The Queen v Briaturi and others [2008] NZCA 412 (9 October 2008)

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The Queen v Briaturi and others [2008] NZCA 412 (9 October 2008)

Last Updated: 15 October 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA661/07CA697/07CA693/07

[2008] NZCA 412

THE QUEEN

v

JUAN CARLOS PISSANO BRIATURIROBERTO MANUEL PISSANO BRIATURIHORACIO GABRIEL BANDERA-PINEYRO

Hearing: 24 September 2008

Court: O'Regan, Chisholm and Gendall JJ

Counsel: W C Pyke for Juan Carlos Pissano Briaturi
R P Chambers for Roberto Manuel Pissano Briaturi
B J Hesketh for Horacio Gabriel Bandera-Pineyro
M D Downs for Crown

Judgment: 9 October 2008 at 4 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1] The appellants were convicted after a jury trial in the High Court of two charges, namely conspiracy to import cocaine into New Zealand and conspiracy to export cocaine. The period to which the charges related was 26 July 2005 to 19 October 2005. The trial Judge, Harrison J, sentenced Juan Carlos Pissano Briaturi to imprisonment for nine years, Roberto Pissano Briaturi to imprisonment for five years and Horacio Gabriel Bandera-Pineyro to imprisonment for four years and eight months. All appeal against conviction and sentence.
[2] For ease of reference we will refer to the Pissano brothers as Carlos and Roberto respectively, and to Mr Bandera-Pineyro as Mr Bandera.

The case against the appellants

[3] The Crown case was that the appellants (all of whom are of Uruguayan nationality but were resident in New Zealand) were involved in a conspiracy to trade in cocaine between Uruguay and Australia, using New Zealand as a staging post. The police obtained interception warrants and intercepted communications involving all three, from which it was established that the Pissano brothers had a contact in Uruguay known as Mr Gaston from whom it was proposed to source the cocaine, and another Uruguayan contact who was resident in Australia, Mr Mega, to whom it was proposed the cocaine would be sold for distribution within Australia.
[4] The evidence was that in July 2005 Roberto met Mr Bandera at a casino in Hamilton and handed him a note, which Mr Bandera interpreted as an invitation to participate in the cocaine trading activities of the Pissano brothers.
[5] The proposed method of importation into New Zealand was to impregnate cocaine in liquid form into clothing, which would then be brought to New Zealand. This is apparently a method of transport of cocaine used in other jurisdictions. It was planned that, once the cocaine was brought to New Zealand, it would then be extracted from the clothing, but the extraction process required quantities of acetone, hydrochloric acid, sulphuric acid and ether.
[6] The plan unravelled because ether was not obtainable in New Zealand, despite efforts being made by the appellants, particularly Mr Bandera, to obtain it. The agreed plan with Mr Gaston was that the cocaine impregnated into clothes would be brought to New Zealand by two older women who would travel by air to New Zealand. Mr Gaston was intending to travel with them, but not to carry any of the drugs. When the unavailability of ether became apparent, the possibility of drugs being brought to New Zealand in a yacht was countenanced.
[7] The intercepted conversations include a number of conversations between Carlos and Mr Gaston and between Carlos and Mr Mega relating to the purchase price and sale price respectively of the cocaine.
[8] Ultimately no importations were made. It was for this reason that the appellants were charged with conspiracy to import and to export, rather than with any actual import or export transactions.

The intercept evidence

[9] Most of the telephone conversations which were intercepted were conducted in Spanish, being the native language of the appellants and of Mr Gaston and Mr Mega. English language translations of relevant intercepts were prepared by a Spanish-speaking customs officer, Mr Barnes. The Crown case relied substantially on the evidence obtained from those intercepted conversations.
[10] When arrested in October 2005, Carlos said in an interview with the police that the discussions about importation of cocaine were “just joking”. He said that the attempt to source chemicals related to cleaning concrete. Mr Bandera told the police that his discussions with the Pissano brothers did relate to the importation of cocaine, but he did not take the proposal seriously. He said he played along with it as a joke. Roberto did not give a statement to the police.
[11] All three appellants gave evidence at trial. In essence the position taken by Carlos and Roberto was that they were pretending to conspire to deal in cocaine but that their real objective was to swindle Mr Gaston or Mr Mega. Mr Bandera’s position was that he believed that the brothers were serious, but that he never intended to participate in the conspiracy and saw it all as a joke.

