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Mapu v Police [2023] WSCA 4 (18 July 2023)

IN THE COURT OF APPEAL OF SAMOA
Mapu v Police [2023] WSCA 4 (18 July 2023)

CA 10/22

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

DARYL MAPU, of Tanumalala Prison, Tanumalala, inmate

Appellant

A N D:

P O L I C E

Respondent

Coram: Honourable Justice Harrison
Honourable Justice Young
Honourable Justice Roma

Counsel: L. Su’a-Mailo for the Appellant
I. Atoa for the Respondent

Hearing: 12 July 2023

Judgment: 18 July 2023

JUDGMENT OF THE COURT

The appeal

1. Following a 9 day trial in the Supreme Court before Tuala-Warren J, Daryl Mapu (the appellant) was found guilty of:
   • (a) Possession of methamphetamine (s 7(1), Narcotics Act 1977 and s 33, Crimes Act 2013);
   • (b) Possession of utensils (being the two glass pipes) for the purpose of committing an offence against the Narcotics Act (s 13(b), Narcotics Act and s 33, Crimes Act);
   • (c) Possession of unlawful weapons, namely four pistols (s 12(1), (2) and (3), Arms Ordinance 1960 and s 33, Crimes Act);
   • (d) Possession of unregistered firearms, a shotgun and a .22 semi-automatic rifle (s 12(3), Arms Ordinance and s 33, Crimes Act)
   • (e) Possession of unlawful ammunition, namely 23 rounds of 9 mm ammunition (s 12(3), Arms Ordinance and s 33 Crimes Act); and
   • (f) Possession of the other ammunition (four rounds of .22 ammunition) without a permit (s 7(1)(4), Arms Ordinance and s 33, Crimes Act).

His co-defendant, Marie Fanueli, who had faced the same charges was acquitted. The appellant was later sentenced to 18 months imprisonment.

2. He now appeals against conviction

The factual background

3. Just before 7.00pm on 28 December 2021, police officers executed a search warrant at the Nuu Fou house of Daryl Mapu, the appellant. The main portion of the house consists of a single-story building in which the appellant, his wife and two children lived. To one side is a garage over which there is an area consisting of a bedroom (which has a washing-up sink), a bathroom (with a shower/bath and toilet) and an open balcony. The property belongs to the appellant and his wife.
4. Members of the police party met the appellant outside the house. He was wearing cargo shorts but no top. He and some of the police officers went inside the house. A police officer went up the stairs to the bedroom above the garage. Marie Fanueli was there. On the bed was a pistol and certain other apparently associated items. The police officer escorted Ms Fanueli downstairs.
5. The appellant was advised of the warrant and asked about a 9 mm pistol that the police officers believed was at the house. The appellant took police officers to the bedroom above the garage. Ms Fanueli, accompanied by a female officer, also went to the bedroom
6. The firearm on the bed was a 9 mm Browning semi-automatic pistol. It was cocked. Also on the bed were a brown bag (into which the pistol might have fitted), two magazines for the pistol, one containing 8 and the other 11 rounds, and some plastic bags. In the bags were 4 additional rounds of 9 mm ammunition, four rounds of .22 ammunition and one spent .357 calibre round (i.e. the casing of that round). One of the police officers asked the appellant why the pistol was cocked. His response was that it had been bought like that. Examination at the scene revealed that the pistol was not loaded.
7. Also on the bed was a red and white shirt which the appellant put on.
8. What appeared to be the butt of a firearm could be seen protruding from under the mattress. This was apparently pointed out to the police officers by the appellant. The mattress was lifted and this revealed five firearms, three pistols (a .22 semi-automatic, a .22 revolver and a .357 magnum revolver), a 12 gauge shotgun and a .22 semi-automatic rifle.
9. When the police officers searched the pockets of the shorts the appellant was wearing, they found his wallet and a bag containing five plastic bags of a white substance. Three of these were sealed and the other two had been opened. When asked what the substance was, the appellant replied “aisa” (a transliteration of “ice”). In response to a further question as what he meant by that, he said methamphetamine.
10. In the room was a reasonably cluttered coffee table. Two glass pipes, one directly on the table and the other sitting in a box, were found on that table, along with scales, a cut straw, a plastic spoon, two empty plastic bags, a number of lighters, the TV remote and a telephone. The telephone belonged to Ms Fanueli. Further search of the room revealed a number of other plastic bags.
11. Beyond his comment in relation to the 9 mm Browning being cocked and as to the nature of the white material in the pocket of his shorts, the appellant offered no explanation for the material found by the police. And when interviewed later at the Police Station he likewise gave no explanation, with his only comment of moment being to the effect that he would like Ms Fanueli not to be charged.
12. Subsequent analysis of what the prosecution maintained was the substance in the bags revealed that it was methamphetamine and methamphetamine was also located in the glass pipes.
13. When he appeared in Court following his arrest, the appellant was remanded in custody. He remained in custody until 25 February 2022 when he was released on bail. The trigger for his release was an affidavit by Pelepesite Faavae to the effect that the firearms, methamphetamine and associated items found at the house belonged to him as did the shorts that the appellant had been wearing when the police officers arrived on 28 December.

