When Parliament says gang insignia “is forfeited to the Crown,” citizens are entitled to assume those words mean what they say. Yet on 11 August the District Court ruled otherwise. Judge Lance Rowe directed that a Mongrel Mob vest, seized under the Government’s new Gangs Act 2024 and forfeited following a guilty plea, should nevertheless be returned to its owner, Andrew “Andy” Leef.
Whether or not one agrees with the policy behind the Act’s provisions, the decision should alarm anyone who believes Parliament’s unambiguous words should be respected.
The statute could not be clearer
Section 3 of the Act sets out Parliament’s purpose in enacting the law: “to reduce the ability of gangs to operate and cause fear, intimidation, and disruption to the public by … prohibiting the display of gang insignia in public places.”
Section 7(1) makes it an offence to “knowingly, and without reasonable excuse, display gang insignia … in a public place.”
Section 7(3) then spells out the consequence:
“If a person pleads guilty to, or is convicted of, an offence against subsection (1), the gang insignia concerned–
(a) is forfeited to the Crown; and
(b) may be destroyed or otherwise disposed of as the court … directs.”
Parliament included exceptions in section 8 for artistic, educational, and law enforcement uses – even pre-existing headstone carvings. But not for personal attachment, whakapapa or “family crest” arguments.
Section 7(3)(a) is the operative provision: the insignia “is forfeited to the Crown.” It seems clear enough that this means ownership changes hands automatically and the offender loses all rights. Section 7(3)(b) then addresses what the Crown should do with the forfeited property. “Destroyed or otherwise disposed of as the court…directs” gives the Crown court flexibility about whether it destroys the item – or disposes of it in some other court-approved way – for example, retention for police training, donation to a museum, even sale if the insignia can be removed.
What it does not do is reopen the question of who owns it. Parliament’s words are mandatory. To return a vest, a court must either treat a guilty plea as if it did not happen, or re-cast “is forfeited” as “may be forfeited.”
The decision
In his reserved decision, Judge Rowe recorded that Mr Leef had described his patch as his “family crest,” explaining that he had been a Mongrel Mob member for 25 years and regarded the gang as his family. “These comments or submissions,” the judge said, “at first blush, could be recognisable in tikanga terms as consistent with expressions of mana and whanaungatanga.” Relying on the Supreme Court’s obiter in Ellis v R (Continuance), he added: “It is now well established that tikanga is part of the common law of New Zealand.” (at [69] - [70])
The Judge went on to acknowledge he had “no detailed analysis” of how tikanga might bear on Mr Leef’s rights and obligations, but said it was not “irrelevant.” In his words, tikanga may “inform the value to be ascribed to a particular item because of its connection to a defendant’s whakapapa or whānau relationships.” (at [76]) He also expressed a view that gangs are “not a product of te ao Māori” but may in part have arisen from abuse in State care that disconnected Māori from whakapapa and identity. Yet no evidence of these matters – including of tikanga itself – was before the court. (at [75])
Undeterred, Judge Rowe held that forfeiture under s 7(3)(a) did not confer absolute ownership on the Crown, describing s 7(3)(b) as a form of “relief against forfeiture.” (at para [88]) He invoked the principle of legality to protect property rights absent clear statutory words, and he leaned on the New Zealand Bill of Rights Act 1990 (NZBORA) – canvassing rights against disproportionate punishment (s 9), freedom of expression (s 14), security against unreasonable seizure (s 21), and natural justice (s 27) – and on the Supreme Court’s controversial reasoning in its 2021 ‘Three Strikes decision,’ Fitzgerald v R discussed below, to reach a rights-consistent outcome under the NZBORA’s section 6..
By a “narrow margin,” he concluded that destruction would be disproportionate. He therefore directed that the vest, “having been forfeited to the Crown, is to be disposed of by being returned to Mr Leef on his clear understanding that it will not be displayed in public.” (at [114])
Where the reasoning goes wrong
Unsurprisingly, Judge Rowe’s decision has proved controversial. Parliament framed two distinct steps in section 7(3). Section 7(3)(a) is the operative provision: it provides that gang insignia “is forfeited to the Crown.” Section 7(3)(b) then deals with what the Crown may do with the forfeited property. It must be “destroyed or otherwise disposed of as the court … directs.”
Yet the Judge has treated subsection (b) as a gateway to “relief” from forfeiture imposed by (a), turning Parliament’s statutory sequence on its head.
Similar arguments to Mr Leef’s are now being tested elsewhere. In a related case in the Lower Hutt District Court, a defendant named Te Rata also argued that section 7(3) could extend to returning a patch to its owner. My former Legal Research Foundation colleague, Professor Kris Gledhill, reportedly told 1News that this was a “credible” interpretation. In his view, the phrase left it entirely to the discretion of the judges – including to hand a patch back.
But that view collapses on contact with the text and the purpose of the Act. If judges possessed entirely unfettered discretion over forfeited property, Parliament’s clear wording would be undermined by judicial preference. Once insignia is “forfeited to the Crown,” ownership has changed hands; disposal powers must necessarily about what the Crown does with its property, not a licence for the court to undo forfeiture.
How is it, then, that the District Court can ignore Parliament’s clear words? The explanation lies not in the Gangs Act at all. It lies in the Supreme Court. Two of its most controversial decisions have taught lower courts to treat even Parliament’s clearest statutory commands as negotiable.