Carlos’ appeal against conviction

Counsel incompetence

[12] The notice of appeal raised as a ground of appeal a number of criticisms of Carlos’ trial counsel. These were set out in an affidavit sworn by Carlos. His trial counsel answered these criticisms in an affidavit in reply. He was not cross-examined and this aspect of the appeal was not pursued in oral argument. We are satisfied that there is nothing of substance in this ground of appeal.

Issues relating to conviction appeal

[13] The issues pursued by Mr Pyke in support of the conviction appeal were initially listed as:

(a) No voice identification caution in the summing up;

(b) A misdirection in the summing up about the “scam or swindle” defence;
(c) No direction in the summing up on the inadmissibility against Carlos of Mr Bandera’s statement to the police;
(d) Two jurors slept during parts of the trial.

No identification warning

[14] Section 126(1) of the Evidence Act 2006 requires a trial judge to warn the jury of the special need for caution before finding a defendant guilty in reliance on a visual or voice identification if the trial is one “in which the case against the defendant depends wholly or substantially on the correctness of” the identification.
[15] No such caution was given by the Judge in the present case.
[16] Counsel for Carlos, Mr Pyke, argued that the Judge erred in not giving the caution, though he noted that there was nothing to indicate that any counsel had asked for such a caution to be given at trial.
[17] We are satisfied that no caution was required in this case. The Crown case did not depend wholly or substantially on the correctness of any voice identification. The identification of those speaking in the intercepted conversations was not in dispute in the trial. Mr Bandera specifically conceded that he had been correctly identified, and neither Carlos nor Roberto made any serious challenge to the identifications made by Mr Barnes.
[18] The Pissanos’ defence was not that they were wrongly identified as the speakers on the relevant intercepted telephone calls, but rather that the statements they were recorded as having made were indicative of a plan to swindle Mr Gaston, rather than a plan to actually import/export cocaine. Mr Bandera conceded the correctness of the voice identification of him. In circumstances where there was no real dispute requiring a decision on the part of the jury as to the correctness or otherwise of voice identifications, no caution was required.

Absence of direction relating to Mr Bandera’s statement

[19] On behalf of Carlos, Mr Pyke argued that Carlos was prejudiced by the fact that the Judge did not direct the jury that the out of court statement made by Mr Bandera was not admissible as evidence against Carlos. This ground of appeal applies equally to Roberto. As noted earlier, Mr Bandera’s defence was that he was stringing along the Pissano brothers and did not take the proposal relating to the importing and exporting of cocaine seriously.
[20] Mr Bandera’s evidence at trial was consistent with his statement to the police, and his trial evidence was admissible against the Pissano brothers. And although Mr Bandera was derogatory of the Pissano brothers, his evidence was not necessarily adverse to their interests, in that his position was that there was never a real possibility of cocaine being imported pursuant to the scheme they had devised.
[21] Nevertheless, the direction that Mr Bandera’s out of court statement was not admissible against the Pissano brothers should have been given. Mr Pyke argued that the failure to give it prejudiced Carlos because, if the direction had been given the jury would have been cautioned that it was only Mr Bandera’s trial evidence, and not his police statement, that could be used in relation to the Crown case against Carlos.
[22] In the circumstances of this case, we do not think the absence of the direction had any impact on the effectiveness of Carlos’ (or Roberto’s) defence. Mr Bandera’s evidence at trial, insofar as it affected the Pissanos, reflected his out of court statements. We do not consider that these aspects of his evidence would have been substantially bolstered by its consistency with his previous out of court statements. In our view, the omission to give the direction did not lead to any miscarriage of justice.

