Watts v The King
[2023] NZHC 2704
•13 October 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-55
CRI-2023-409-56 [2023] NZHC 2704
BETWEEN NICHOLA SARA WATTS
Appellant
AND
THE KING
Respondent
Hearing: 5 October 2023 Appearances:
Appellant in person
G E R Alloway for the Respondent
Judgment:
13 October 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 13 October 2023 at 1.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
WATTS v R [2023] NZHC 2704 [13 October 2023]
Introduction
[1] Nichola Watts was sentenced on 21 June 2022 in the District Court to three years four months’ imprisonment and an order for reparation.1 This followed her entering guilty pleas to the following charges on the dates provided:
(a)making a false statement (07/10/2020);
(b)careless driving causing injury (12/10/2020);
(c)making a false statement (27/01/2021);
(d)two charges of attempting to pervert the course of justice (27/04/2021);
(e)contravening a protection order (27/04/2021);
(f)two charges of attempting to pervert the course of justice (08/04/2022); and
(g)contravening a protection order (08/04/2022).
[2] She now appeals all convictions. Although the appeal was also filed as an appeal against sentence, Ms Watts clarified at the hearing she was only suggesting the sentence should change as a consequence of the convictions being set aside.
Facts of the offending
[3] Ms Watts and the victim met through an online dating platform in January 2019. Their casual relationship was ended by the victim in October 2019. Ms Watts told the victim she was pregnant with his child; this was untrue.
[4] On 25 November 2019, Ms Watts made a formal complaint of assault to the Police. Her statement said the victim had assaulted her, her doctor had viewed the bruises, she was sick due to pregnancy, and she had dropped a scan photograph of the
1 R v Watts [2022] NZDC 11504.
unborn child into the victim’s letterbox. However, she said she did not want to take the matter further, though complained the victim was harassing her.
[5] On 9 July 2020, Ms Watts used false statements and modified documents to apply for and obtain a protection order against the victim. As part of her application for a temporary protection order, she produced a birth certificate purportedly for a child born April 2020. An enquiry revealed the certificate related to a child born in 2003.
[6] Around 55 more claims were made by Ms Watts to the Police of harassment by the victim. In addition, she told the Police she had given birth as well as providing an elaborate story that she had immediately fostered the child out to a Mr and Mrs Smith. She also forged a letter, purportedly signed by the Smiths, to that effect. To support the harassment claims, Ms Watts created nine email addresses and several Snapchat accounts using variations of the victim’s and the victim’s ex-wife’s names to fabricate ‘evidence’. She went so far as to send emails from those fake accounts to her then 10-year-old daughter to portray the victim as a child sex offender and to Ms Watts’ employer to make it appear the victim was sabotaging her employment. Further emails were sent to Oranga Tamariki and to the Police to make it appear the victim was confessing to criminal harassment. A Police investigation showed all the complaints were false.
[7] On 18 August 2020, Ms Watts, while driving, collided with a bicycle rider who was thrown to the ground and suffered fractures.
[8] The victim of the harassment claims obtained a protection order against Ms Watts in November 2020, and this was served on her on 13 January 2021. Ms Watts sent a statement to the Police, purporting to be a statement from and signed by the victim, admitting sexual violation, stalking, intimidation, and wilful damage. Another statement was sent on 13 January in the same manner purporting to be written by the victim with admissions of sexual violation. Yet another statement was sent on 18 January containing supposed admissions of lying to Police, requests to withdraw statements, requests to cancel reparation, and admissions of other offending. It also said the victim would continue to threaten Ms Watts until she was incarcerated. On
the same day, another statement was sent in the same vein, containing supposed admissions about killing Ms Watts’ cat and other offending. She also sent a statement from and apparently signed by the victim’s ex-wife about further offending.
