ashamed”, noting that he openly told the author that he used cocaine and methylamphetamine.
Her Honour observed that the court could not see any difference between cocaine and methylamphetamine on one hand, and GHB on the other, which would lead the Appellant to feel ashamed of his use of GHB.
Her Honour noted that the Appellant had worked as a mechanic and lived in a share house during the period of his asserted addiction to GHB, which including waking up in the night to take more GHB. Her Honour said that this evidence did “not have the ring of truth to it”.
Her Honour pointed to the Appellant’s evidence as to his use of GHB and observed that the GHB in his backpack, which he said he was going to use on the day he was searched, was insufficient to meet his claimed usage. She observed that to go into the toilet to have the final dose would have to have been done secretly. She noted that as the Appellant had packed three containers of GHB, common sense would dictate that he would pack enough for the day.
In further explanation of her Honour’s rejection of the Appellant’s evidence, she noted that, based on his asserted level of use of GHB, he had not packed enough to get him through the upcoming family holiday and, according to his evidence, would have had to source a week’s worth of GHB on the day before he left for the holiday.
Her Honour found that the Appellant’s self-admissions to hospital were “self-serving” and observed that the timing of them was between him entering a plea of not guilty and the hearing. Her Honour said that the admission documents did not establish that he had an addiction to GHB.
Her Honour found that the Appellant’s failure to declare cash income he received for work done as a mechanic did not enhance his credibility.
Turning to the source of the cash, her Honour rejected the Appellant’s explanation. She said that, on his evidence of being a heavy drug user over seven years and working at the same time, including on the date on which he said he was paid by Mr Hudson for the motorcycle, it was not clear why he apparently used his wages to buy drugs (which are typically paid for in cash) and not the cash he said was paid to him by Mr Hudson. Her Honour said that the Appellant gave no explanation as to why he could not buy presents for his family using his wages, adding that “logically he would use his very neat bundle of $12,550 to buy illicit substance to fuel his addiction”.
Her Honour referred to the Appellant’s evidence that he had the cash with him because he did not trust his housemates and extrapolated that this would mean that he had been carrying around that cash for some months since it was paid to him by Mr Hudson.
Her Honour found that Mr Hudson’s evidence that he paid the Appellant $10,000 and that the payment was made shortly after Mr Hudson’s birthday in 2022 was likely to be true, though noted that his evidence about exactly how much he paid the Appellant was confusing.
However, her Honour rejected the Appellant’s evidence that the cash in his backpack was from the sale of the motorcycle and concluded that it was from the sale of drugs. She said it was implausible that the Appellant would use his mechanic’s wage to buy drugs and save the cash from Mr Hudson to spend on his family over Christmas, rather than using it to buy drugs.
Having rejected the Appellant’s evidence in explanation for his possession of the drugs and other items in his backpack, her Honour found beyond reasonable doubt that the Appellant had the GHB with the intention of trafficking it and that the Appellant had not rebutted the presumption in s 604. Her Honour took into account that the Appellant had small bottles of GHB, a larger quantity of the drug and electronic scales.
Her Honour did not accept the Appellant’s evidence that he had methylamphetamine in his bag for personal use nor did she accept that he needed the eight individually wrapped glass pipes for different “flavours” of methylamphetamine. She rejected his explanation as being implausible, especially given his evidence that he used different quantities of methylamphetamine at work and at home. She observed that there was no indication on the various pipes of what was in them. She considered that measuring out methylamphetamine at work would expose the Appellant to detection and his smoking of it at work would be difficult to conceal. Her Honour also rejected as implausible the Appellant’s explanation for having the scales. Her Honour considered that that it was much more likely that the Appellant used the scales to measure out quantities of drugs for sale to be placed in the small resealable bags.
Her Honour concluded beyond reasonable doubt that the Appellant intended to traffic in methylamphetamine and trafficked in the methylamphetamine with the intention of selling some or all of it. In so finding, her Honour referred to the scales, the eight clean glass pipes wrapped in bubble wrap, and the many empty small clip seal bags.
Her Honour also rejected the Appellant’s explanation for being in possession of the cash and concluded that the only rational explanation for having it was that it was the proceeds of his drug dealing. She therefore found that the cash was proceeds of crime.
Thus, the Appellant was convicted of all three charges.