Direction in relation to the “scam or swindle”

[23] The Judge directed the jury about the ingredients of the offence of conspiracy, including the requirement that the Crown prove an intention to import (or export) cocaine. The defence put forward by Carlos and Roberto was that they were intending to swindle Mr Mega or Mr Gaston, and that there was no actual intention to import and export cocaine. The Judge directed the jury that they could take into account this explanation put forward by Carlos and Roberto. However, one aspect of the Judge’s direction is criticised by Mr Pyke. Having told the jury that they could take into account the explanations given by Carlos and Roberto, the Judge subsequently returned to the topic and said:

It may have been that the Pissanos agreed separately between themselves to scam or swindle Gaston and Jose Mega but that is irrelevant to the primary question; that is, did they agree with each other, or with Jose Mega or Gaston, to import and export cocaine, and to play a part in it. If the Crown’s evidence does not satisfy you beyond reasonable doubt on that threshold question, then you acquit. But if it leaves you sure, after weighing up the Pisanno brothers’ explanations, then it is your duty to convict. You can, of course, go outside of the range of the early telephone calls. You can look at all of them. But you may find that in the first 10 or 20 there is an answer to that inquiry.

[24] Mr Pyke said that this direction effectively took Carlos’ defence away from the jury. He said that if the jury had accepted Carlos’ version of events, namely that there was no intention to import or export cocaine, but rather the intention was to scam or swindle Mr Gaston or Mr Mega, then there would have been no conspiracy to import/export cocaine and acquittals should have been the outcome. He said that the directions set out above undermined the tripartite direction which the Judge had given earlier, because it effectively excluded Carlos’ evidence about his intent from the jury’s assessment of intent for the purpose of proving the existence of the conspiracy.
[25] Counsel for the Crown, Mr Downs, said that the direction of the Judge was simply pointing out that, if the jury was satisfied that the Pissano brothers intended to import and export cocaine, the fact that they also intended to swindle or scam Mr Gaston and Mr Mega was irrelevant. He referred in particular to:

(a) The clear (and correct) directions on the elements of conspiracy, which made it clear that an intention to import (or export) cocaine was an essential ingredient. In giving that direction, the Judge made it clear that the Crown was required to prove intention to import (or export) cocaine, and to play a part or take a step in effecting such import or export. This included an extensive explanation of what constituted “intention” for this purpose;

(b) The Judge described the “scam” defence as put forward by Carlos’ trial counsel and, separately, the similar defence put forward by Roberto’s trial counsel in very clear terms.
[26] As has often been said in decisions of this Court, specific directions made by judges in their summings up must be looked at in the context of the summing up as a whole. When viewed in the context of the very clear directions given by the Judge which provided the jury with straightforward and legally correct instructions on the matters on which they had to be satisfied before convicting, we are satisfied that the direction set out at [23] above would not have misled the jury. We do not consider that there was any realistic risk that the jury would have convicted in circumstances where the evidence had satisfied it that no intention to import (or export) cocaine existed. If the jury had accepted that Carlos and Roberto were acting on a pretence so as to swindle Mr Gaston or Mr Mega, we have no doubt they would have acquitted. In light of the Crown evidence, it would have been surprising if the jury had reached that conclusion, and the verdict indicates that they did not.

Allegation of sleeping jurors

[27] Carlos said in his affidavit that he saw two jurors sleeping during the trial, that he raised it with his trial counsel and that the jurors often slept during the afternoon. His trial counsel’s evidence was that he found nothing in his trial notes to suggest an ongoing problem with sleeping jurors, that he is always alive to the possibility that jurors might fall asleep, that Carlos had probably been better placed to see if jurors slept but that he did not recall having to make an application to the Judge. He did not comment on the suggestion that Carlos had raised the sleeping juror issue with him.
[28] The state of the evidence before us is that we have an allegation by Carlos that two jurors slept for unspecified periods, but no support from anyone else who was in the Court and evidence from Carlos’ trial counsel which casts some doubt on his evidence. We do not see that as providing a basis for concern that any members of the jury were prevented from taking a full part in the jury’s decision-making process because they had slept through any part or parts of the trial. Mr Pyke accepted there was no evidence that any juror had slept during Carlos’ evidence, counsel’s closing address or the Judge’s summing up. He said in a supplementary written submission that he could not point to anything arising from the sleeping allegation that might support a submission that the defence case was overlooked by the jurors in question. He did not make oral submissions on this issue.
[29] We consider Mr Pyke’s treatment of the issue was responsible and realistic. On the state of the materials before us, there is nothing to support the proposition that a miscarriage occurred. This ground of appeal therefore fails.

