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Ministry of Health v Green [2019] NZDC 13607 (17 July 2019)

Last Updated: 13 September 2021

RESERVED DECISION OF JUDGE L C ROWE

[1] Discount Tobacconist NZ Limited sells cigarettes and tobacco from shops at 289 Main Street, Palmerston North and 773 Main Street, Palmerston North with the shop trading name, “The Butt Bucket”.

[2] Richard Green is a director and hands-on proprietor of both shops.

[3] The company and Mr Green are together charged with 12 offences under ss 22 and 36(1) of the Smoke-free Environments Act 1990 as follows:

MINISTRY OF HEALTH v RICHARD GREEN [2019] NZDC 13607 [17 July 2019]

Discount Tobacconist NZ Ltd

CRN 18054500429 – Between 16 May 2017 and 20 February 2018 displayed tobacco product advertisements at “The Butt Bucket”, 289 Main Street, Palmerston North.

CRN 18054500430 – Between 16 May 2017 and 20 February 2018, displayed tobacco product advertisements at “The Butt Bucket”, 773 Main Street, Palmerston North.

CRN 18054500784 – On 10 January 2018, displayed tobacco product advertisements at “The Butt Bucket”, 289 Main Street, Palmerston North by displaying outside the store the words “Zig”, “Riz” and “Boom” and the “Zig Zag man” logo.

CRN 18054500785 – On 10 January 2018, displayed tobacco product advertisements at “The Butt Bucket”, 289 Main Street, Palmerston North by displaying inside the store blue, turquoise and orange “Riz” signs.

CRN 18054500786 – On 10 January 2018, displayed tobacco product advertisements at “The Butt Bucket”, 773 Main Street, Palmerston North by displaying inside the store blue, turquoise and orange “Riz” signs.

CRN 18054500787 – On 20 February 2018, displayed tobacco product advertisements at “The Butt Bucket”, 773 Main Street, Palmerston North by displaying outside the store the words “Zig”, “Riz” and “Boom” and the “Zig Zag man” logo.

Charges against Richard Green

CRN 18054500432 – Between 16 May 2017 and 20 February 2018, displayed tobacco product advertisements at “The Butt Bucket”, 289 Main Street, Palmerston North.

CRN 18054500433 – Between 16 May 2017 and 20 February 2018, displayed tobacco product advertisements at “The Butt Bucket”, 773 Main Street, Palmerston North.

CRN 18054500780 – On 10 January 2018, displayed tobacco product advertisements at “The Butt Bucket”, 773 Main Street, Palmerston North by displaying inside the store blue, turquoise and orange “Riz” signs.

CRN 18054500781 – On 10 January 2018, displayed tobacco product advertisements at “The Butt Bucket”, 289 Main Street, Palmerston North by displaying outside the store the words “Zig”, “Riz” and “Boom” and the “Zig Zag man” logo.

CRN 18054500782 – On 10 January 2018, displayed tobacco product advertisements at “The Butt Bucket”, 289 Main Street, Palmerston North by displaying inside the store blue, turquoise and orange “Riz” signs.

CRN 18054500783 – On 20 February 2018, displayed tobacco product advertisements at “The Butt Bucket”, 773 Main Street, Palmerston North by displaying outside the store the words “Zig”, “Riz” and “Boom” and the “Zig Zag man” logo.

Agreed facts

[4] A Ministry of Health compliance officer visited “The Butt Bucket” at 289 Main Street, Palmerston North on 16 May 2017 for a compliance check. The officer found signage both inside and outside the store depicting the “Captain Zig Zag” logo and the “Rizla” logo. Zig Zag and Rizla are brands of cigarette papers. Below the Rizla logo was a list of non-tobacco products sold at the store including the words “Rizla, pipes, lighters and more and boomerang filters”.

[5] The compliance officer visited the “The Butt Bucket” at 773 Main Street, Palmerston North on 17 May 2017 and found the same signage as well as signage for “Zippo” lighters with a picture of a cigarette lighter.

[6] The Ministry sent non-compliance letters to Mr Green in August 2017 advising that the Ministry considered the signage to constitute “tobacco product advertisements” in breach of the Smoke-free Environments Act 1990. They asked Mr Green to outline how he would comply with the Act.

[7] The compliance officer visited both stores again on 25 October 2017. He noted that, at both stores, the signage for Zig Zag was now “Zig”, the word Rizla was now “Riz”, the word Boomerang was now “Boom”, the Captain Zig Zag logo was still present but the Rizla logo had been removed.

[8] The Ministry sent a warning letter to Mr Green on 15 December 2017 in relation to both premises stating:

The Ministry of Health considers the display of signage with the logo and wording Zig Zag, Rizzla, Boomerang, Zig, Riz, Boom or similar tobacco paper signage and logos, whether outside or inside the retailer, to be a breach of the Smoke-free Environments Act 1990.