This is an appeal brought pursuant to s 208(1)(b) of the Magistrates Court Act 1930 (ACT). The Court of Appeal has outlined the principles to be applied in such appeals in Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 at [13] and [18], where the Court said: 13. Where an appeal is by way of rehearing, generally an appellant may succeed only by demonstrating material error in the decision below, whether legal, factual or discretionary: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (Allesch) at [23]. This is noting that a court on a rehearing is to conduct a real review of the evidence given at first instance and the judge’s reasons for judgment and, while respecting any advantage that the primary judge enjoyed, should not shrink from giving effect to its own conclusion: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551, reinforced by the High Court in Lee v Lee [2019] HCA 28; 266 CLR 129 at [55]-[56]. … 18. Accordingly, an appellant may succeed in an appeal under s 214 of the [Magistrates Court Act] by demonstrating that the magistrate’s finding was unreasonable, but such a finding is not necessary for an appellant to succeed. Rather, it is sufficient for an appellant to demonstrate that there is a material legal, factual or discretionary error in the magistrate’s decision.
The Appellant’s submissions argue that, here, the Magistrate made no demeanour-based findings and thus the Prosecution’s submissions on the advantage of the Magistrate in seeing the Appellant give evidence should be approached with caution.
The fact finder’s advantage was expressed by McCallum CJ in Garay v The Queen (No 3) [2023] ACTCA 2 at [31]: 31. … The assessment of credibility involves more than a lawyerly analysis of the words on the page of a transcript. The advantage enjoyed by the tribunal of fact has myriad elements that can never be replicated in the sterile atmosphere of an appellate court. It is the difference between reading a play and seeing it performed. Full allowance cannot be made for the advantage of presiding over a trial without an honest reckoning of the extent to which observations can be made, tone and expression interpreted, apparent inconsistencies assessed, anomalies synthesised with other evidence, mistakes understood, misunderstandings resolved and judgments made as words are spoken by a witness.
As can be seen, the Chief Justice’s articulation of the extent of the advantage obtained by the tribunal of fact extends beyond the making of findings based on demeanour or findings based on a person’s presentation in court. I do not propose to adopt the narrow approach to the fact finder’s advantage argued in the Appellant’s submissions.
It is convenient to deal first with ground 2, namely the challenge to the Magistrate permitting cross-examination of the Appellant on a pre-sentence report prepared for another charge which arose out of the same circumstances but was not before the Magistrate.

In April 2023, the Appellant was interviewed for the purposes of a pre-sentence report for the court in relation to a charge of failing to stop when requested. This charge arose out of the same circumstances that led to the charges before the Magistrate but was not before her.
The Appellant was interviewed on 14 and 20 April 2023. The pre-sentence report notes: Mr Cole reported a history of polysubstance abuse, identifying cocaine and methamphetamine as his drugs of choice.
The Prosecution sought to cross-examine the Appellant on this passage. Objection was taken pursuant to s 104 of the Evidence Act 2011 (ACT).
Section 104 says: (1) This section applies only to credibility evidence in a criminal proceeding and applies in addition to section 103. (2) A defendant must not be cross-examined about a matter that is relevant to the assessment of the defendant's credibility, unless the court gives leave. (3) Despite subsection (2), leave is not required for cross-examination by the prosecutor about whether the defendant— (a) is biased or has a motive to be untruthful; or (b) is, or was, unable to be aware of or recall matters to which the defendant's evidence relates; or (c) has made a prior inconsistent statement. …
During the course of the argument, the Magistrate noted the definitions of “representation” and “prior inconsistent statement” contained in the Dictionary to the Evidence Act, noting that “representation” is defined to include “an express or implied representation (whether oral or in writing)” and “prior inconsistent statement” is defined as meaning “a previous representation that is inconsistent with evidence given by the witness”.
The Prosecution contended that leave was not required pursuant to s 104(3), as the content of the report was a prior inconsistent statement of the Appellant.
Counsel for the Defence argued before the Magistrate that the statement in the pre-sentence report was not a prior representation by the Appellant but was a prior representation of the author of the report.
It was submitted by the Prosecution that the report was written under topic headings and the relevant representation appeared under the topic of the Appellant’s use of illicit substances.
Her Honour rejected the Defence argument and permitted the cross-examination.
The Appellant’s submissions on the appeal contend that there is no way of understanding whether what was represented in the pre-sentence report was in fact what the Appellant said or whether it was the author’s summary of the interviews with the Appellant and the representation had been “qualified, altered or coloured” by later events.
In theory, any of those hypotheses may exist. However, her Honour was entitled to use her experience and accept, as she clearly did in ruling that leave was not required, that what appears in the report is an account of what the Appellant said to the author. It is relevant here to note that her Honour was told that the report contained information under particular topics and the one in contention dealt with the Appellant’s use of illicit drugs.