Mr Bandera’s appeal against conviction

[30] The two grounds on which Mr Bandera’s appeal was founded were difficulties with the translation of intercepted calls and unfairness of the summing up.

Difficulties with translation

[31] On behalf of Mr Bandera, Mr Hesketh argued that the Judge had wrongly prevented him from pursuing a line of cross-examination of Mr Barnes, the translator. He wished to question the accuracy of some of the translations by Mr Barnes, and said that the Judge had prevented this. However, when asked to identify which transcripts had been mistranslated and how that had affected the outcome, Mr Hesketh was quite unable to do so. He pointed us to two examples where alternative translations had been put to Mr Barnes in cross-examination at trial, and Mr Barnes had maintained that his translation was correct. But those disputed translations were, of course, before the jury.
[32] If this point was to be pursued, it would have been necessary for evidence to be placed before this Court setting out aspects of the interceptions which had been improperly translated and expert evidence from a Spanish language specialist as to what the correct meaning was. It would then have been necessary to show that this incorrect translation could have effected the outcome. All we have in this case is a general assertion that some translations were wrong with nothing providing any basis for concluding that that was so, or, if it was, that it would have made any difference to the outcome.
[33] The reality is that the intercepted conversations provided overwhelming support for the Crown’s case that Mr Bandera agreed to become part of the conspiracy to import and export cocaine, and actively tried to source chemicals which the conspirators needed to acquire in order to carry out the scheme. The explicit nature of many of the intercepted conversations meant that nuances of translation were inconsequential. In the absence of any evidence giving reasons for concern about the accuracy of Mr Barnes’ translations, we see no merit in this ground of appeal.
[34] Mr Hesketh also criticised the Judge for saying that Mr Barnes’ translations were unchallenged. He said that the Judge’s truncation of the attempts to cross-examine the translator prevented challenges being mounted. We see nothing in this point. The reality was that although there were somewhat pin-pricking challenges to aspects of the translation, none of them came anywhere near challenging the essential nature of the intercepted conversations and the clear basis they gave for finding that Mr Bandera was part of a conspiracy to import and export cocaine. Insofar as the translations related to the substance of the Crown case, it was fair to describe them as unchallenged.

Was the summing up unfair?

[35] Mr Hesketh said that the summing up had been unfair to Mr Bandera. He highlighted the following:

(a) In giving the common direction on the need to put aside prejudice and act dispassionately, the Judge took as an example the fact that Mr Bandera had admitted that he was a user of methamphetamine. The Judge noted that the jury were likely to have adverse views on that subject, but told them they should not allow those views to cloud their judgment. We see that as entirely orthodox;

(b) The lies direction in relation to Mr Bandera noted that Mr Bandera had admitted lying to the police when he said he had no association with illicit drugs or used them, or that he had not been previously in trouble with the law. The Judge noted that Mr Bandera admitted at trial that he had been a cocaine user and that at the time of the interview he was a user of methamphetamine. He had also admitted that he had been deported from Canada for entering on a false passport. This was followed by a conventional lies direction that the jury should not jump to the conclusion that because a person has lied, that person is automatically guilty of the crimes under consideration. Again, we see this as orthodox;
(c) When directing the jury that they were entitled to accept some parts of the evidence of an accused person or a witness and reject others, the Judge said that the jury could accept Mr Bandera’s evidence that when Roberto approached him in the casino, he was talking about importing cocaine into New Zealand, but could reject other parts of his evidence, “such as his explanation for becoming involved”. He then gave the standard tripartite direction. Mr Hesketh said this was effectively telling the jury that they could reject Mr Bandera’s defence. Of course, the jury was entitled to reject Mr Bandera’s explanation, and apparently did so. We do not see the Judge’s comment, when viewed in the context of the summing up as a whole, as undermining Mr Bandera’s defence.
[36] More importantly, Mr Hesketh said that the Judge had failed to include in the summary of Mr Bandera’s defence case matters which Mr Hesketh considered were important aspects of that defence. For example Mr Hesketh said that in his closing address he had emphasised the need to consider the surrounding circumstances when evaluating what was said in the intercepted conversation, and had emphasised that Mr Bandera had no need for money from a drug dealing conspiracy because he had a good income (this was supported by tax records), and a painting contract with a well known home construction company.
[37] We see those as matters of detail which the Judge was entitled to omit from his summing up. The reality was that the trial had gone on for a number of weeks and a summary of the defence cases with the level of detail demanded by Mr Hesketh would have made the summing up impenetrably long. It is notable that although Mr Hesketh raised a number of issues with the Judge at the end of the summing up this was not one of them. Mr Hesketh did raise the issue of the context of the intercepted conversations, but when asked by the Judge what point he wanted the Judge to make, he let the matter drop.
[38] Standing back and considering matters in the round, we can see no proper basis for criticism of the Judge’s summary of the defence case. The essential elements of the defence were put, and the jury had, of course, heard the detailed version of the defence case from defence counsel himself. The fact is that Mr Bandera’s defence was weak, and the Judge had no obligation to create a false impression that it had more strength than it did.