The trial before Tuala-Warren J

14. The pistols were unlawful weapons and the 9 mm ammunition was likewise unlawful. The other firearms were unregistered and there was no permit authorising possession of the .22 rounds. So if the appellant was in possession of the pistols, other firearms and ammunition, he was guilty of the offences alleged in relation to them. Similar considerations applied in relation to the charges associated with the bagged methamphetamine and pipes. If the appellant was in possession of those items, he was guilty of the associated charges.
15. Relevant to the charges in relation to the firearms and ammunition is s 19 of the Arms Ordinance 1960 which provides:
    • For the purposes of this Ordinance, a person in occupation of any land or building on which any firearms, ammunition, or explosives are found is, though not to the exclusion of the liability of any other person, taken to be in possession of those arms, ammunition, or explosives, unless the person proves that they were in the possession of some other person or satisfies the Court that he or she had no reasonable grounds for believing that they were on such land or building.
16. Given that the material just mentioned was located in a bedroom in the appellant’s house and, in the case of the bagged methamphetamine, in a pocket of the shorts he was wearing, the prosecution case against the appellant might be thought to have been reasonably strong. It was strengthened by his comments in relation to why the pistol was cocked and as to the material in his pocket being methamphetamine. The case against Ms Fanueli was weaker as she was a guest in the house at the time the police officers arrived and the case against her rested largely on her presence in the bedroom when the relevant items were located. As it turned out, the Judge concluded that it would not be safe to infer her guilt from the limited evidence that had been offered against her.
17. The defence offered by the appellant was reasonably elaborate and supported by his evidence and that of Pelepesite.
18. The appellant was the Deputy Commissioner of Elections. He confirmed that he owned the house at Nuu that was the subject of the police raid on 28 December 2021 and that he lived there with his wife and two children in the single-story section of the house.
19. His evidence in relation the charges against him was along the following lines.
20. Pelepesite was an acquaintance. Between October and December 2021, he had used the bedroom above the garage. Sometimes this was to sleep and eat although Pelepesite often slept elsewhere. He would also come during the day. Pelepesite provided assistance to the appellant with mechanical work on his cars and carried out other odd jobs, including shopping. There was only one key for the upstairs bedroom and he gave that key to Pelepesite. Any time the appellant, or any other member of his family, wished to use the room, they would ask Pelepesite if they could and would get the key from him to do so. The appellant’s general position was thus that he did not exercise control over the bedroom.
21. On 28 December the appellant’s wife and children were not at the house. He picked up his co-defendant, Ms Fanueli, at around 4 to 5 pm. He then rang Pelepesite to ask him if they could use the room as they had on two earlier occasions. As this suggests, he and Ms Fanueli were having an affair. Pelepesite agreed and he and Ms Fanueli then went to Nuu. They arrived between 5 and 6 pm. Pelepesite was there. The appellant saw the Browning pistol on the bed and two magazines beside it. He asked Pelepesite why it was cocked. Pelepesite said that Browning pistol was like that when it was bought. The appellant told Pelepesite to remove the pistol from the house. The appellant had a shower. When he finished, he left his clothes in the bathroom and returned to the bedroom wearing a towel. He placed that towel on a speaker in the room. Around this time Pelepesite left but did not take the pistol and associated items with him. On the basis of the times the appellant gave in his evidence, the police arrived 60-90 minutes after Pelepesite left. In his evidence in chief the appellant did not explain how he and Ms Fanueli occupied that time. In response to questions in cross-examination, the appellant said that (a) he had no clothes on; (b) he and Ms Fanueli did not use the bed; (c) they sat on chairs and (d) they watched TV. As Ms Fanueli wanted something to eat, the appellant rang Pelepesite and asked him to buy food and bring it to the house.
22. Soon after his request of Pelepesite for food, the appellant heard noise downstairs. Thinking it was Pelepesite returning with the food, he went downstairs. Before he did so, he put on shorts that were on the bed. Because he expected to reimburse Pelepesite for the cost of the food, he put his wallet in a pocket in the shorts. The shorts he put on belonged to Pelepesite. He did not put on his own clothes (including a lavalava) because they were in the bathroom and he did not have time to do so.
23. At the front of the property the appellant met not Pelepesite but rather members of the police search party. His account of the events that followed broadly, although not exactly, the evidence of the police officers which we have summarised at [4] – [11]. He did, however, provide some explanations for his actions:
    • (a) He had acknowledged to the police officers that the plastic bags found in the shorts he was wearing contained methamphetamine because he knew that Pelepesite used methamphetamine. But, until the plastic bags were discovered, he had not been aware that they were in the shorts he was wearing.
    • (b) He had not noticed what was on the table, that is most particularly the two pipes but presumably also the scales, straw, spoon and lighters.
    • (c) He had not been aware of the firearms under the mattress until he noticed the butt of one of them protruding under the mattress during the police search.
    • (d) His explanation for saying that the pistol had been cocked when bought is because this is what Pelepesite had told him.
24. The appellant acknowledged that from sometime in late January 2022, Pelepesite was in custody having been arrested in relation to unrelated offending and that they shared (along with others) the same cell for around three weeks.
25. In a car belonging to the appellant that was in the garage, some clothes were located. The appellant said that those clothes belonged to Pelepesite. However none of the evidence at trial pointed in a tangible way to anyone living above the garage. For instance, photographs taken, and videos recorded, at the time show no pillows or sheets on the bed. No other clothes were found in the bedroom or depicted in the video or photographs save perhaps for what may be a lavalava over a chair.
26. Pelepesite gave evidence along generally the same lines as the appellant. He had used the area above the garage and had the only key to it for around three months that is from October to 28 December 2021. The firearms, methamphetamine and associated items were all his. So too were the shorts the appellant was wearing when the police officers arrived. He said that prior to contact with the appellant on 28 December 2021 he had been wearing shorts and a shirt which he took off to have a shower. He left the shorts and shirt on the bed and, after his shower and put on a lavalava that he was wearing when the appellant and Ms Fanueli arrived. He put their time of arrival at 6.00pm or just after and he said that he left around 6.30pm. Shortly afterwards, the appellant rang and asked him to buy food, which he did and then drove back towards the house. As he was approaching the house, he saw police vehicles. He tried to call the appellant but he did not respond. He therefore drove off.
27. Pelepesite had said that he had acquired the Browning semi-automatic pistol a few days earlier and brought it to the house only on 28 December 2021. It was still on the bed when the appellant and Ms Fanueli arrived as he had not had time to conceal it. He was told by the appellant to take the pistol away. He did not do so for reasons that seem to have involved a concern as to whether the pistol was loaded and might go off. His intention, so he said, was to check the pistol when he came back to the house after the appellant and Ms Fanueli had finished with the room, and then take it away. The firearms under the mattress had been in the bedroom for the whole time he had used the room, that is, from October 2021. On his evidence there was no discussion between him and the appellant about these firearms either on 28 December or earlier. His evidence as to the identities of the people who supplied the firearms was very vague.
28. Pelepesite’s evidence at trial correlated exactly to that of the defendant in a number of respects. In particular he backed up the reason given by the appellant for what he said to the police as to why the Browning pistol was cocked, the appellant’s claim not to have owned the shorts he was found wearing and the appellant’s explanation as to why he had his wallet in those shorts. In other respects, especially as to timing, the correlation was not so close. As well, and importantly, Pelepesite’s evidence at trial differed in one significant respect from his affidavit sworn in February 2022 in support of the appellant’s bail application. In that affidavit he said that as he was driving away from the house, he could see police cars arriving. We will come back to the significance of this later.
29. As we have noted, a chain of evidence argument was advanced in relation to the methamphetamine samples that were analysed. It is common ground that the material that was found at the house was taken back to the police station. The prosecution’s position is the bags of methamphetamine were placed in the office of Superintendent Col Aumua, removed from that office the next day and placed in an exhibits room and stored there until sent for analysis. The alleged break in the chain of evidence is that the evidence was to the effect that the bags had been given to Superintendent Col Aumua’s room for the purpose of storing them there for the night but that the Superintendent did not give evidence. As well, counsel for the appellant, both at trial and before us noted some apparent anomalies in relation to the evidence and limited record-keeping. We will discuss all of this later.

