R v Bell

[2025] NZHC 1779

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-009-8205 [2025] NZHC 1779

THE QUEEN

v

RENE BELL ESTEBAN BLANCO GAVIRIA DAVID BONILLA CASANAS

C

ELIDA LUCIA ESCORIA MARIN ZANE ROBERT JORDAN

FELIPE MONTOYA OSPINA MARIA EMILIA OTERO ANDERSON PELAEZ GARCIA RUTH YANID RAMIREZ ALFONSO J

Hearing:                   On the Papers

Counsel:                   B Hawes for Crown

A C Kelland for Defendant Bell

N R Rout and M E Rout for Defendant Blanco Gaviria K Paima for Defendant Bonilla Casanas

M Taylor-Cyphers for Defendant C

l Cordwell for Defendant Escoria Marin S N B Wimsett for Defendant Jordan

E Huda for Defendant Montoya Ospina A McCormick for Defendant Otero

S G Bailey for Defendant Pelaez Garcia
T D A Harrē for Defendants Ramirez Alfonso and J

Judgment:                1 July 2025

JUDGMENT OF MANDER J

R v BELL [2025] NZHC 1779 [1 July 2025]

Introduction

[1]    Pursuant to the Senior Courts (Access to Court Documents) Rules 2017, (the Rules) John Sibanda brings an application seeking access to Court documents pertaining to “Operation Mist”—a significant police investigation into the importation of cocaine into this country from South America that involved international cooperation with overseas drug enforcement authorities.

[2]    By way of application dated 21 March 2025, Mr Sibanda requests access to “the full court records” including transcripts and decisions of the Court. To give an impression of the breadth of Mr Sibanda’s request, this would include:

(a)full transcripts of court hearings and trial;

(b)transcripts of submissions made by counsel;

(c)written submissions by both the prosecution and defence;

(d)all formal statements filed in the proceeding;

(e)all pre-trial decisions;

(f)all bail applications and associated documents;

(g)any media orders or suppression orders; and

(h)        appeal documents if the case was subject to appellate review. (the application).

[3]    In essence, Mr Sibanda is seeking any and all documents pertaining to the criminal proceedings.

[4]Mr Sibanda says that he seeks access because:

I am producing a TV scripted projected entitled ‘Vicio’. The screenplay is being developed by Esteban Jaramillo-Ulloa and we seek to explore (through fiction) the human dimensions of the ‘Operation Mist’ [premise].

[5]    Mr Sibanda adds that the information sought will contribute to a writing project by Mr Jaramillo-Ulloa, a screenwriter who is developing a feature film screenplay for submission to the Write Room Wellington residency programme. The aim of the programme is to support screenwriters to develop their screenplay to a level where it can be pitched to a producer and secure further development funding and a pathway towards production. The screenplay seeks to explore the complexities of isolation, financial motivation, and the socio-cultural factors influencing the actions of the syndicate members. Mr Sibanda says that access to the complete court records will ensure that the portrayal of events and characters is accurate and contributes meaningfully to New Zealand’s screenwriting and storytelling landscape.1

Opposition

[6]    Mr Sibanda’s application has been referred to the parties in accordance with  r 11(3) and sub-r (5) of the Rules. Although there were 10 defendants in Operation Mist, Mr Sibanda only seeks access in relation to five of those individuals—Anderson Pelaez Garcia, Felipe Montoya Ospina, Estaban Blanco Gaviria, David Bonilla Casanas, and Zane Robert Jordan. However, the breadth of his application and the information that he seeks is such that it inevitably implicates all defendants.

[7]    Mr Hawes for the Crown opposes the application, highlighting that the documents requested by Mr Sibanda extend significantly beyond what he might otherwise be entitled to under r 8 of the Rules. The Crown’s primary objection to the application is that access to the sought documents would likely breach extant suppression orders in place that prevent publication of certain material. In Mr Hawes’ submissions, those suppression orders impact upon the request for access to the court file generally. Mr Hawes informs that there are two current suppression orders in place that are relevant. One defendant, Mr C, has interim name suppression to protect his

1      The request complies with the content requirements contained in r 11(2) of the Senior Courts (Access to Court Documents) Rules 2017. The requester is sufficiently identified, as is the broad spectrum of documents sought, and the requester has provided specific reasons as to why access is sought.