Roberto’s appeal against conviction

[39] As noted earlier, a number of grounds of appeal raised on behalf of Carlos were relevant to, and supported by, Roberto.
[40] In addition, a previous appellate counsel for Roberto filed written submissions setting out four grounds of appeal, namely:

(a) That the defence of impossibility applied;

(b) That Roberto’s trial counsel had disregarded instructions and had failed in other respects to conduct the defence case properly at trial. This ground was supported by affidavits from Roberto and from Cecelia Encomendero, his partner;
(c) That there had been numerous misdirections in the summing up;
(d) That the verdict was unreasonable.
[41] At the hearing, counsel for Roberto, Mr Chambers, did not adopt any of these points and relied only on the points raised by Mr Pyke on behalf of Carlos to the extent they applied also to Roberto.
[42] The Crown filed an affidavit from Roberto’s trial counsel responding to the criticisms made of him. Counsel was not cross-examined. We see nothing of substance in the criticisms of counsel.
[43] We dismiss Roberto’s appeal against conviction.

Appeals against sentence

[44] As noted earlier, Carlos was sentenced to a term of nine years imprisonment, Roberto to four years eight months imprisonment and Mr Bandera to five years imprisonment. All appeal against sentence.
[45] In his sentencing notes, the Judge recounted the factual history and concluded that all three appellants were willing participants in the conspiracy. He noted the defence of the Pissanos (that they did not intend to import or export cocaine, but to swindle Mr Gaston and Mr Mega), and that of Mr Bandera (that the Pissanos were dreamers, and he did not take them seriously or ever genuinely intend to participate in any importing or exporting of cocaine). The Judge said that it was hardly surprising that the jury had rejected these defences, which he described as “fanciful and desperate”. He said the defences “flew in the face of the unequivocal contemporaneous evidence”.
[46] The Judge made two specific factual findings. These were:

(a) That the importation of cocaine was to be of a high purity (95 per cent) and with a street value of between $1 million and $10 million dollars. The range of values derived from the fact that the plan at one stage was to import ten kilograms, but at another this appeared to be reduced to one kilogram. The Judge said that he did not think it mattered whether it was one kilogram or ten kilograms because in either case the amounts were very substantial and the gains would also have been substantial ($350,000 for one kilogram, $800,000 for ten kilograms);

