Fehling v Police
[2025] NZHC 1757
•30 June 2025
IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE
CRI-2025-418-05
[2025] NZHC 1757
BETWEEN FRIEDRICH JOACHIM FEHLING
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 26 June 2025 Appearances:
F J Fehling in person (via AVL) G L Collett for Respondent
Judgment:
30 June 2025
JUDGMENT OF EATON J
FEHLING v POLICE [2025] NZHC 1757 [30 June 2025]
Introduction
[1] Friedrich Fehling seeks leave to appeal Judge Gilbert’s decision declining to dismiss a charge of speaking threateningly, and what he considered to be a “sentence of unlawful imprisonment”, arising from a period in custody at the Greymouth District Court after Mr Fehling was remanded in custody following his repeated refusal to enter the dock as directed. Mr Fehling has filed two notices of appeal. Each record that he appeals:
against a sentence on 15/1/2025 of unlawful imprisonment for 1.5 hours due to lawfully (per s 147 Criminal Procedure Act) refusing to enter pleading “dock”…
and against the refusal to follow (“observance” per s 27(1) BORA) the principles of natural justice by preventing the defendant to present/explain this s 147 provision and the main reason for its invocation…
[2] The notices of appeal record reliance on s 248 of the Criminal Procedure Act 2011 (the Act).
[3] Mr Fehling also applied to this Court for a stay of the District Court prosecution with reliance on the High Court Rules 2016.
Jurisdictional obstacles
[4] On 8 April 2025, I issued a minute to the parties, identifying what I considered to be the jurisdictional obstacles to this appeal. In particular, and as recorded in the minute:
(a)Mr Fehling has not been convicted so has no right of appeal under s 248(1)(a) of the Act;
(b)Mr Fehling has not been sentenced so has no right of appeal under s 244 of the Act;
(c)There is no right of appeal against a Court’s decision under s 147 of the Act not to dismiss a charge; and
(d)The High Court is unable to hear, at first instance, an application to stay a District Court prosecution.
[5] I suggested that in light of the jurisdictional obstacles, Mr Fehling might see fit to both abandon the appeal and withdraw his stay application, or alternatively to file submissions addressing the question of jurisdiction. Mr Fehling has since abandoned the stay application, but he does not abandon the appeal. Rather he has filed submissions dated 5 April 2025, 9 April 2025, 16 April 2025 and 20 May 2025 and he appeared on his own behalf to present oral argument in support of his appeal.
Allegations
[6] On 13 December 2024, Mr Fehling went to the Westland District Council to speak to someone in relation to freedom camping. He was advised that recent submissions had been closed, and that he could write to the Council. Mr Fehling allegedly began to raise his voice and became agitated with the staff member, insisting that he be permitted to speak to an appropriate person about freedom camping. When told he could not, he is alleged to have replied, “if your staff pick me up for freedom camping, I will be blowing up the council building and setting the Council and Council staff on fire”. He was charged under s 21(1)(a) of the Summary Offence Act 1981 with what is known as speaking threateningly.
First appearance – a step too far
[7] On 15 January 2025 Mr Fehling made his first appearance in the Greymouth District Court on that charge. He was asked and then told by the presiding Judge to go into the dock. He told the Judge that was “a step too far” and sought to explain that he was “applying for general dismissal of the charges per s 147 Criminal Procedures Act 2011 before any pleading”. After repeated directions from the Judge that Mr Fehling enter the dock, he was warned that he would be remanded in custody. Mr Fehling would not enter the dock. The Judge then directed that Mr Fehling be taken into custody for failing to comply with the Judge’s direction. The Judge indicated that Mr Fehling would remain in custody “until I decide I will re-call you”. The Judge then inquired as to whether there was a duty solicitor available to see Mr Fehling.
[8] When Mr Fehling reappeared around the time of the mid-morning adjournment, he was remanded at large to 11 March for a case review hearing and directed to file submissions in support of his s 147 application.
The s 147 hearing
[9] On 11 March, Mr Fehling again appeared in the Greymouth District Court. A different Judge was presiding. In advance, Mr Fehling had filed what the Judge described as a “closely written four-page document” in support of the s 147 application. The Judge confirmed he had read Mr Fehling’s submission and three formal written statements relied upon by the prosecution. The Judge recorded that Mr Fehling had indicated that he did not understand the s 147 test because he is not a lawyer. The Judge explained the test and in an oral decision declined the application.