fair trial rights in an upcoming trial. Extensive suppression orders are in place for a former defendant, Mr J. Mr Hawes submits that the reasons provided by Harland J in granting Mr J permanent name suppression on the basis that publication of his name endangered his safety demonstrate why a cautious approach is required in dealing with Mr Sibanda’s request.2

[8]    Mr Hawes further highlights that it would be a significant undertaking for counsel to review and redact the material sought to ensure that the suppression orders are not breached.3

[9]    The Crown notes concerns that Mr Sibanda’s request encompasses formal written statements filed by the Crown during the prosecution. This raises difficulties considering prosecutions were resolved by pleas on an agreed factual basis.

[10]   I have also received submissions from Mr J’s counsel, Mr Harré, who, while acknowledging Mr Sibanda’s intention to fictionalise any documentation received, submits the risk of identification and accidental undermining of the extant suppression orders remains too great.

[11]   I am also in receipt of submissions from Ms Taylor-Cyphers, counsel for C, who currently has interim name suppression4 as he awaits trial for charges in the Auckland High Court arising out of Operation Regis, being charges similar in nature to Operation Mist. Ms Taylor-Cyphers conveys that the defendant expresses neutrality as to the outcome of Mr Sibanda’s application, but understandably insists that his name be redacted from any document provided.

[12]   Ms Kelland for Mr Bell submits that the material sought contains private information pertaining to Mr Bell. She highlights that Mr Bell’s entering of a guilty

2      R v J [2024] NZHC 2257. Harland J also made an order pursuant to r 5(2) of the Rules that I go on to discuss below.

3      The Crown made submissions on this same concern in the context of a research article relating to the R v Dickason proceedings—see R v Dickason [2024] NZHC 2343 at [4]. This factor does not seem to have factored into Eaton J’s analysis in declining access, however. His Honour’s main concern was the need to protect Ms Dickason’s fair trial rights given she had filed a notice of appeal.

4      C was granted interim name suppression in an oral judgment of Johnstone J distributed to the parties only.

plea prior to trial means that the material on the court file is untested through ordinary trial processes. Mr Bell, having been declined permanent name suppression, is fearful of further media publication of his name and the effect of how a possible second wave of publication could impact negatively on his business, when his family has already suffered significant consequences when his name was first published.

[13]   Noting concerns that the use and publication of the material sought cannot be controlled,5 Ms Kelland submits that the film story can be told on the information already publicly available—there being no need for further documentation to be obtained that exposes Mr Bell’s name or personal identifying information to be used as part of the story. Ms Kelland adds that Mr Bell has served his sentence and wants to put the stress of the past few years behind him. She further submits that open justice carries a lesser weight at the current stage of the proceedings.

[14]   Mr McCormick for Ms Otero has noted that he does not take a view on the application, as none of the material sought relates to Ms Otero specifically.

[15]I have not received submissions from other parties.

Discussion

[16]   Rule 8 of the Rules provides a right of access to members of the public who are not a party to the relevant criminal proceedings:

8        General rights of public

…

Criminal proceedings

(3)Every person has the right to access the following relating to a criminal proceeding, except as provided in subclause (4):

(a)the permanent court record under Part 7 of the Criminal Procedure Rules 2012:

(b)any published list providing notice of a hearing:

5      Ms Kelland submitted that there is no way of regulating an “artistic license”, or of controlling how the information sought would be used.

(c)any judgment, order, or minute of the court given in the proceeding, including any records of the reasons given by a judicial officer:

(d)any judicial officer’s sentencing notes.

(4)Without limiting rule 6(a), a person may access the following documents in a criminal proceeding only if a Judge permits the person to do so:

(a)any pre-trial judgment, order, or minute in a criminal proceeding, including any bail judgment, order, or minute:

(b)any document containing evidence of a complainant or of a person who gives or intends to give propensity evidence:

(c)electronically recorded documents of interviews with a defendant:

(d)any document that identifies, or enables the identification of, a person if the publication of any matter relating to the person’s identity (such as the person’s name) is forbidden by an enactment or by an order of the court or a Registrar:

(e)any document received, or any record of anything said, in a proceeding while members of the public are excluded from the proceeding by an enactment or by an order of the court:

(f)any document containing evidence provisionally admitted into evidence and any document containing evidence that has been ruled inadmissible by the court.

