A bungle at the border formed the basis for a defence in which a visiting Kiwi couple with young children escaped cannabis importation and false declaration convictions this week.

Documents viewed by Cook Islands News show conflicting statements by two border security staff regarding medicinal cannabis.

While the defendants escaped convictions, the case raised a number of questions in terms of how Cook Islands Customs operates.

As defence lawyer Mark Short said in court, it was a matter of “he said, she said” . . . “Unless you have it on CCTV, it is hard to see who is telling the truth.”

Cook Islands Customs stand by their practices despite claims the couple received a less than warm reception from their staff at Rarotonga International Airport.

Anna Louise Sturley, who appeared alongside her partner Kingi Ture Otene in the Criminal Court at Avarua on Monday, said the couple were asked by border staff to redo their declarations as they were wrong.

“Upon doing them a second time I was very flustered and well under the pump by airport staff and situations around me, this time ticking the wrong box.

“I had tried to ask the airport for help and got none. I just wanted to get through to the next room where there seemed to be more staff available. There I was treated by a mixture of good staff and s..t staff who finally abled us into Rarotonga.”

Alan Richardson, acting controller, comptroller and director of Ministry of Finance and Economic Management, says in that working environment, there will inevitably be rare occasions where a passenger’s expectations are not met, however every effort is made to minimise these occurrences.

“The Customs controlled area at the airport is staffed by employees of several border protection agencies including Customs, Immigration, Biosecurity and Airport Security,” said Richardson.

“When flights arrive, this is a very busy work environment with the need to clear up to 300 passengers and crew in as short a timeframe as possible.”

However, the question remains as to the conflicting statements of a customs officer and a biodiversity officer.

While Otene and Sturley did not dispute they brought cannabis into the Cook Islands, Otene was advised by his brother Damien Otene that medicinal cannabis was allowed in the Cooks if a medical certificate or prescription was provided by a doctor to confirm if it was for medicinal purposes.

Damien said he specifically asked the Customs officer if his brother could bring medical cannabis into the Cook Islands.

“They said yes, as long as he got the paper work from the doctor,” he said in a statement to police.

Damien Otene flew into Rarotonga a day before his brother and called him to say medicinal cannabis was allowed into the country.

Richardson said the customs officer involved made a sworn statement which was presented to the court, in which they stated they did not recall cannabis being discussed.

“Customs are satisfied that the statement is the officer’s recollection of the discussion that took place, therefore no further investigation is warranted.”

A witness statement obtained by the newspaper paints a different picture.

A Ministry of Agriculture advisory officer, in a statement to police said, in regards to a conversation overheard between Damien Otene and the Customs officer: “During their conversations I heard a passenger asking the Customs officer if the cannabis medications are allowed into the Cook Islands.”

“I heard the Customs officer telling the passenger yes, it is allowed into the Cook Islands provided that they have a prescription from the doctor.

“I was just standing close to the officer while he was advising the passenger regarding the cannabis medications.

“I also told my supervisor of what I heard the Customs officer advising the passenger relating to the cannabis medicine into the Cook Islands.”  

The defence argued Kingi Ture Otene brought medical cannabis in a prescribed container similar to prescription medicine based on the assurance given by his brother who relied on the advice of the Customs officer.

He also supplied a letter from his doctor in New Zealand which outlined his treatment and prescribed medicinal cannabis. He had experienced back pain since at least 2013, with an MRI in 2017 revealing disc changes, at which time surgical management was considered.

A medical management approach was decided upon and subsequently Kingi Ture Otene had received various methods of pain relief with varied results. Subsequently a trial of medicinal cannabis had proven effective and continued to be subscribed.

After the defendants were stopped and questioned at the airport, a customs officer went to see Damon Otene in the terminal waiting area and he confirmed their story about what he had been told by the customs officer.

Richardson says the guilty pleas entered, and the court’s acceptance of the pleas indicate that Customs policies and procedures are “robust”.

“As noted in the decision of Chief Justice Patrick Keane there was some inconsistency in the statements of the Customs and Biosecurity staff involved.

“I have every confidence that both staff members have presented the facts as they believed them to be, and it is not uncommon in crowded environments for there to be differences of recollection or understanding of events or conversations.”

An interesting anomaly, as presented by the defence, was the police questioning.

When interviewing Sturley, police asked if she had gone to search engine Google or the website to find out if they could bring cannabis into the Cook Islands, and she said she hadn’t.

Short pointed out that if the defendant had Googled the information, she would have been misled because information from Google advises that it is legal to bring medicinal cannabis into the Cook Islands.

Short argued the consequence of a conviction would be out of proportion to the gravity of the offence.

On Sunday February 5, the defendants and their young children arrived in Rarotonga and were directed to customs after declaring they had excess tobacco products. 

Sturley also declared she was carrying goods on behalf of another person, and when questioned, Kingi Ture Otene advised she was carrying his medication, and Sturley produced a copy of a prescription for medicinal cannabis. 

A plastic container containing 5 grams of dried cannabis material was then produced by the defendants.

So the question remains as to the baggage search which revealed a cannabis pipe, discovered in a hair dye box.

The defendants were asked about the pipe and Sturley said it was used for drinking alcohol. Kingi Ture Otene said it was used by him to smoke marijuana.

The defendants had failed to declare the medicinal cannabis and pipe on their arrival cards.   

CJ Keane, in making his decision, said although they did not declare the cannabis, they were frank in that they were carrying medicinal cannabis, and understood they were entitled to.

He said convictions for cannabis importation were serious and he would not consider it right to enter convictions.

“They are a young couple with no previous convictions, a business to run, two young children, they should not carry convictions.”

As for the pipe, it was an offence, but should not stand in the way of a discharge, he said.

Richardson says all Customs staff undertake regular training in their area of operation as well as on general matters affecting Customs.

All Customs airport staff complete a comprehensive six-week induction training course prior to commencing work at the airport.

This training includes training on prohibited goods, he says. 

They have to sit and pass tests as part of their training.

“I would advise that cannabis (medicinal or otherwise) is a class b or c drug (depending on its state) under the Narcotics and Misuse of Drugs Act 2004, consequently it is a prohibited import,” Richardson said.

“Notwithstanding this classification, under certain circumstances medicinal cannabis is able to be imported through TMO.

“Cook Islands Customs considers that this is a timely reminder to travellers that items which may be permitted in their country of residence may not be permitted in the Cook Islands. “If in doubt travellers should confirm the legal status of any goods before they travel, preferably in writing for avoidance of doubt."