Judgment of Tuala-Warren J

30. The Judge rejected the appellant’s chain of custody argument. She concluded that the relevant exhibits had been packed and placed in Superintendent Aumua’s office on the night of 28 December, uplifted from there the following day, and placed in the exhibits room. On 17 June 2022 they were taken from there to be analysed. And despite some anomalies, she was satisfied that the evidence of analysis was referable to what had been found in the appellant’s pockets.
31. In addressing the charges in relation to the methamphetamine and utensils, the Judge accepted that Pelepesite had obtained the methamphetamine and utensils. But, having reviewed the evidence adduced by the defence, she rejected the aspects of the evidence of the appellant and Pelepesite that related most directly to liability. This was for the following reasons:
    • (a) On 28 December, the appellant did not give any indication of the defence he was to proffer at trial. In particular he did not say that the shorts were not his.
    • (b) The defence only emerged after the appellant and Pelepesite had been sharing a cell while on remand and thus after ample opportunity for concoction.
    • (c) When asked what was in the plastic bags, the appellant was able to identify the contents accurately as methamphetamine, something he would not have been able to do if the shorts were not his.
    • (d) It was not particularly credible that the appellant would have put on another man’s shorts. There was a towel in the bedroom that he could have wrapped around himself.
    • (e) She did not accept that the appellant put the wallet in the shorts so that he could pay Pelepesite. She was not explicit as to her reasons as to this, but the conclusion was presumably influenced by the account given by Pelepesite in his affidavit not lining up with the explanation offered at trial for the appellant putting his wallet in what he claimed were Pelepesite’s shorts
32. The Judge accordingly found that the appellant had had custody and control of the methamphetamine and utensils. She also thought that his control in relation to the bedroom (associated with his ownership and relationship with Pelepesite) meant that in any event, he had sufficient ability to control (which she referred as potential to control) the methamphetamine and utensils to mean that he was in possession. By this we think she meant that if the drugs and utensils belonged to Pelepesite as he claimed, and the appellant was aware of their presence in the bedroom, he had the ability to determine what should happen to them and, by his actions or inaction, did so.
33. In dealing more directly with the utensils, the Judge noted that they, along with scales, lighters, a straw, a spoon and empty plastic bags were on a table that was in front of the chairs that the appellant claimed that he and Ms Fanueli were sitting on. Those items were there to be seen.
34. On the other charges the Judge accepted that the firearms and ammunition had been acquired by Pelepesite but concluded that the appellant and Pelepesite were in joint possession of them. In reaching this conclusion she was influenced by the following considerations:
    • (a) The appellant’s explanation for the Browning semi-automatic being cocked, namely that this was how it was when it was acquired.
    • (b) That there was at least one firearm under the mattress would have been obvious to anyone who was in room for an appreciable period of time, This is because the butt was protruding and was there to be seen. The appellant had been in the room for more than an hour and must have seen the butt.
    • (c) She did not accept the contention that the room was effectively off bounds to the appellant unless he had Pelepesite’s permission.
    • (d) She generally regarded the evidence of the appellant and Pelepesite to have been concocted.
35. For the reasons just given, she concluded that the appellant had not discharged the onus of proof placed on him by s 19 of the Arms Ordinance and, in any event, she was satisfied that he knew about the firearms and ammunition and exercised control over them.