(b) The expectation was that the importation would be between one and ten kilograms, and that the cycle would be repeated every two or three months. However, the Judge said he was satisfied that the appellants were unlikely to be ever able to achieve this because they were never going to be able to source the necessary chemicals to extract the impregnated cocaine from the clothing imported into New Zealand. He described the appellants as “rank amateurs”.
[47] In setting a starting point, the Judge noted that the Crown submissions relied on R v Prickong [1990] 1 NZLR 5 (CA). In that case the offender had pleaded guilty at a late stage to conspiring to import 2.053 kg of 95 per cent pure heroin with a street value of between $8 million and $16 million. This Court had upheld an effective sentence of 15 years for one offender, but reduced Mr Prickong’s sentence from 12 years to ten years. Harrison J said that he viewed Prickong as being more extreme than the present case. And in that case the conspiracy was capable of reaching fruition at the time the police intervened. It was clear that an importation would have been committed in Prickong if that intervention had not occurred, but that was not so in the present case.
[48] The Judge considered aggravating factors as contributing to the starting point, rather than setting a starting point for the offending and adjusting it upwards to reflect the aggravating factors. Those factors were the degree of planning and premeditation (for over three months), the prospect of making financial profit at the expense of the citizens of New Zealand and Australia, the substantial amounts to be imported (between one and ten kilograms) and the totality of the appellants’ offending, which in the case of Carlos involved linkage between two high powered drug dealers in Uruguay and Australia.
[49] The Judge saw deterrence as a critical factor, particularly the need to send a message to those who seek to use New Zealand as a staging post to courier drugs to Australia and elsewhere.
[50] The Judge concluded that if the offences had been completed, a 16 year starting point would have been appropriate for Carlos. In view of the fact that the offences were conspiracies only, he set the starting point for Carlos at ten years, reflecting the fact that Carlos was the ringleader and the instigator of the offending. He gave some discount for previous good character, the onerous effect of the bail conditions to which Carlos had been subject for a lengthy period before the trial and the separation he had endured from his family (who were deported to Uruguay soon after Carlos’s arrest). The end sentence was nine years imprisonment.
[51] In relation to Roberto, the Judge saw Roberto’s role as secondary, and described him as impressionable. He took a starting point of six years from which he made discounts for the same factors as those affecting Carlos. In the case of Roberto the discount was one year, leaving a sentence of five years imprisonment.
[52] In relation to Mr Bandera, the Judge considered that Mr Bandera’s role was less and that he was truly a secondary party. He took a starting point of five years imprisonment and gave a discount for the period that Mr Bandera had spent in custody and the strict bail terms to which he had been subject before trial. A final sentence of four years and eight months imprisonment was imposed.
[53] In all cases the sentences were imposed in relation to both counts, on the basis that they would be served concurrently.
[54] For Carlos, Mr Pyke argued that the Judge had overestimated the seriousness of the offending. He emphasised the unsophisticated nature of the appellants’ efforts and the lack of any likelihood of their succeeding in importing drugs. He described the conspiracy as “no more than wishful thinking”. He suggested that a starting point of three years lower than that adopted by the Judge was appropriate.
[55] We see nothing in this point. We do not consider the Judge was wrong to determine that a starting point of around 16 years may well have been appropriate for the overall offending if the conspiracy had been put into effect, based on the decision of this Court in R v Davis and Collinson CA440/04 20 October 2005. The Judge made a substantial adjustment for the fact that this was a conspiracy not actual importing, and his comments demonstrate that he was alive to the point that the incompetence of the appellants meant that the conspiracy did not have a high probability of success. He was well placed, having presided at the trial, to make the assessments he did and we can see no basis for interfering with either the starting point or the end sentence for Carlos.
[56] On behalf of Mr Bandera, Mr Hesketh emphasised Mr Bandera’s minimal involvement in the actions taken to give effect to the conspiracy. He emphasised the fact that although Mr Bandera acknowledged he was a drug user, his only criminal record in New Zealand was a charge resulting from a false declaration being made to immigration authorities for which he received a sentence of 400 hours community work. He said that the Judge had taken into account the difficulties caused by separation from family for the Pissanos, but had not mentioned this factor in relation to Mr Bandera. He suggested that the sentence should be reduced by 12 months.
[57] Again, we see no basis for interference with the Judge’s assessment. The factors mentioned by Mr Hesketh were all taken into account by the Judge, although we acknowledge he did not mention separation from family. Mr Bandera could not claim previous good character as a mitigating factor and was clearly in a different position from the Pissanos in that regard. We are satisfied that there are no grounds for a greater discount in his case, even allowing for the separation factor.
[58] For Roberto, Mr Chambers emphasised the lesser role of Roberto, the fact that he was younger and impressionable, and argued that a greater discount should have been given from the starting point. He did not, however, challenge the starting point itself. In our view the discount given by the Judge was generous (though appropriately so) and there is no principled basis for intervention. The approach suggested by Mr Chambers was that a reduction of two and half to three years should have been given from the six year starting point for the factors which had led the Judge to a one year reduction, but that would have been quite out of step with sentencing practice.
[59] We dismiss the appeals against sentence.

Result

[60] We dismiss all appeals against conviction and sentence.

Solicitors:
Equity Law, Auckland for Roberto Pissano Briaturi
Crown Law Office, Wellington