[9] The compliance officer visited both premises on 10 January 2018 and found the same signage as observed on the 25 October visit.

[10] The compliance officer visited the store at 773 Main Street, Palmerston North on 20 February 2018 where the same signage was again observed. Mr Green was interviewed under caution where he stated he did not believe the signage advertised tobacco products and nor did he intend to advertise tobacco products by displaying the signage. He did not therefore consider he was breaching the Act.

Are the charges a nullity?

[11] The defendants’ first argument is that the charges, as laid, are nullities because:

• (a) The charges are laid as an alleged breach of a statutory provision, and by reference to a maximum penalty, that did not exist at the time the offences were committed.
  
• (b) The charges do not allege a criminal offence.
  

What is a nullity in criminal law?

[12] A proceeding is a nullity if it contains such a fundamental error or defect that it cannot proceed. A charging document will be rendered a nullity only where its defects are so radical they deprive the document of its essential character. Technical or mechanical defects will not suffice for voidance of a charge and New Zealand courts will be slow to reach the “drastic conclusion” of voidance. Even serious defects will not render a charging document a nullity, as long as the impugned defect does not

deprive the charging document of its essential character. 1

[13] The Criminal Procedure Act 2011 (CPA), at section 133 (where the Court has a power to amend charges) and section 379 (where proceedings are not to be questioned for want of form unless there has been a miscarriage of justice), allow defects to be amended provided the amendment is one of form that is “by implication” contained within the charges and does not cause a miscarriage.2

The wrong section and maximum penalty

[14] The charges purport to be laid under ss 22 and 36(1)(c) of the Act with a maximum penalty of a fine of $50,000.

[15] Section 36(1)(c), and the maximum fine of $50,000, were however not inserted into the Act until 14 March 2018.

[16] Until then, the equivalent provision was s 36(1) of the Act which provided:

36 Offences in respect of tobacco products and herbal smoking products

(1) Every person who, without reasonable excuse, publishes any advertisement for a tobacco product in contravention of section 22 commits an offence and is liable,—

• (a) in the case of a manufacturer, an importer, or a distributor, to a fine not exceeding $50,000; or
  
• (b) in any other case, to a fine not exceeding $10,000.
  

[17] As the charges do not allege that either Mr Green or his company were a manufacturer, importer or distributor of tobacco, the charges are more appropriately viewed as alleged offences under s 36(1)(b) for which the maximum penalty is a fine not exceeding $10,000.

1 Tallies Group Ltd v Worksafe NZ [2018] NZCA 587, R v Ayres [1984] AC 447, Heukels v District Court at Masterton, HC Wellington, CIV 2010-435-141, 4 November 2010, Muirson v Collector of Customs [1982] NZHC 506, Hall v Ministry of Transport [1991] 2NZLR 53 and Beazer v Wellington City Council, HC Wellington, CRI-2009-485-23, 26 June 2009.

2 Talleys v Worksafe, n 1.

[18] The defect is a want of form only and can be cured by amendment of the charges under s 133 of the CPA without prejudice to the defendants.

[19] All charges are amended accordingly.

Do the charges allege an offence?

[20] This submission arises out of the wording of ss 22(1) and 36(1) of the Act and the definitions under the Act of “tobacco product” and “tobacco product advertisement”.

[21] Section 22(1) of the Act provides:

22 Advertising of tobacco products

(1) No person may, unless authorised by section 22A or 23, publish in New Zealand, or arrange for any other person to publish in New Zealand, a tobacco product advertisement (as defined in section 2(1)).

[22] Under s 2(1) “tobacco product” is defined in the following way:

tobacco product means any product manufactured from tobacco and intended for use by smoking, inhalation, or mastication; and includes nasal and oral snuff; but does not include any medicine (being a medicine in respect of which there is in force a consent or provisional consent given under section 20 or section 23 of the Medicines Act 1981) that is sold or supplied wholly or principally for use as an aid in giving up smoking.

[23] Under s 2(1) of the Act, the relevant part of the definition of “tobacco product advertisement” is:

tobacco product advertisement means any words, whether written, printed, or spoken, including on film, video recording, or other medium, broadcast or telecast, and any pictorial representation, design, or device, used to encourage the use or notify the availability or promote the sale of any tobacco product or to promote smoking behaviour ...

[24] The defendants’ argument is that, while s 22(1) creates a prohibition against tobacco product advertisements, the criminal offence under s 36(1) is publishing any advertisement for a tobacco product in contravention of s 22. As the charges do not allege that the defendants have published an advertisement for a tobacco product, they do not allege a criminal offence.

[25] For reasons that I will come to, I agree with the defendants that the criminal offence is not created by s 22 but by s 36(1). The wording of the charging documents is therefore an incorrect statement of the offence created by s 36(1).