The appeal

Preliminaries

36. For ease of discussion we propose to discuss the issues we address under the following headings:
    • (a) the legal components of the charges;
    • (b) the general plausibility of the defence;
    • (c) the rejection of the evidence of the appellant and Pelepesite on the critical issues in the case;
    • (d) the significance of appellant not disclosing on 28 December 2021 the defence he was to offer at trial; and
    • (e) evidence of chain of custody.

The legal components of the charges

37. The appellant was relevantly in possession of the items in issue in the case if (a) they were in his physical custody; (b) he was aware of that; and (c) he acted in a way that showed that he assented to being in control of them. We take this approach generally from R v Warner.^[1] The test is sometimes expressed in slightly different terms, but this formulation provides a useful basis for dealing with this case.
38. On the defence approach to the facts the appellant was not aware of any of the illicit items save for the Browning pistol, in relation to that pistol, he had demanded that Pelepesite remove it forthwith and, but for the police raid, Pelepesite would have done so that evening. On that view of the facts the appellant would not have been in possession of:
    • (a) the items other than the Browning pistol (and ammunition on the bed) as he was not aware that they were in the room; and
    • (b) the Browning pistol and ammunition because his demand for the pistol’s removal demonstrated that he was not seeking, or assenting to, control of it and, presumably, the associated ammunition.

However, if the appellant knew that the items were in the bedroom and was content for them to be there, he was at least in at least joint possession of them or, alternatively a party to Pelepesite’s possession of them. As this we note that the descriptions of the charges against the appellant referred to s 33 of the Crimes Act, which provides for party liability.

39. The Judge referred to the passage in Warner that we have noted and her approach the case was generally consistent with it. Indeed, she concluded:
    • [The appellant’s] intention to exercise possession of the methamphetamine can be inferred from his words and behaviour and all the surrounding circumstances .... Daryl was knowingly in control of the methamphetamine in circumstances which showed that he was assenting to be in control of it.
40. We note in passing that in relation to the firearms and ammunition, the appellant’s defence at trial engaged s 19 of the Arms Ordinance which we have earlier set out. He plainly could not show that he had no reasonable grounds for believing that the illicit items were not in the bedroom. So, to succeed he had to prove on the balance of probabilities that they were in the possession (which in this context must mean possession to the exclusion of him) of someone else, namely Pelepesite.

