The Crown's appeal against the Nelson Red Devil gang charges ruling has stumbled at the first hurdle.
Crown solicitors began appeal proceedings last week against a High Court decision to throw out charges against 21 alleged members of the motorcycle club.
Police had staged the false arrest and prosecution of an undercover officer in 2010 - and Justice Simon France said it was an abuse of court processes.
Yesterday Justice France ordered an urgent hearing in Nelson later this month. The Crown filed a notice asking him to refer his decision to the Court of Appeal on a question of law.
It is understood the proposed question from the Crown is: "Was he wrong to stay the proceeding?" As this is not considered a question of law, Justice France wants to discuss how the question should be restated.
The group was facing a range of gang-related charges, including drug offences and being part of an organised criminal group.
Justice France's ruling last month allowed them to walk free. But if he decides to refer his decision to the Court of Appeal they could face a retrial.
The 21 were targeted in a sting known as Operation Explorer. Police used two undercover agents to pose as a couple and infiltrate the Red Devils, who they believed were set to become a chapter of the Hells Angels.
Fearing their officer, known as Michael Wiremu Wilson, was about to be exposed, they faked a search warrant on his lockup and, later, an arrest to boost his criminal credentials.
After Justice France's rulings, methamphetamine charges laid against senior Auckland Hells Angels member Phillip Schubert were also thrown out.
The bungled operation was overseen by the Organised and Financial Crime Agency's Detective Inspector Grant Wormald, who is also under fire for the joint raid on Kim Dotcom.
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