[10] A not guilty plea was entered to the charge and Mr Fehling was remanded at large for a Judge-alone trial in the Greymouth District Court on 21 July. The Judge advised Mr Fehling to seek legal advice.
[11] The following day, 12 March, Mr Fehling filed notices of appeal in this Court and on 28 March, filed his application for a stay.
Submissions
Mr Fehling’s submissions
[12] Although Mr Fehling has filed extensive submissions following my minute, he did not address the jurisdictional hurdles I had identified. In written submissions Mr Fehling says that any jurisdictional barrier to his appeal amounts to an “unlawful disabling” of his right to apply for judicial review.
[13] It seems the primary complaint in relation to the refusal to dismiss the charge is that Mr Fehling was not afforded the opportunity to orally present submissions. He contends this was a breach of natural justice. As to the merits, Mr Fehling’s position is that there is information in the summary of facts and a witness statement that establishes there is no case for him to answer. For example, he says that the wording
of the threat attributed to him by the summary of facts is in the continuous tense, which German speakers do not use (Mr Fehling is a German speaker). He also submits that the prosecution witnesses have committed perjury and by way of example observes that the complainant said, “she thinks ‘he had facial hair’ despite an obvious beard with plait (established for decades), and falsely identifies his long hair having a plait instead.” Mr Fehling alleges various breaches of the New Zealand Bill of Rights Act in relation to the time he spent in custody and records that he is seeking compensation for perjury and exemplary damages.
[14] In his oral submissions Mr Fehling focussed on two arguments. First that the Supreme Court decision in Taueki v Police1 is erroneous and secondly that the charge, referred to by Judge Gilbert as one of “speaking threateningly” does not exist in the Summary Offences Act and that the Judge in creating a new offence is denying Mr Fehling’s right to freedom of expression2 and his right not to be liable to conviction of an offence which did not constitute an offence at the relevant time.3
Crown’s submissions
[15] Ms Fulton, for the respondent, submits that the jurisdictional issues as raised in my minute are an immutable obstacle to Mr Fehling’s appeal. She submits that it is only in exceptional circumstances that this Court would intervene and consider the failure to dismiss a criminal by way of judicial review, and that this is not one of those cases. She observes that notwithstanding the Court having forewarned Mr Fehling as to the jurisdictional obstacles he has elected to pursue an appeal rather than judicial review.
Discussion
[16] Mr Fehling purports to bring his appeal under s 248(1)(a) of the Act, which provides:
248 How to commence first appeal
1 Taueki v Police [2021] NZSC 125 at [3].
2 New Zealand Bill of Rights Act 1990, s 14.
3 New Zealand Bill of Rights Act 1990, s 26(1).
(1) A convicted person or prosecutor commences a first appeal under this subpart by filing in the first appeal court—
(a)a notice of appeal, if the court appealed to is the District Court, the High Court, or the Court of Appeal; or
…
(emphasis added)
[17] Mr Fehling is not a convicted person and accordingly has no right of appeal under s 248(1)(a). Similarly, he has no right of appeal against sentence under s 244 of the Act. He has not been sentenced. The brief custodial remand on 15 January was not as a consequence of a sentence. As I indicated in my minute, it appears the Judge was acting under s 10(2)(b) of the Contempt of Court Act 2019.
[18] A defendant does not have a right of appeal against a refusal to dismiss a charge.4 Rather, a defendant whose application for discharge is dismissed and who is later convicted can challenge the conviction on the grounds earlier relied on to support the dismissal application. 5 Mr Fehling considers this to be contrary to the right to apply for judicial review contained in s 27(2) of the New Zealand Bill of Rights Act 1990.
[19]Mr Fehling submits the Supreme Court was clearly wrong to find that:6
Section 296 confers a right of appeal in relation to the dismissal of a charge under s 147; it does not extend a similar right in respect of the refusal of an application for dismissal. To the extent to which the applicant’s challenge is to the refusal to discharge him at common law, he faces the same problem. Assuming for the moment that there is jurisdiction to grant such a discharge, the Act does not provide for a right of appeal against a refusal.
[20] Mr Fehling submits that the decision to decline his s 147 application was a determination of the charge. But the law is clear. A decision declining to dismiss a charge is not a determination of the charge because it does not have the effect of
4 Taueki v Police, above n 1, at [3], footnotes omitted; citing Lyttle v R [2019] NZCA 329 at [35]– [36]; Rowell v Commissioner of Inland Revenue [2016] NZCA 471 at [19]–[23]; D (CA716/2015) v R [2016] NZCA 190 at [20]–[23]; and Cameron v R [2021] NZSC 110 at [63].