The general plausibility of the defence

41. On Pelepesite’s evidence, the five firearms found under the mattress had been in the room for some months, presumably concealed under the mattress. This is a room to which the appellant had, on prior occasions, taken Ms Fanueli for the purposes of sexual liaison. If the firearms were under the mattress, this would presumably have been apparent to them. Further, unless Pelepesite knew that the appellant would not object to the firearms being stored there, he was taking quite a risk in doing so. A respectable senior public official who discovered a cache of illicit firearms in his house could be expected to tell the police or, at the very least, terminate his association with Pelepesite. Similar considerations apply to the Browning semi-automatic and associated items on the bed and the utensils for methamphetamine use on the table. Why would Pelepesite leave these items in plain sight when he knew that the appellant and Ms Fanueli were coming around unless confident that the appellant would not object?
42. If the appellant had required Pelepesite to remove the Browning semi-automatic pistol, one would have expected that:
    • (a) This requirement would have prompted discussion about the firearms under the mattress. What would have been the point of taking only one out of six firearms away? But on the evidence of the appellant and Pelepesite, no such discussion took place. And
    • (b) The Browning at least, would have been removed straight away. The explanation offered by Pelepesite for not removing the firearm – apparently a concern on his part that, because it was cocked, it might go off by accident – is not very consistent with him having just brought it to the house in that state.
43. The explanation about the shorts is convoluted. It requires Pelepesite to have had a shower and left his shirt and shorts on the bed, the appellant to have had a shower and left his clothes in the bathroom and the urgency of meeting Pelepesite as he returned with the food resulting in the appellant neither putting on neither his own clothes that were in the bathroom nor using the towel in the bedroom but rather wearing the used shorts of another man.
44. The appellant’s explanation for his wallet being in the shorts – the need to reimburse Pelepesite – is not consistent with Pelepesite’s description in his affidavit of the police arriving as he was leaving. This account left no room for the alleged later request by the appellant for Pelepesite to buy food, him doing so and his intended return to the house with the food and seeking reimbursement – that is, the narrative offered for why the appellant put his wallet in the shorts.
45. On the appellant’s explanation, the events of that evening were extremely unfortunate from his point of view. Just as the police were arriving to search his house, he was unlucky enough put on another person’s shorts that, unbeknown to him, happened to have methamphetamine in a pocket. Such circumstances could be expected to produce a spontaneous response, along the lines that the shorts were not his. But all the appellant actually said was that the plastic bags contained methamphetamine. Furthermore, the essence of his narrative did not emerge until after he and Pelepesite had spent three weeks together sharing a cell with ample opportunity for concoction. We will come back a little later to discuss the legal significance of this.
46. The totality of the evidence is of moment. By way of example, that there was methamphetamine in his shorts is material to the plausibility of his denial of knowledge of the pipes. There is a similar interconnection between his awareness of the Browning pistol and the plausibility of his denial of the presence of the other firearms. More generally, when the evidence in relation to both the firearms and methamphetamine (including the utensils) is considered together, the strength of the prosecution case in respect of each aspect of his behaviour (that is as to drugs and firearms) is enhanced. This warrants a little explanation. It is not very likely that appellant would not have noticed the butt of the firearm under the mattress. And it also not very likely that he would not have seen the pipes (and other paraphernalia of drug use) on the table. It might be thought to be even more unlikely that he could miss both plain sight indications of criminal activity.

The rejection of the evidence of the appellant and Pelepesite on the critical issues in the case