[26] This however is a defect of form by which the defendants have not been misled or prejudiced. Indeed, Mr Green in his interview, relied upon the definition of “tobacco products” in support of his assertion that he had not committed an offence. The charges, the offence provision referred to (albeit incorrectly), and the summary of facts, all allege, in substance, the offence of publishing advertisements for tobacco products in contravention of s 22 of the Act.

[27] I accordingly amend each charge under s 133 of the CPA to conform with the offence provision under s 36(1) of the Act so they allege that, on or between the dates specified, the defendants “without reasonable excuse, published any advertisement for a tobacco product in contravention of s 22 of the Smoke-free Environments Act 1990” at the applicable store and by reference to the particulars where given.

[28] There is no miscarriage in doing so. The defendants are aware of, and indeed rely upon, the statutory distinction between “tobacco products” and “tobacco product advertisements” in the Act.

[29] For these reasons, I consider none of the charging documents to be nullities.

Have the defendants committed an offence?

[30] In s 36(1) of the Act the proscribed offence is, without reasonable excuse, publishing any advertisement for a tobacco product in contravention of s 22.

[31] The defence position is that s 36(1), in its terms, specifies as criminal, the act of publishing any advertisement for a tobacco product which, by definition, means any product manufactured from tobacco and intended for use by smoking, inhalation, or mastication, including nasal and oral snuff. As the defendants were advertising cigarette papers, lighters and filters, they were not advertising tobacco products as defined.

[32] The prosecution argument is that the words “publishes any advertisement for a tobacco product” are qualified by the additional words “in contravention of s 22” so that, in context, s 36(1) creates an offence of publishing a tobacco product advertisement which, by definition, includes displaying words and pictorial representations which encourage the use or notify the availability or promote the sale of any tobacco product, or promotes smoking behaviour.

[33] The prosecution argues that the wider interpretation of s 36(1) is consistent with upholding the clear statutory prohibition against publishing such advertisements under s 22 of the Act and consistent also with the purposes of the Act, which include to regulate and control marketing, advertising and promotion of tobacco products, discourage people from taking up smoking or using tobacco products, encourage smokers to stop smoking and using tobacco products, discourage those who have stopped smoking from resuming smoking and to reduce peoples exposure to smoke from tobacco products.3

[34] The prosecution also argues that a wide interpretation is consistent with the purposes of the part of the Act containing ss 22 and 36, which include to impose controls on marketing, advertising or promotion of tobacco products, reduce the appeal of smoking and tobacco products, particularly for young people, and further reduce any social and cultural acceptance and approval of smoking and tobacco products.4

[35] The wider interpretation is also consistent with Ministry of Health v Qiao where the defendant in that case was convicted of an offence under s 36(1) for displaying the “Zig Zag man” logo outside his dairy.5

[36] The District Court Judge referred to and applied a decision of then Judge Keane, Director General of Health v Rothmans of Pall Mall (New Zealand) Limited where the Court proceeded on the basis that a breach of s 22 was also a breach

3 Section 3A Smoke-free Environments Act 1990.

4 Section 21 Smoke-free Environments Act 1990.

5 Ministry of Health v Qiao [2017] NZDC 5260.

of s 36(1).6 The charges were dismissed in that case because the Court held the prosecution had not rebutted the reasonable excuses advanced by the defence.

[37] The prosecution also refers to Ministry of Health v Discount Cigarette Supplies Limited, where the charges appear to have been laid alleging offences of displaying tobacco product advertisements in breach of s 22 of the Act, to which guilty pleas were entered.7

[38] Applying these decisions, the prosecution argues that displaying the “Zig Zag man” logo and colourful signage advertising tobacco product accessories are unquestionably the display of words and pictorial representations to encourage the use, notify the availability or promote the sale of any tobacco product, or promote smoking behaviour in breach of s 22 and thereby an offence under s 36(1) on the prosecution’s expansive interpretation of the offence provision.

[39] Alternatively, the prosecution submits that, by displaying advertisements for tobacco product accessories, the defendants were, by implication, displaying advertisements for tobacco products. The prosecution refers to the context of the advertisements, both inside and outside tobacco shops called “the Butt Bucket”, where the products advertised are inextricably linked with the consumption of tobacco. This was the implication drawn in MoH v Qiao where Judge Ruth noted the obvious connection between the Zig Zag man Logo and smoking tobacco.

[40] I do not consider that the decision of D-G of Health v Rothmans, MoH v Discount Cigarette Supplies Limited and MoH v Qiao are determinative of how s 36(1) ought to be interpreted. In all of those cases, the Court was invited, it seems by all parties, to proceed as if a breach of s 22 was also a breach of s 36(1). None of these Courts were invited to discretely assess what act s 36(1) makes an offence.