[9] In January 2021, Ms Watts contacted the Crime Stoppers and Crime Reporting Line several times pretending to be the victim and make more admissions of offending. On 27 January, Ms Watts sent a text message to a detective, in breach of bail conditions, alleging knowledge of offending by the victim and his former wife.
[10] In breach of a protection order, Ms Watts sent a letter from Christchurch Women’s Prison, addressed to the victim’s ex-wife, to the victim, which purported to be sent by a fellow inmate. The letter said the ex-wife needed to admit to the offending Ms Watts had been charged with and threatened her, saying a burner phone had evidence.
[11] On 6 September 2021, a detective received a letter sent from Christchurch Women’s Prison addressed to an investigation involving another inmate. The letter had nothing to do with that investigation. Ms Watts made the letter appear to have been written by the victim’s former wife. It stated that, once Ms Watts was released, harassment would continue to get Ms Watts back in prison. Two other letters were found, written by Ms Watts, impersonating the victim’s former wife and which admitted to offending and wanting to “drown” Ms Watts.
[12] Two further Crime Stoppers reports were filed in September 2021, both purportedly from the victim’s former wife and admitting responsibility for a range of offending including the offending Ms Watts had already pleaded guilty to.
[13] Judge Kellar at sentencing commented the offending was such that both he and the Crown had not found cases approaching being of a similar scale to Ms Watts’ offending.
Principles on appeal
[14] A conviction appeal must be allowed if a miscarriage of justice has occurred for any reason.2 A miscarriage of justice means any error, irregularity, or occurrence in, or in relation to, or affecting the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.3
Submissions
Appellant’s submissions
[15] Ms Watts makes a range of submissions in quite general terms. The gist of those submissions is that she could not have committed most of the offending alleged as she was at work or has some other form of alibi.
[16] Most relevantly to this appeal, Ms Watts submits that she “accepted these charges so the victims would leave my family alone”, and she questions: “What are the victims planning to do next?” Ms Watts also raises a concern that she was not called upon to plea for some charges.
[17] She also made a range of other submissions which were not relevant to the appeal. These include alibi claims in relation to events that have taken place since her sentence, and therefore do not relate to the offending. For instance, her vehicle being broken into on 29 December 2022.
[18] Ms Watts makes claims about the previous convictions and behaviour of another person to an unclear end. She also refers to a range of issues with her son and makes further accusations of misconduct and offending against another individual.
[19] Ms Watts requests the Court order her previous employer (a rest home that has now closed) to release her timesheets and rosters, and other parties to release emails. She also takes issue with how her prosecution proceeded, the whereabouts of some property, and not being able to access some information due to privacy legislation.
2 Criminal Procedure Act 2011, s 232(2)©.
3 Section 232(4).
[20] Ms Watts seeks a variety of different costs awards in relation to legal aid debt, funds taken out of her bank account while she was in prison, defamation by the media, and repairing her vehicle.
Respondent’s submissions
[21] Mr Alloway, for the Crown, submits more is required than a bare denial of offending to sustain a conviction appeal.
[22] He points out that successful conviction appeals following the entry of guilty pleas are rare and generally only emerge where:
(a)the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;
(b)where, on the admitted facts, the appellant could not in law have been convicted of the offence charged;
(c)where the plea was induced by a ruling which embodied a wrong decision on a question of law;4 and
(d)where trial counsel errs in the advice given as to the non-availability of certain defences or potential outcomes.
[23] Later regret about entering a guilty plea, Mr Alloway argues, is not the test for a successful appeal.
[24] He notes that the appeal is unsupported by an affidavit, and there is no waiver of privilege, so it is unknown what advice was given prior to the entry of guilty pleas. While Ms Watts had claimed she accepted the charges so the victims would leave her family alone, there is no evidentiary foundation for this claim, and it should be dismissed as was the case in R v Greer which involved similar circumstances.5
4 For example, where a judge has ruled that a particular defence is not open to the defendant on the facts. See R v Clarke [1972] 1 All ER 219 (CA).
