By Catherine Hutton, Open Justice reporter of 
Mana-Apiti Brown of Lower Hutt. Photo: Supplied/NZ Herald
A legal challenge to the so-called gang patch ban has compared the controversial legislation to Nazi Germany and the Taliban.
Lawyer Chris Nicholls is asking the High Court at Wellington to overturn the conviction of a young Māori man called Mana-Apiti Brown - a patched member of the Bad Company chapter of the Nomad gang.
It's believed this is the first time an appeal to the new law, which was introduced in November, has been heard by the High Court.
Brown was convicted and discharged by a District Court judge in December for wearing the Nomads cap in the Lower Hutt suburb of Naenae.
Caught on camera
The 19-year-old was seen wearing the cap on council CCTV footage, standing on the footpath outside a Naenae cafe on the afternoon of December 7, 2024.
Brown, who lives in Naenae, was in the town centre as part of a community day to celebrate the reopening of the pool, which had been closed for several years while it was earthquake-strengthened.
The council downloaded the footage and reported it to police, who arrested Brown three days later.
Brown told police the cap, which has the words, "YG Easty Mad B.C Nomad" in red writing with a yellow border, was his uncle's name in the gang's writing and colour.
At a hearing in the Lower Hutt District Court, Brown admitted a charge of wearing gang insignia in a public place and sought a discharge without conviction.
Judge Michael Mika refused Brown's request saying he wasn't satisfied the consequences of a conviction outweighed the gravity of the offending. Brown was convicted and discharged and the cap was seized.
No one denies that Brown is a gang member or that he was wearing the cap.
But Nicholls argues this case runs to something deeper - the erosion of an individual's rights.
Not only does the new law infringe on the Bill of Rights and International Human Rights standards, but it is also inherently discriminatory, given Māori were over-represented in the gang population and therefore were more likely to be targeted with this law, he said.
"To tar someone with a criminal conviction, punishable for up to six months' imprisonment, just for wearing a cap is entirely disproportionate and the message needs to be sent to Parliament that it's not okay," he said.
The court heard that in passing the legislation Parliament had considered the implications on gang members' ability to express their identity, but considered these of "low value".
Nicholls said to describe gang patches and clothing as "low value" was inconsistent with what was known about gang culture.
Nicholls said the lessons from history should serve as a warning for laws like this, citing international precedents including Nazi Germany, Saudi Arabia and the Taliban.
He said when the Nazis came to power they didn't like the way Jews dressed and presented themselves, where they went to church.
The Nazis wanted to cause maximum damage to Jews just like the Justice Minister Mark Mitchell had said he wanted to inflict on gangs, he said.
Previous generations had lost their lives fighting the Nazis so people could express themselves freely, he said.
He also referred to Saudi Arabia and the Taliban in Afghanistan which criminalised women if they didn't adhere to strict dress codes.
Nicholls warned that if this conviction is allowed to stand it will set a disturbing precedent, that an individual in New Zealand will be criminally penalised solely for their choice of clothing.
And police may invoke penal measures not for actions, but for expressed affiliations.
George Fitzgerald, representing the police, said it would be inappropriate for the court to overturn Brown's conviction.
Parliament had been clear that the purpose of the new law was to reduce gang operations that cause fear, intimidation and disruption to the public.
He said rather than seeking to overturn the conviction a more appropriate course of legal action might have been to seek a "declaration of inconsistency".
Fitzgerald said Brown could have defended the charge, and didn't. While he accepted the gravity of offending was low in this case, the impact of a conviction on Brown was only speculative.
Fitzgerald said there was nothing untoward about council volunteers passing the footage on to police.
Finally, Fitzgerald said there had been no miscarriage of justice and the consequences of a conviction weren't out of proportion with the offending.
Justice Christine Grice reserved her decision.
* This story originally appeared in the New Zealand Herald.
