Ministry of Health v Green [2019] 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 [2017] NZDC 5260 — Director General of Health v Rothmans of Pall Mall (New Zealand) Limited [1996] DCR 353 — Ministry of Health v Discount Cigarette Supplies Limited, Porirua DC, CRI-2013-091-003233, 25 June 2014, Hastings DCJ — Sweet v Parsley [1970] AC 132 — Millar v Ministry of Transport [1986] 1 NZLR 660 — Simpson v Attorney General (Baigent's case) [1994] 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.