The country’s second-highest court has refused a Nomad’s gang member’s challenge to the gang patch legislation, after his conviction for wearing a cap at a public event.

Mana Brown was convicted and discharged for wearing the cap at a community event in the Wellington suburb of Naenae in 2024.

Brown, who lives in Naenae, was in the town centre as part of a community day to celebrate the reopening of the pool, after work to earthquake strengthen it.

The patched member of the Bad Company chapter of the Nomad gang, was caught on council CCTV footage wearing a cap with the words “YG Easty Mad B.C Nomad” backwards.

The council downloaded the footage and reported it to the police, who arrested Brown three days later.

Brown unsuccessfully appealed to the High Court, arguing that it was unfair to tar someone with a conviction for wearing a cap and suggested he should have been discharged without conviction.

But Justice Christine Grice rejected that argument, finding the District Court made no error and dismissing Brown’s lawyer’s suggestion that the gravity of the offending was “zero”.

She also ruled that, given Brown’s criminal history, a conviction wasn’t out of all proportion to the gravity of his offending - the test for a discharge without conviction.

Brown’s lawyer Chris Nicholls then sought leave to appeal that decision, arguing there was a disconnect between the offence and the purposes of the legislation.

In a just-released decision, the Court of Appeal rejected his arguments.

It said Nicholls submitted his client’s offence was one where there was “zero gravity” because it did not engage the purposes of the Act, to “reduce the ability of gangs to operate and cause fear, intimidation, and disruption to the public”.

In their decision Justices Neil Campbell, Rachel Dunningham and Peter Andrew found that the purpose of the Act was to reduce gangs’ ability to operate and cause fear, intimidation and disruption to the public.

As such, it said the prosecution didn’t have to prove that displaying gang insignia in public actually caused fear or intimidation.

It ruled that the new law recognised the potential to cause fear and intimidation, and the banning of gang patches was, in part, concerned with preventing that possibility.

The legislation also aimed to stop the display of gang insignia as a status signal to attract recruits and to limit the ability of gang members to recognise members of rival gangs.

“In summary, Parliament had determined that displaying gang insignia in public places can cause harm, and it aims to prevent that harm through prohibition. Parliament frequently prohibits behaviour that carries risks of social harm; it is no answer to say the harm did not eventuate in the particular case.”

Accordingly, the Court of Appeal said it was satisfied the lower courts didn’t err in their assessment of the gravity of the appellant’s offending.

As a result, it found there was no question of general or public importance and therefore no reason to grant leave to bring a second appeal against conviction.

Nicholls told NZME he was disappointed by the decision.

“The Court of Appeal seems to regard it as irrelevant that no actual harm was caused by Mr Brown.”

Catherine Hutton is an Open Justice reporter, based in Wellington. She has worked as a journalist at the Waikato Times and RNZ. Most recently she was working as a media adviser at the Ministry of Justice.