The Fitzgerald move: “rights-consistent interpretation” as statutory redrafting
The first doctrinal escape route runs through the Supreme Court’s Fitzgerald decision. There, Parliament’s ‘Three strikes’ law directed the High Court to impose the maximum penalty for a third qualifying offence “despite any other enactment.” The Supreme Court majority held it would be “manifestly unjust” to apply Parliament’s words in full, so they read in an unstated qualification.
Justice Young, dissenting, was blunt: the majority’s approach was “a flat contradiction” of Parliament’s words. Yet the majority carried the day.
As I explained in Who Makes the Law? Reining in the Supreme Court, this was not a legitimate application of NZBORA’s section 6. It was judicial rewriting: stretching statutory language “beyond breaking point”.
Judge Rowe expressly relied on Fitzgerald when construing section 7(3)(b) as allowing “relief” from forfeiture. What the Supreme Court had done with sentencing, the District Court now did with gang patches: treating Parliament’s mandatory language as negotiable.
Once judges learn that words like “must” or “despite any other enactment” can be read down if the outcome feels unjust, a forfeiture clause such as s 7(3) can be recast as discretionary.
The Ellis move: tikanga everywhere, framework nowhere
Ellis provides the second escape route. The decision is also well known. Unprompted by the parties, the Supreme Court declared tikanga potentially relevant to any case, whether or not the facts bore a Māori connection.
Yet the majority declined to articulate any principled framework. Chief Justice Winkelmann spoke of an “infinite variety of factual circumstances.” Justice Glazebrook declined to “attempt a reformulation of the test.” Justice Williams conceded the courts “cannot authoritatively declare tikanga for general purposes”.
Emeritus Professor Peter Watts KC has rightly called Ellis a “revolution.” By effectively overthrowing the statutory foundations that made English common law the basis of New Zealand courts’ jurisdiction since 1841, and instead declaring tikanga potentially relevant to any legal question, the Court has “thrown a cloud over the entire body of existing case law and the entire statute book.”
The framework in decisions like Public Trustee v Loasby (1908) 27 NZLR 801 (SC) had provided a principled approach for recognising Māori custom within the common law. Yet the Supreme Court jettisoned it without replacement. In doing so, the Ellis decision left judges free to invoke tikanga case by case without clear limits.
That is how a District Court can now treat a gang patch as a “family crest” and invoke tikanga to neutralise a statutory command. But the fault lies less with Judge Rowe than with the doctrinal vacuum handed down from the Supreme Court. Without a principled framework, lower courts are left to improvise, even to the point of building legal consequences on speculation rather than proof.
Putting the moves together
Add Ellis to Fitzgerald, and the path to Judge Rowe’s decision becomes clear. An offender pleads guilty under section 7(1). Ordinarily, the vest is forfeited. But when the offender pleads that his patch is a “family crest” with cultural resonance, the Ellis move makes tikanga relevant everywhere, and the Fitzgerald move makes even mandatory statutory commands subject to judicial recalibration.
The outcome? Parliament’s bright-line rule yields to a judicial value judgment.
This is not about whether banning gang patches is a wise policy. Reasonable people differ. The issue is constitutional.
When Parliament writes “is forfeited to the Crown,” citizens are entitled to assume that is what will happen. If a District Court can instead treat forfeiture as optional, the ordinary voter can no longer read the statute and know the law. Legal certainty – a cornerstone of the rule of law – evaporates.
This is exactly the danger warned of in Who Makes the Law? Each time the Supreme Court stretches language or displaces doctrine, it signals to lower courts that clear statutory words or established common law precedent are elastic. The result is precisely what we see here: confusion in the lower courts and declining public confidence in the neutrality of law.
In fairness, the problem is not tikanga itself. Tikanga deserves respect as an important part of our legal heritage. The problem is the Supreme Court’s failure in Ellis to recognise and respect Loasby’s guardrails for when and how tikanga operates within the common law. Without the Loasby rule of recognition, tikanga becomes a free-floating licence for judicial value judgments. That undermines tikanga’s status as much as it undermines the rule of law.
The constitutional remedy
What should be done? Parliament cannot shrug. When courts stretch or ignore clear words, corrective legislation is legitimate and necessary.
The most urgent reform is specific to Ellis. Parliament should overturn the decision and reinstate the Loasby framework under which tikanga could only be recognised as law when it met the settled requirements. That approach had the virtues of clarity, predictability and respect for both tikanga and the common law.
Parliament may also need to amend section 7(3) of the Gangs Act to address the uncertainty created by Judge Rowe’s decision. That should not be necessary. But in the current judicial climate, clarity must sometimes be made clearer still.
The Leef decision may be only one case. But it signals a larger story. The Supreme Court’s doctrinal looseness in Ellis and Fitzgerald has filtered down to the District Court. Parliament wrote a simple two-step process: offence, then forfeiture. The court has turned it into a vibe-check.
Law is not meant to work that way. In a democracy, citizens deserve to know that a guilty plea under a bright-line statute means what it says.
If “forfeited to the Crown” can now mean “returned to the defendant,” the problem is not a single District Court ruling. It is a jurisprudence, seeded in the Supreme Court, that has taught judges and the public alike that even Parliament’s clearest words no longer anchor the law.
This column was first published in LawNews on 21 September 2025.