Ministry of Health v Green  NZDC 13607
Published 13 September 2021
Judge-alone trial — displaying tobacco product advertisements — advertising tobacco products — tobacco products — whether charges allege an offence —
nullity — Ministry of Health v Qiao  NZDC 5260 — Director General of Health v Rothmans of Pall Mall (New Zealand) Limited  DCR 353 — Ministry of
Health v Discount Cigarette Supplies Limited, Porirua DC, CRI-2013-091-003233, 25 June 2014, Hastings DCJ — Sweet v Parsley  AC 132 — Millar v Ministry of
Transport  1 NZLR 660 — Simpson v Attorney General (Baigent's case)  3 NZLR 667 — Smoke-free Environments Act 1990, ss 2, 3A, 21, 22,
36(1) & 41F(1) — New Zealand Bill of Rights Act 1990, ss 6 & 14.
The defendant together with his tobacco-selling business were charged with displaying tobacco product advertisements in breach of ss 22 and 36(1) of the
Smoke-free Environments Act (the Act). An official from the Ministry of Health had found signs both inside and outside the business premises advertising Captain
Zig Zag and Rizla, brands of cigarette papers, as well as other non-tobacco products such as pipes, lighters and filters. After warnings from the Ministry, the first
defendant stated that he did not believe that the signs did breach the Act.
The defendants argued that the charges were a nullity, as one of the relevant statutory provisions (s 36(1)(c)) did not exist at the time that the charges were laid;
and that the charges did not allege an offence, as the signs did not advertise"tobacco products" as defined in the Act. The Court quickly ruled that these were
defects of form only, and amended the charges pursuant to s 133 of the Criminal Procedure Act 2011.
The defendants also argued that s 22 of the Act prohibits "tobacco product advertisements", while s 36 makes such an advertisement for a "tobacco product" a
criminal offence. "Tobacco products" are defined in s 2 as products manufactured from tobacco, while the defendant's signs had advertised not products made
from tobacco but accessories, and to advertise accessories is not an offence under the Act. Therefore the defendants had not committed a criminal offence. The
Court acquitted the defendants on both charges. Judgment Date: 17 July 2019.