No error has been established and this ground must be dismissed.

The Appellant said that he was living in a share house in Franklin, a suburb of Canberra, with two other people. He had been living there a short while before he was arrested. He said he had intended to stay with his mother overnight on 23 December 2022 and then travel with her to Huskisson the next day for a Christmas holiday.
The Magistrate did not accept the Appellant’s evidence that he would stay at his mother’s house before leaving for the holiday. She observed that he did not have in his bag sufficient clothing, toiletries or other personal items that one would expect for a long holiday and, as the Appellant said he had been estranged from his family, it would be unlikely that he would have had those items at his mother’s house.
The Appellant’s evidence was that he intended to go to work and then directly to his mother’s house for the night before leaving for the holiday. He said that his backpack contained clothes he needed for work. Items such as toiletries were not in the backpack.
The Appellant mentioned that he had “been estranged” from his family in the context of giving evidence that he was taking the cash with him to spend with his family.
If the Appellant was intending to go away for a period over Christmas, he was certainly not equipped for it when he was arrested. However, the evidence before her Honour did not support her further finding that he was unlikely to have left travel items at his mother’s house. There was no evidence that he was estranged from his mother, but his “family”. To the extent that this finding informed her rejection of his evidence, it should be put to one side. Failure to mention GHB in the pre-sentence report
The Appellant’s submissions on the appeal point to the Magistrate’s rejection of the Appellant’s explanation as to why he did not mention his use of GHB to the pre-sentence report author, and in particular his reference to being “ashamed” of his use. The submissions refer to her Honour’s conclusion that she could not see why the Appellant would be ashamed of his use of GHB when he readily agreed to using cocaine and methylamphetamine. It was argued that the finding carries with it an assumption by her Honour that the use of all drugs carries the same degree of shame for the user and, in particular, it was noted that the Appellant was not asked why he felt ashamed of his GHB use.
The Appellant was not challenged on his assertion that he was “ashamed” of his GHB use. Neither was he asked why he considered GHB to be shameful as distinct from the other drugs he said he used.
While her Honour might not have been able to discern any difference as between the three drugs the Appellant mentioned using (GHB, methylamphetamine and cocaine), her rejection of his explanation on this basis was unsupported by the evidence.
However, when looked at in the light of other evidence before the Magistrate which informed her conclusions, the Appellant’s failure to mention his significant addiction to GHB when speaking to the author of the pre-sentence report in April 2023 attains significant force. For example, in the hearing before the Magistrate, when explaining the level of his addiction, the Appellant said that he had received assistance with his GHB addiction “multiple times”. The discharge summary from his self-admission to Canberra Hospital in December 2024 recorded his comment that he had made “No real attempts to withdraw previously”. The discharge summary for the second self-admission noted that the Appellant refused a referral to outpatient services for drug and alcohol counselling. He is recorded as saying that he had accidentally overdosed on cocaine twice in the past, which is consistent with him telling the author of the pre-sentence report that cocaine was one of his “drugs of choice”.
Contrary to his evidence of battling an addiction to GHB and seeking help, the hospital discharge summaries paint a different picture and support her Honour’s conclusion that his presentations to hospital were self-serving.
Setting aside the Magistrate’s consideration of whether or not addiction to GHB attracts a different level of shame from addiction to other drugs, the evidence supports her conclusion that the reason that the Appellant did not mention being a user of GHB to the pre-sentence report author was because he was not one. Whether the Appellant had sufficient drugs with him to meet his asserted daily needs and the holiday period
The Magistrate found that the Appellant’s evidence about the level of his GHB use, and the frequency and the way in which he drank the drug at work, was inconsistent with him having admittedly insufficient filled fish-shaped containers to last him through the work day.
The Appellant’s evidence was that his GHB use was such that he used it every two to three hours, day and night. He packed it into the fish-shaped containers so he could drink it without raising the suspicions of his coworkers. He said he was careful to have a perfectly packaged amount and that he used the scales in his backpack to ensure that he had a dose sufficient to both satisfy his addiction and not affect his ability to work. In fact, he said that his job was important to him, and he had been warned about being late.
In cross-examination, the Appellant said that on the day he was arrested, he had prepackaged his GHB for the day and was on his way to work. He thought he had packed five fish-shaped containers, which he said, taking the drug every two hours, would get him through the work day. However, he agreed that there were only three fish-shaped containers with GHB in them in his backpack (although there were five containers in his bag, two were empty). The Appellant agreed then that he would not have had enough GHB in fish-shaped containers for the day. He said that, in that event, he would have had to take one of the pipettes into the toilet and “administer the small amount, to finalise the day”. The Appellant said that he was “obviously … slightly unorganised, marginally”.