5 Cameron v R, above n 4, at [63].
6 Taueki v Police, above n 1, at [3].
bringing the proceeding to an end.7 It does not impact the conduct of the trial. The unsuccessful defendant’s remedy is an appeal in the event of conviction.
[21] Decisions of the District Court are amenable to judicial review by this Court. But judicial review has a limited role in the context of criminal pre-trial matters:8
The need to avoid collateral challenges interrupting the conduct of criminal prosecutions means that it is necessary for there to be compelling reasons to step outside the statutory framework within which criminal proceedings are designed to be conducted, which of course provides for “carefully crafted appeal rights”.
[22] In Angus v District Court, Clark J summarised the applicable principles in the context of judicial review of s 147 decisions, relevantly:9
(a)Judicial review of a District Court decision under s 147 of the Act is only appropriate in rare cases where, by reason of the nature of the error, the intervention of the High Court is imperative.
(b)Even if an identifiable question of law, beyond sufficiency of evidence, is said to arise the power to review must be sparingly exercised and truly exceptional circumstances will be required.
(c)The policy factors weighing against disruption, delay and fragmentation of the criminal process through recourse to the High Court will not preclude judicial review of an error that has the potential to lead to serious injustice that cannot be corrected on appeal.
[23] This is not a case where the intervention of the High Court is imperative. There is no discernible error justifying this Court’s intervention. In particular, no error is disclosed that could not be corrected on appeal which would justify intervention at this stage of proceedings. Mr Fehling’s complaint that he did not advance oral submissions does not engage a question of law. There is no standard procedure for the hearing of a s 147 application. Mr Fehling had filed written submissions in support of the application. The decision records that Mr Fehling did address the Judge orally. It is clear the Judge reviewed the formal witness statements and Mr Fehling’s written submissions and correctly applied the law.
7 D (CA716/15) v R, above n 4 at [14]; Vortac New Zealand Ltd v R [2019] NZCA 418 at [10].
8 Deliu v Auckland District Court [2024] NZCA 39 at [43].
9 Angus v District Court [2017] NZHC 2879 at [23], footnotes omitted.
[24] Mr Fehling is right that the Summary Offences Act does not refer to a charge of speaking threateningly. However, that is how a charge of intimidation laid under s 21(1)(a) is commonly referred. It could otherwise be referred to as a charge of intimidation. The Judge was not creating a new offence at all, he merely referred to the charge in shorthand. The Judge appropriately referred to s 21(1)(a) in full, recognising that provision set out the elements the prosecution must prove to establish guilt. The Judge’s reference to a charge of speaking threateningly does not breach Mr Fehling’s rights under the Bill of Rights Act and is not a reviewable error of law.
[25] The statutory rights of appeal in the Act, coupled with the need to avoid collateral attacks to decisions made in criminal cases, make judicial review an inappropriate remedy.10 In any event I am satisfied no arguable ground of review has been identified and no application for review filed.
Observation
[26] Mr Fehling is clearly not satisfied with what are well-established legal principles and procedure or with the relevant legislation. He appears dissatisfied with a legal process that ensures that, having entered a not guilty plea, he will have every opportunity in his Judge-alone trial, presently scheduled for hearing on 21 July 2025, to advance his defence to the charge. That will be the opportunity for him to address, either by way of calling evidence or by cross-examination of prosecution witnesses, the issues he has raised in support of this appeal. It is at that hearing the Judge will determine whether witnesses are credible and reliable. Mr Fehling’s strong views as to credibility do not determine the charge.
[27] In the event that he is found guilty of the charge, Mr Fehling will have a general right of appeal against conviction. He will also have a general right of appeal against any sentence that might be imposed. But he does not have a right to appeal the s 147 decision or, in the context of an appeal against conviction and/or sentence, to challenge the period he spent in custody on 15 January. As a safeguard I have considered whether he might have ground for judicial review and I am quite satisfied he does not.
10 Mathew Downs (ed) Adams on Criminal Law — Criminal Procedure Act (online ed, Thomson Reuters) at [CPA212.10].
Result
[28]Leave to appeal is declined for want of jurisdiction. The appeals are dismissed.
[29]The application for a stay is abandoned.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Copy to:
F J Fehling
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