Fehling v Police - [2025] NZHC 1757

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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fehling v Police

Details

AGLC: Fehling v Police [2025] NZHC 1757
Case: [2025] NZHC 1757
Decision Date: 30 June 2025

CaseChat Overview and Summary

Friedrich Joachim Fehling sought leave to appeal against a decision by Judge Gilbert of the Greymouth District Court, who declined to dismiss a charge of speaking threateningly. The appeal arose from Mr Fehling's refusal to enter the dock as directed, resulting in a brief period of unlawful imprisonment. Mr Fehling contended that he was unlawfully imprisoned and that his right to natural justice was breached because he was not allowed to orally present his reasons for not entering the dock. The Court was required to determine whether the appeal had any jurisdictional foundation under the Criminal Procedure Act 2011 and whether Mr Fehling had grounds for judicial review.

The Court found that Mr Fehling's appeal was barred by jurisdictional obstacles. He had not been convicted or sentenced, thus no right of appeal existed under sections 248(1)(a) and 244 of the Act. Furthermore, there was no right of appeal against a decision not to dismiss a charge. The Court held that judicial review was inappropriate as the statutory framework provided adequate appeal rights, and there was no discernible error warranting intervention. The Court also dismissed Mr Fehling's argument that the charge of speaking threateningly was invalid, stating that the shorthand reference did not constitute a new offence. The Court concluded that Mr Fehling's complaints did not justify interference with the established legal principles and procedures.

Leave to appeal was declined for want of jurisdiction, and the appeals were dismissed. The application for a stay was abandoned.

Orders