While the Appellant said that he had been warned about being late to work, he did not say that his drug taking had affected his functioning, as his submissions on appeal suggest. He was at pains to say that he needed the scales to measure a precise amount of GHB so as not to be impaired.
The Appellant’s submissions argue that his evidence was capable of supporting the inference that he could refill one of the fish-shaped containers. It is unnecessary to resort to inference; the Appellant said he would go to the toilet and administer a small dose. He did not say he would weigh it out and refill a fish-shaped container.
Her Honour found that, had the Appellant prepared the GHB for his use during the day by putting it into the fish-shaped containers to get him through his shift and be able to use the drugs surreptitiously, he would have prepacked all the necessary bottles for the day to avoid detection.
Her Honour further took into account the discrepancy between how much GHB the Appellant told the hospital he used and his evidence before her, noting that, accepting how much GHB he told the hospital he used, the total amount of GHB in his backpack would not last 24 hours.
Her Honour’s rejection of the Appellant’s evidence that the GHB was for his use on the day of his arrest and on his holiday was clearly open to her.
Next, the Appellant argued that the Magistrate erred in rejecting the Appellant’s explanation for the large amount of GHB in his backpack, being that he was going away on holidays and had laid in supplies to use in that time.
The appellant agreed the holiday would be for seven to 10 days and that he did not have enough GHB to last that time. The Appellant then said that the drugs in his bag were for that day and he had time to buy more for the holiday. It must be observed that the Appellant volunteered that the quantity of GHB in his bag was for the holiday, not for that particular day, it was only on being cross-examined that he said it was for that day.
The Magistrate said that on the Appellant’s evidence of the level and frequency of his use of GHB, he had one and a half to two and a half days’ supply for his seven to 10-day holiday. Her Honour rejected this evidence as not being truthful.
It was open to the Magistrate to find that the Appellant’s evidence in this regard was unpersuasive and to reject it.

The Appellant’s submissions contend that the Magistrate did not give proper consideration to the discharge summaries and regarded them as “peripheral” to the issues to be determined. This submission is founded on comments by her Honour about Exhibit 12, the discharge summary dated 19 January 2025. The submission quotes some of what was said by the Magistrate during the Defence submissions: … I don’t know why I have such trouble with Exhibit 12. It’s been tendered without any restrictions, for example, under section 136, or section 60 of the Evidence Act.
However, her Honour continued: He was admitted on 18 January 2025, that’s very plain from the record, and he was discharged on 19 January 2025, but he’s given evidence that he was in for definitely 48 hours, so two days before admission - sorry two days before discharge - and everyone seems so confused …
Ms Wilson for the Appellant suggested to the Magistrate that the confusion was because there was no clear date of admission or discharge and her Honour pointed to the dates on the document.
There followed some discussion about the cross-examination of the Appellant by counsel for the Prosecution suggesting that he was in hospital for two days.
In any event, the transcript of her Honour’s comments about Exhibit 12 when read as a whole make it clear that she gave close consideration to the discharge summaries and brought the evident mistake to the parties’ attention.
Next, it was submitted that her Honour based her rejection of the Appellant’s evidence that he was addicted to GHB on two bases: his evidence of being admitted to the Canberra Hospital for two days when the documents show it was for one day and the discrepancy in the drug use history given by the Appellant on his admission. That submission cannot be accepted.
A reading of her Honour’s reasons demonstrates that her rejection of the Appellant’s evidence as being not credible rested on a number of bases, not only the two mentioned in the submission. Indeed, her Honour indicated during the exchange just referred to that the confusion over the length of admission would not “of itself” be a basis for conviction.
The inconsistencies in the Appellant’s account of his drug use when compared with the discharge summaries was taken into account by her Honour. She noted that, in December 2024, the Appellant told the hospital that he was using 4 mL every 2 hours and she extrapolated that figure to show that he would then use 48 mL every 24 hours. Her Honour took this into account in rejecting the Appellant’s evidence that the GHB in his backpack was for his daily use.
It was argued that the inconsistency and the extrapolated figure were not put to the Appellant. The documents were tendered on the Appellant’s behalf and it was open to his counsel to address or seek to clarify anything in those documents. Her Honour’s calculation based on the Appellant’s account to the hospital, the inconsistency in his account of how much he used and the quantity of GHB he had in his possession was a proper matter for the Magistrate to take into account in assessing his credibility.

Cole v Murnane

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