Police say they are appealing two decisions where judges have elected to return gang patches confiscated under the Gangs Act.
At least three judges have ruled in favour of returning patches to gang members in the year since the legislation - which criminalises the display of gang insignia in a public place - came into effect in September 2024.
Less than a month later, Judge Joanne Wickliffe ruled in favour of returning gang member Xavier Grey-Gill's patch to him after he pleaded guilty to charges he was facing in the Rotorua District Court.
"Mr Gray-Gill, you have pleaded guilty to three charges today. On each of those, you are convicted and discharged. I have ordered the destruction of the cannabis and the knife, but not your patch. You will get that back," Judge Wickliffe wrote in Gray-Gill's sentencing notes.
More recently, Judge Lance Rowe ruled to return Mongrel Mob member Andrew Leef's patch to him following his arrest after three incidents where he was seen wearing mob apparel and his patch in Tamarunui in December 2024.
Under section 7 of the Gangs Act 2024 a person convicted of displaying gang insignia in public can be imprisoned for up to six months or fined up to $5000.
Following conviction, the insignia is forfeited to the Crown and "may be destroyed or otherwise disposed of as the court ... directs". In each case, the gang members were found - or pleaded - guilty to the charges but requested the patch be returned following the conviction.
Judge Rowe's decision would be cited in Judge Bruce Davidson's decision to return Mongrel Mob member Syd Te Rata's patch to him after he was arrested while riding his motorcycle in central Lower Hutt in the early hours of the morning of 19 April.
"I find that s 7(3)(b) GA provides a broad discretion as to how forfeit gang regalia is to be dealt with. If all that Parliament ever intended was destruction and deprivation from the offender it would have said so.
"Return to an offender is neither expressly or implicitly precluded. It is an open and available avenue of relief for the court as long as proper regard is given, in each the particular case, to the Act's purposes and Parliament's intent. I conclude that the words "otherwise dispose of" are sufficiently wide to include return to an offender," Judge Davidson wrote.
Police to appeal judge's rulings to return confiscated patches
This month, Acting Assistant Commissioner Corrie Parnell confirmed police would appeal two of the three rulings.
"Police sought consent to appeal the decision in Te Rata but it was declined by Crown Law. Police is appealing two other decisions in which the Court has ordered the return of gang insignia to defendants - Gray Gill and Leef - and we await the outcome of those," Parnell said.
Parnell declined to comment further while the matters were still in progress.
Wellington lawyer Chris Nicholls - who represented Te Rata - said the discretion accorded to the court was written "in black letter law" in the wording of the Act.
"It allows a court to decide what ultimately should happen after hearing all the relevant facts that could have a bearing on it. For instance – who owns it, what the circumstances of the person wearing it was, how significant is it to the person [and] how is it connected with what the Gangs Act was trying to achieve," Nicholls said.
Last month Nicholls sought a declaration from the High Court in Wellington that the prohibition of gang insignia was inconsistent with the Bill of Rights Act and the government's international commitments to uphold human rights.
The action was instigated after teenager Mana Brown was prosecuted after being spotted on CCTV cameras wearing a cap that included the word 'Nomad' last year.
Law allows police to search homes without 'evidential foundation' - lawyer
The stated purpose of the Gangs Act 2024 is to "reduce the ability of gangs to operate and cause fear, intimidation, and disruption to the public".
Nicholls said he felt the intention behind the insignia ban was more likely to provide police with a powerful tool to obtain warrants to search private properties without the "evidential foundation" that would otherwise be necessary.
"They wouldn't get - effectively - open access into gang member's private homes unless there was good reason for thinking that an offence had been committed. Now they don't need good reason for thinking that an offence has been committed other than this wearing [of gang] clothing.
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"Wearing a patch, or wearing a hat or wearing a t-shirt when someone's out walking the dog or going to collect the mail or dropping the kids off at school, it's not causing any harm - actually - to the community. It's just an intrusion into private citizen's homes without an evidential foundation that any harm or offending is actually taking place in that home," Nicholls said.
But Justice Minister Paul Goldsmith said he didn't agree.
"This is tough legislation. That is the point. Gang members make up less than one quarter of 1% of the New Zealand adult population, yet are linked to about 18% of serious violent crime.
"We make no apologies for getting tough on law and order," Goldsmith said.
Act 'highly effective' in curtailing gang activity - minister
Goldsmith said he was not able to comment on the judge's decisions but said the law had proved "highly effective" in curtailing gang activity.
"We no longer see gangs in public, intimidating New Zealanders and taking over small towns.
"Since being enacted Police have seized more than 650 insignia items, as well as 120 firearms. There have been more than 250 finalised charges, with many more making their way through the judicial system.
"There are 29,000 fewer victims of serious violent crime compared to when we came into government. We know our plan to restore law and order is working, and going after gangs is an integral part of that," Goldsmith said.
Police Association president Chris Cahill said he did not believe the rulings in favour of returning confiscated patches were undermining the effectiveness of the gang insignia ban.
"The proof of this is the very limited number of breaches. The law is working and generally gang members are abiding by it," Cahill said.
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