[41] The plain words of s 36(1) prohibit, and make criminal, the act of publishing any advertisement for a tobacco product. The term “tobacco product” is separately, and clearly, defined in s 2(1) of the Act as a product manufactured from tobacco.

6 Director General of Health v Rothmans of Pall Mall (New Zealand) Limited [1996] DCR 353.

7 Ministry of Health v Discount Cigarette Supplies Limited, Porirua DC, CRI-2013-091-003233, 25 June 2014, Hastings DCJ.

[42] The addition of the words “in contravention of s 22” do not alter the act made criminal by s 36(1). Section 22 prohibits the publishing of a tobacco product advertisement, which is itself separately and broadly defined, and can include advertisements for tobacco products and non-tobacco products. In this way, s 36(1) means that the offence is committed if, without reasonable excuse, the defendant publishes any advertisement for a tobacco product which is also a breach of s 22.

[43] Adopting the s 2(1) definitions of “tobacco product” and “tobacco product advertisement”, and the plain meaning of the words in s 36(1), the offence, in context is: without reasonable excuse, publishing any advertisement for any product manufactured from tobacco which encourages the use, notifies the availability or promotes the sale of any such product, or promotes smoking behaviour.

[44] If Parliament had intended every contravention of s 22 to be a criminal act, it could simply have said so, in the same way ss 36(1A) to s 36(10) establish a range of offences for contraventions of statutory prohibitions in other sections elsewhere in the Act. The same occurs in s 38A which creates a range of infringement offences for breaches of other statutory prohibitions in the Act.

[45] A plain or strict reading of s 36(1) is consistent with the primary requirement that a criminal statute give “fair warning” to citizens of what acts are to be treated as requiring a criminal sanction or response.8

[46] It is also consistent with the principle that if a penal provision is reasonably capable of two interpretations, the interpretation which is most favourable to the accused must be adopted.9

[47] A literal interpretation of s 36(1) is consistent with the requirement to interpret legislation consistently with the rights and freedoms contained within the New Zealand Bill of Rights Act 1990, including the right to freedom of expression.10

8 Principles of Criminal Law, 5th Edition, A P Simester and W J Brookbanks, Thompson Reuters at chapter 2.2.3(2).

9 Sweet v Parsley [1969] UKHL 1; [1970] AC 132 at 149; and Millar v Ministry of Transport [1986] 1 NZLR 660 at 668.

10 Sections 6 and 14 NZBORA; and Hansen v R [2007] NZSC 7.

[48] On this interpretation, Parliament has not created a criminal offence where the advertisement is for something other than a tobacco product. This does not deprive the Director General of Health of remedies. The Director General has a duty to enforce the part of the Act containing s 22.11 Enforcement can be by criminal or civil proceedings. Without deciding the matter, a non-criminal breach of the statutory prohibition in s 22 may be amenable to injunctive relief.12 Section 22 does not have to be read as requiring a criminal sanction to give it “teeth”, and be consistent with the purposes of the Act or that part of the Act.

[49] That leaves the question of whether the defendants have published advertisements for tobacco products by implication. I consider they have not. The defendants operate tobacco shops that lawfully sell tobacco, and tobacco accessories. It is not a criminal offence to advertise tobacco accessories for sale. In this case advertisements for accessories are simply advertisements for products that are legitimately sold in the shop, and always have been.

[50] This is distinguishable from MoH v Qiao where the defendant began selling tobacco products from a dairy that had not previously done so and displayed the Zig Zag man logo next to words reading “discount here”. The defendant admitted he had displayed the logo and sign to let customers know that his shop now sold discounted tobacco.

[51] In the present case I do not regard the fact the defendants altered their signs in response to MoH warning letters as an admission of criminal wrong doing. Firstly, the defendants might have thought it wise to respond to MoH warnings, whether or not they thought the MoH was correct. Secondly, the alterations may be an acceptance of breach of a statutory prohibition rather than that they have committed a criminal offence.

11 Section 41F(1).

12 Laws of New Zealand, Injunctions (online ed) at [3]; Civil Remedies in New Zealand, 2nd Edition, Sir Peter Blanchard, Thompson Reuters, pp 262-265; and Simpson v Attorney General (Baigent’s case) [1994] 3 NZLR 667 at 712 & 717.

Outcome

[52] It follows from the above analysis that neither defendant has committed an offence on the basis of what is alleged in this case, which is the display of advertisements for non-tobacco products.

[53] It might be that the display of advertisements for non-tobacco products (particularly the “Zig Zag man” logo) is a contravention of s 22 of the Act, for the reasons explained by Judge Ruth in MoH v Qiao. Contravention of s 22 is however, not a criminal offence unless the advertisement is for a tobacco product as defined in s 2(1) of the Act.

[54] The defendants will be acquitted of each charge accordingly.

Judge L C Rowe

District Court Judge

Date of authentication: 17/07/2019

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.