[17]   Inhibiting Mr Sibanda’s general right of access is the permanent direction made by Harland J in R v J under r 5(2) of the Rules that “judgments orders, documents or files of any kind relating to this defendant may not be accessed, except by counsel for the parties, without prior permission of this Court.”6 The court retains ultimate control as to how court documents are to be dealt with and who may access them. Everything in the rules has to be seen as subject to the court’s overriding discretion.7 Accordingly,

Mr Sibanda’s general right is subject to Harland J’s direction.8

[18]   The “permanent court record” comprises much by way of background information about the Operation Mist proceedings. For example, the permanent court

6 At [18].

7      Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [SCD5.01].

8      Good reason is required to exercise the power under r 5 when rights of access are conferred under r 8: Deng v Ye [2018] NZHC 928, (2018) 24 PRNZ 38 at [9]. Harland J considered such reasons existed and it is important that I take that into account.

record details the particulars of each defendant, suppression orders, descriptions of the charges, pleas, and the outcome of any application for bail.9

[19]   The access sought by Mr Sibanda falls for determination under rr 11–13. The files that are covered by r 8(4) must be considered against rr 11–13.10 Harland J’s direction issued pursuant to r 5(2) likewise means that Mr Sibanda is not entitled to access the documents included in r 8(3) as of right, as he requires the prior permission of this Court.11

[20]Rule 11 provides:

11Any person may ask to access documents

…

(2)A person may ask to access any document by providing the Registrar of the relevant court registry with a letter, an email, or any other written form of request that—

(a)identifies the person and gives the person’s address; and

(b)sets out sufficient particulars of the document to enable the Registrar to identify it; and

(c)gives reasons for asking to access the document, which must set out the purpose for which the access is sought; and

(d)sets out any conditions of the right of access that the person proposes as conditions that he or she would be prepared to meet …

…

(7)A Judge may—

(a)grant a request for access under this rule in whole or in part—

(i)without conditions; or

(ii)subject to any conditions that the Judge thinks appropriate; or

(b)refuse the request; or

9      This is only a flavour of what is included in the “permanent court record”—see Criminal Procedure Rules 2012, r 7.2.

10     This being a general qualification on Mr Sibanda’s right of access generally—see r 6(3).

11     Senior Courts (Access to Court Documents)  Rules,  r  11(1).  But  for  Harland  J’s  direction, Mr Sibanda would otherwise be entitled to access the documents included in r 8(3).

(c)refer the request to a Registrar for determination by that Registrar.

[21]   In making a determination under r 11, the Judge must consider the nature of, and reasons given for, the request.12 The Judge must also take into account the following matters where relevant:

12Matters to be considered

…

(a)the orderly and fair administration of justice:

(b)the right of a defendant in a criminal proceeding to a fair trial:

(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:

(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:

(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):

(f)the freedom to seek, receive, and impart information:

(g)whether a document to which the request relates is subject to any restriction under rule 7:

(h)any other matter that the Judge thinks appropriate.

[22]   The  principle  of  open  justice  is  fundamental  to  our  system   of   justice.13 However, there is no presumption in favour of disclosure.14 A balancing exercise has to be carried out, weighing the privacy interests of those concerned against the public interest in open justice.15 The Court must balance all relevant factors in exercising its discretion and evaluate the appropriate weight to be given to each factor.16

12     Senior Courts (Access to Court Documents) Rules, r 12.

13     Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30 at [33].

14 At [25].

15     X v Standards Committee (No 1) of the New Zealand Law Society [2011] NZCA 676; and Y v Attorney-General [2016] NZCA 474, [2016] NZAR 1512.

16     Crimson Consulting Ltd v Berry, above n 13, at [32].

[23]   The principle of open justice is always relevant, but this must be balanced against the other considerations set out in r 12. Mr C’s prosecution for Operation Regis is currently at the pre-trial stage. However, I do not consider that r 13(a) applies with equal force as if it were Operation Mist that was at the pre-trial stage. The documents sought do not pertain to Operation Regis, but rather Operation Mist.