5 R v Greer CA 163/03, 20 May 2004.
[25] In any event, Mr Alloway notes that given the delay, leave to appeal is required, and there is no basis for leave to be granted.
Analysis
[26] Ms Watts was legally represented in respect of all charges she faced in the District Court. She pleaded guilty to the charges at various points in late 2020 and early 2021, with the final guilty pleas on charges of attempting to pervert the course of justice and contravening a protection order being entered on 8 April 2022. She was sentenced on all charges on 21 June 2022. Under s 231(2) Criminal Procedure Act 2011 (CPA), she had 20 working days in which to file an appeal. It follows that she must also seek leave to file the appeal out of time.6
[27] Leave may be granted where it is in the interests of justice.7 The Court must balance the public interest in the finality of decisions against Ms Watt’s interests. Other relevant factors include the merits of the appeal and the practical utility of the remedy sought, the length of the delay and the reasons for it, the extent of the impact on others similarly affected and on the administration of justice (a floodgates consideration), and the absence of prejudice to the Crown.8 Ms Watts bears the onus of satisfying the Court that granting leave to appeal is in the interests of justice.9
[28] I acknowledge Ms Watts is attempting to engage with the justice system as best as she can without legal experience. She says she has approached four lawyers in the intervening period, but now has chosen to represent herself. Given she does not have a lawyer and may not have appreciated the time limits applying, the question of whether leave should be granted will turn on the merits of her proposed appeal.
[29] Section 232 of the CPA specifically addresses the possibility of an appeal against conviction following a guilty plea. Pursuant to subs (5), the grounds of appeal available in subs (4) apply as if the “trial” was the proceeding in which the defendant pleaded guilty. This section does not alter the well-established approach to such
6 Criminal Procedure Act, s 231(2).
7 R v Knight [1998] 1 NZLR 583 (CA) at 589.
8 At 589.
9 R v Davis [2007] NZCA 577 at [13].
appeals.10 It is only in exceptional circumstances that an appeal against conviction will be entertained after a plea of guilty. An appellant must in effect show that a miscarriage of justice will result if the conviction is not overturned.11
[30] Mr Alloway, in his submissions, identified the broad grounds on which these sorts of appeals might succeed. These categories are not exhaustive, and new categories will be adopted where necessary.12
[31] However, Ms Watts has not identified, with any degree of substance, a ground of appeal that might be sustained. She has made a bald assertion that she only entered the guilty pleas in order to make the victims leave her family alone. She also claims that in virtually every case, she has an alibi, which was that she was at work and so could not have committed the offences. This includes the motor vehicle offence. However, she produces no records to demonstrate this, nor is it now likely that she can given the closure of the organisation that employed her. In any event, it strikes me as quite implausible that she had a credible alibi in respect of almost every charge she faces, but her lawyer declined to pursue this as a defence.
[32] This leads to the second problem with Ms Watts’ appeal. She has not waived legal privilege to enable her lawyer at the time to give evidence about the legal advice she received before entering guilty pleas.
[33] She has also provided no evidence to demonstrate harassment of her family by the victims. Further, that explanation is inconsistent with the fact her guilty pleas were entered at various points over a period of 18 months and that she initially entered not guilty pleas to some of the charges as well.
[34] Ms Watts also raises an issue about charges where she was not called upon to enter a plea. This is not an issue. A review of the District Court files show that pleas were entered to all of the active charges. There are none outstanding.
10 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [9].
11 R v Le Page [2005] 2 NZLR 845 (CA) at [16].
12 Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [104].
[35] In short, Ms Watts’ appeal has no prospect of success on the material before the Court. Indeed, it appears to be a continuation of Ms Watts’ predilection for deception and for deflecting blame for her behaviour onto others.
Conclusion
[36]As the appeal has no prospect of success, leave to appeal out of time is refused.
Solicitors:
Crown Solicitor, Christchurch
Copy to: Appellant
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