47. The primary argument on behalf of the appellant is that the Judge was wrong in her assessment of the facts. The argument was basically that the Judge had not paid sufficient regard to the exculpatory evidence of the appellant and Pelepesite and gave inadequate reasons for rejecting the critical aspects of that evidence.
48. In advancing this argument, Ms Sua-Mailo dealt in considerable detail with the facts. As is necessarily the case with such an exercise she looked individually at the components of the circumstantial case that the prosecution relied. By way of illustration of this she went into some detail as to why the appellant, on his explanation, put on Pelepesite’s shorts: he was not wearing underpants; if he had gone to bathroom to get his own clothes (which included a lavalava) he would have had to put on underpants as well; and that would have taken extra time. A problem with this approach, particularly on appeal, is that while it is necessary to focus on the individual components of a circumstantial case, as Ms Su’a-Mailo did, it is the overall impact of those components, each considered with the others, that will be decisive. So, yes, it is not inconceivable that a man might put on another man’s used shorts if the circumstances required it, but material to the likelihood of this having happened in this case is also the appellant’s wallet being found in the shorts and, likewise, the plausibility (or otherwise) of his claim that he took his wallet because he was expecting to have to pay Pelepesite, a claim that is not consistent with the narrative given by Pelepesite in his affidavit.
49. Little point would be served by us further analysing the individual complaints in relation to the reasoning steps of the Judge because we are satisfied that on the evidence overall, the conclusions she reached were well open to her. Indeed it may be thought that given the inherent implausibility of the elaborate joint explanation proffered by the appellant and Pelepesite and the inconsistencies (most particularly in relation to Pelepesite’s affidavit), they were they only conclusions reasonably open to her.
50. What of the complaint that the Judge gave inadequate reasons for her conclusions, and particularly the rejection of the critical elements of the evidence of the appellant and Pelepesite?
51. We have set out the reasons she gave and are satisfied that they provided an adequate basis for the conclusions she reached. To the extent to which they rest on her assessment of the credibility of the witnesses, no tangible error has been identified in her approach. And to the large extent that they rely on her assessment of the circumstances that are material to the plausibility of the evidence, they are rational and logical.

Significance of appellant not disclosing on 28 December 2021 the defence he was to offer at trial

52. Section 23(1) and (2) of the Evidence Act 2015 provides:
    • (1) This section applies to a criminal proceeding in which it appears that the defendant failed:
      • (a) to answer a question put, or respond to a statement made, to the defendant in the course of investigative questioning before the trial; or
      • (b) to disclose a defence before trial.
    • (2) If subsection (1) applies:
      • (a) no person may invite the fact-finder to draw an inference that the defendant is guilty from a failure of the kind described in subsection (1); and
      • (b) if the proceeding is with assessors, the Judge must direct them that they may not draw that inference from a failure of that kind.
53. Section 23 is closely based on s 32 of the Evidence Act 2006 (NZ). The legislative history of s 32 is discussed in the New Zealand Court of Appeal judgment in Smith v R.^[2] That legislative history makes it clear that the purpose of s 32 was to leave in place the right of a prosecutor to challenge the credibility of evidence offered at trial by a defendant by reference to when the underlying explanation was first mentioned.
54. It will be noted that the section does not explicitly prevent a judge sitting alone from drawing an inference that the defendant is guilty, albeit that there may be scope for argument that such a prohibition is implicit.
55. A prosecutor wishing to challenge the credibility of a defendant’s evidence by reference to when the defendant’s explanation first surfaced should be both cautious and restrained, particularly if the trial is before assessors (in Samoa) or a jury (in New Zealand). Such challenge should be squarely addressed to the credibility of the defendant’s explanation and not develop into a line of argument along the lines that no explanation at the time justifies an inference of guilt. The more the challenge is repeated and the more rhetorical the language of the prosecutor, the greater the risk of an appellate court concluding that s 23 has been breached. The New Zealand cases, Smith v R to which we have referred, and McNaughton v R,^[3] illustrate this. Particular caution is appropriate if the non-disclosure the prosecutor wishes to rely on consists of the defendant’s response (or non-response) when first cautioned by a police officers.
56. Turning to the present case, it is obvious that the explanation given by the appellant at trial would have been more credible if he had, on the evening of 28 December 2021 outlined to the police, the substance of that explanation. Had he done so, there would have been no scope for the suggestion at trial that his defence was the result of after-the-fact collaboration with Pelepesite while they were sharing a prison cell. As well, a spontaneous reaction along those lines would have involved contemporaneous behaviour that was consistent with, and therefore supported the truth of the narrative he gave at trial. This means that the combination of what he did say (that the substance was methamphetamine) and did not say (that the shorts belonged to someone else) cast a substantial shadow over the credibility of his narrative.^[4]
57. We accept that by the time the methamphetamine had been found, the appellant had already been cautioned in relation to the firearms found on and under the mattress. But he had obviously not been cautioned in relation to drug offending. And, despite the caution in relation to the firearms, his response to the discovery of the bags and a question as to what they contained was an acknowledgment that it was methamphetamine. In those circumstances, the caution in relation to firearms offending did not make unfair the Judge’s reliance on the non-disclosure of his claims to have been (a) wearing Pelepesite’s shorts and (b) unaware of what was in the pocket.
58. More generally, we think that the approach of the Judge on this issue was consistent with the law. She did not draw an inference of guilt from non-disclosure of the defence; rather she treated it as bearing on the credibility of the narrative relied on by the appellant. In doing so, she did not infringe s 23 or any principles associated with the privilege against self-incrimination.