[24]   Considering the current stage of the proceedings in Operation Mist, open justice is to be afforded greater weight in relation to documents that have been relied on in a determination than other documents. However, the protection of confidentiality and privacy interests are required to be given greater weight than would be the case during the substantive hearing.17

[25]   Ms Taylor-Cyphers helpfully informs there has been an application for access to court documents relating to Operation Regis that was granted by Downs J on the condition that Mr C’s name was not to be published.18 The applicant, a journalist, sought access to all copies of all indictments and affidavits filed as part of the court proceedings for a report about the smuggling of crystal methamphetamine from Canada to New Zealand. The journalist provided an undertaking he would not publish Mr C’s name or any information that may lead to his identification. Downs J observed there is public interest in the dissemination of information of this type and that only one defendant objected to the request, and he would not be prejudiced because he had pleaded guilty. Downs J allowed the application.

[26]   In his application, Mr Sibanda notes that he is prepared not to disclose the documents sought and is willing to receive copies of documents that he would return. He stresses that he intends to fictionalise identifying details. That willingness however must be weighed against the importance of maintaining the integrity of Mr J’s name suppression. As Harland J held in granting Mr J name suppression:

[15] Because of the sensitive nature of the application, I am satisfied that the provisions of s 205 are also applicable. I am satisfied that it is appropriate to make an order forbidding publication of any reports or account of the whole or any part of the evidence adduced or the submissions made in this proceeding for the reason that

17     Senior Courts (Access to Court Documents) Rules, r 13(c).

18     R v Zhang & Ors HC Auckland CRI 2023-004-001080, 27 February 2025; and R v Zhang & Ors

HC Auckland CRI 2023-004-001080, 28 February 2025.

publication would, first, be likely to cause danger to the safety of the defendant and second, under s 205(2), would be likely to prejudice the maintenance of the law under s 205(2)(e) of the Criminal Procedure Act.

[27]   Harland J determined that open justice could be departed from in granting Mr J name suppression and made comprehensive orders under s 205 of the Criminal Procedure Act 2011. I consider I must be guided by that approach. I am not prepared to grant access to any documents that include Mr J’s name given the risk of identification and the incidental undermining of the extant suppression orders. I consider there is a risk that all of the documents sought by Mr Sibanda at [2] may fall into this category or at least risk Mr J’s identification.

[28]   The real question distils to whether Mr J’s name (and Mr C’s name) could be redacted from each document that identifies them to eliminate this risk. In this sense, Mr Sibanda is not assisted by how wide he has cast the net in terms of the documents that he seeks, given the substantial efforts that would be required to make satisfactory redactions. I consider the intensive resourcing of such a task by either the Crown or the Court Registry renders such a task unreasonable and considerably detracts from the application.19

[29]   A key tenet of the principle of open justice is to encourage fair and accurate reporting and comment on Court hearings and decisions.20 However, that is not present to any real degree in respect of the present application. While Mr Sibanda’s intentions in seeking access to the documents are to ensure an authentic portrayal of the fictionalisation of Operation Mist, I do not consider the public interest in such an endeavour outweighs the countervailing considerations. The information is sought in advancement of a private filmmaking project. There is force in Ms Kelland’s submission that the film can draw on information already in the public domain, without requiring any further documentation that would reveal names or personal identifying details for inclusion in the story.

19     Senior Courts (Access to Court Documents) Rules, r 12(h).

20     ALT New Zealand Ltd v Attorney-General [2023] NZHC at [17].

[30]   Mr Bell fears the prejudice that may result to him and his family from further publication of his name. However, I acknowledge such prejudice could be mitigated by the willingness of Mr Sibanda to not mention his name.

[31]   Weighing the matters I have reviewed, I consider that in the circumstances the application for access must be declined. I have taken into account the principles of open justice, but having regard to the extant suppression orders and the considerable task that would be involved to ensure those orders were not breached, particularly as a result of the consequential effects of the disclosure of other related material, that factor which may ordinarily have justified granting access carries less weight. I consider open justice is outweighed by the interests that are to the fore in this case which justified name suppression, and which favour not granting access.

Result

[32]The application is dismissed.

Solicitors:
Crown Solicitor, Christchurch