Background
On 26 November 2024, Xavier Gray-Gill was stopped by police in Rotorua while walking his dog, visibly wearing two leather vests bearing Black Power gang insignia. When he saw the patrol car he fled, was found hiding in a nearby driveway, and attempted to conceal the vests beneath a jersey. He was arrested and found in possession of a pocket knife and cannabis. He was charged under s 7(1) of the Gangs Act 2024 with knowingly displaying gang insignia in a public place without reasonable excuse, promptly pleaded guilty, and was convicted and discharged under s 108 of the Sentencing Act 2002.
At sentencing, the police sought a destruction order for both vests. District Court Judge Wickliffe ordered destruction of the cannabis and knife but not the patches, indicating Mr Gray-Gill would “get that back.” When the police sought clarification, her Honour amended her direction to record that the insignia was forfeited to the Crown but was “not to be destroyed.” The Solicitor-General appealed that direction to the High Court, contending that once forfeiture occurs automatically upon conviction, the court’s only remaining function under s 7(3)(b) of the Gangs Act 2024 is to direct destruction or some other form of permanent disposal — not to prohibit destruction or authorise return of the property.
The appeal was heard alongside the companion case Solicitor-General v Leef [2026] NZHC 1628, which raised the same statutory question. Becroft J heard both appeals together and appointed Morgan KC as amicus curiae to ensure comprehensive argument. Because the Leef judgment addressed the central interpretive question in full, this judgment applies those conclusions to the facts of Gray-Gill’s case.
The Court’s Holding
Becroft J upheld the Solicitor-General’s appeal. The Court first confirmed jurisdiction, holding that an order under s 7(3)(b) of the Gangs Act 2024 — directing how forfeited insignia is to be destroyed or disposed of — constitutes a “sentence” within the broad definition in s 212 of the Criminal Procedure Act 2011, being “any method of disposing of a case following conviction.” The conviction-and-discharge outcome did not preclude appeal; the disposal order is intrinsically connected to the sentencing process and, if necessary, the appeal could also have proceeded as a question of law under s 296 of the CPA.
On the merits, the Court applied its analysis from Leef and held that s 7(3) of the Gangs Act 2024 operates as a strict two-step process. First, forfeiture to the Crown is automatic and absolute upon a guilty plea or conviction under s 7(1) — the defendant irretrievably loses the insignia at that moment. Second, the court may then, on application, direct whether the forfeited insignia is to be destroyed or “otherwise disposed of” in some other permanent manner. Crucially, s 7(3) does not permit the insignia ever to be returned to the defendant; the two-step process cannot be reversed. A direction that the insignia is “not to be destroyed,” without specifying an alternative means of disposal, is not a lawful option available to the court.
The Judge’s directions were accordingly quashed, save for her confirmation that the insignia is forfeited to the Crown. The matter was remitted to the District Court for Judge Wickliffe to properly consider the police’s destruction application — and any competing application by other parties — consistently with the Leef ruling, with the firm constraint that return to Mr Gray-Gill is not an available outcome.
Key Takeaways
- Under s 7(3)(a) of the Gangs Act 2024, forfeiture of gang insignia to the Crown is automatic and absolute upon conviction or guilty plea — no court order is required and the defendant has no residual property right in the items.
- The court’s role under s 7(3)(b) is limited to directing destruction or some other form of permanent disposal; it cannot issue a bare direction that insignia “not be destroyed,” nor order the insignia returned to the defendant or any person acting on their behalf.
- A disposal order under s 7(3)(b) qualifies as a “sentence” under the broad definition in s 212 of the Criminal Procedure Act 2011, making it subject to a prosecutor’s sentence appeal under s 246, even where the underlying outcome was a conviction and discharge rather than a custodial or monetary sentence.
- This decision sits alongside Solicitor-General v Leef [2026] NZHC 1628, which contains the full statutory analysis; together the two judgments resolve a live issue across multiple District Court proceedings throughout New Zealand.
Why It Matters
The Gangs Act 2024 is relatively new legislation and these companion High Court decisions provide the first authoritative appellate guidance on how the mandatory forfeiture and disposal regime in s 7(3) operates. By confirming that forfeiture is automatic and that return of insignia to a convicted defendant is categorically unavailable, the Court removes the discretion that some District Court judges had assumed they possessed, and gives police and prosecutors a clear framework for seeking disposal orders consistently across the country.
The judgments also have broader procedural significance: by holding that disposal-of-property orders connected to conviction are “sentences” for appeal purposes, the Court preserves meaningful prosecutorial appellate oversight over a range of post-conviction property orders — not just gang-patch cases — and resists an unduly technical reading of appeal jurisdiction that would otherwise insulate erroneous District Court directions from correction.