The chain of custody evidence

59. The appellant’s argument as to this rested in large measure on the absence of direct evidence from Superintendent Aumua to confirm that he had placed the relevant exhibits in his office. As to this, we accept that it appears that the Judge may have thought that the evidence showed directly that the exhibits had been placed in Superintendent Aumua’s office.
60. As to the other points relied on by Ms Su’a-Mailo:
    • (a) Only five plastic bags containing methamphetamine were found in the pockets of the shorts the appellant was wearing. But by the time the exhibits came to be looked at prior to samples being sent for analysis, there was a sixth and empty bag that was included. Why this should be so is unclear, albeit that empty plastic bags were found on 28 December 2021.
    • (b) At some stage the three formerly closed bags were opened. Why this was so was not explained.
    • (c) In a perfect world the contents of a sample bag as weighed without the bag during analysis would have been slightly less than the weight recorded for that bag and sample at the police station before the bag and contents were sent for analysis. But in the case of one of the samples, the same weight was recorded. Given that different scales were used and the limited weight that could be attributed to a small plastic bag, it is difficult to attribute significance to this.
    • (d) The recording of the handling of the exhibits was not complete.
61. It relation to this aspect of the case it is of fundamental importance to recognise that there are no special rules relating to chain of custody evidence. So if the Judge could be satisfied beyond reasonable doubt that the substance in the bags found in the pockets of the shorts was methamphetamine, imperfections in the way in which the exhibits were handled and some unexplained features of what happened are not controlling.
62. As to the over-night storage of the exhibits, the evidence was to the effect that the exhibits were given to Superintendent Aumua so that he could store them in his office and that they were retrieved from his office the next morning. On that evidence, the inevitable inference is that Superintendent Aumua must have placed them in his office as requested. Otherwise, why would the exhibits have been there to be picked up on the morning of 29 December 2021?
63. More generally, the argument advanced on behalf of the appellant is necessarily premised on the theory that it is reasonably possible that (a) the material in the bags found in the shorts was not methamphetamine and (b) some person tampered with the exhibits by inserting methamphetamine into the bags. Whether there is such a reasonable possibility is to be determined by reference to all the evidence in the case, including the admission by the defendant and Pelepesite’s confirmation that the bags did indeed contain methamphetamine. There being no reason why someone would insert methamphetamine into the bags and, given the appellant’ admission and Pelepesite’s evidence that the bags contained methamphetamine, it was inevitable that the Judge would conclude, as she did, that it had been proved beyond reasonable doubt that the bags in the shorts contained methamphetamine; this despite the issues raised by Ms Sua-Mailo.

Conclusion

64. The appeal is dismissed.
    

HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE YOUNG
HONOURABLE JUSTICE ROMA

^[1] R v Warner [1969] 2 AC 256 at 269 per Lord Morris of Borth-y-Gest
^[2] Smith v R [2014] 2 NZLR 421,
^[3] McNaughton v R [2014] 2 NZLR 457.
^[4] R v Foster [1955] NZPoliceLawRp 21; [1955] NZLR 1194 illustrates how this line of reasoning works.