Miller v The King
[2024] NZHC 3753
•12 December 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2024-485-51
[2024] NZHC 3753
BETWEEN DARREN KELVIN MILLER
Appellant
AND
THE KING
Respondent
Hearing: 5 November 2024 Appearances:
E A Hall and S W O Campbell for Appellant L R van der Lem for Crown
Judgment:
12 December 2024
JUDGMENT OF BOLDT J
[1] On 3 August 2023, Judge J D Large found the appellant, Darren Miller, guilty on six charges — one of assault on a person in a family relationship, three of strangulation, one of common assault, and one of escaping lawful custody.1 Nearly a year later, on 21 June 2024, he sentenced Mr Miller to 25 months’ imprisonment.2 While he has now been released from custody, Mr Miller appeals against the assault and strangulation convictions. He does not challenge his conviction for escaping lawful custody.
[2] The case turns on the admissibility of statements the two complainants made to Police. Both were summonsed to give evidence for the Crown at trial, but neither appeared. After a 24-hour adjournment, the Judge decided the witnesses were
1 R v Miller [2023] NZDC 16918 [Conviction decision].
2 R v Miller [2024] NZDC 14578.
MILLER v R [2024] NZHC 3753 [12 December 2024]
unavailable, and allowed the Crown to lead their Police statements as hearsay evidence pursuant to s 18(1) of the Evidence Act 2006.3
[3] In this Court Ms Hall, on behalf of Mr Miller, submits the Judge was wrong to admit the Police statements. It is common ground that without them the Crown had insufficient evidence to prove the charges. Accordingly, Ms Hall submits a miscarriage of justice has arisen.
The Crown case
[4] In early 2022 Mr Miller was in a relationship with a woman named Angela Daymond. Mr Miller and Ms Daymond had been staying for around a week with Ms Daymond’s friend Tania Slight in Lower Hutt.
[5] On 23 January 2022, Mr Miller and Ms Daymond were at Ms Slight’s address. The three of them had been drinking homebrew bourbon together during the day. The Crown alleged that at around 5:30 pm Mr Miller and Ms Daymond began arguing, and that Mr Miller punched Ms Daymond in the face with a closed fist. It said Mr Miller reacted violently when Ms Slight intervened, and that she fled to her bedroom and locked the door.
[6] The Crown alleged Mr Miller kicked the door down, threw Ms Slight to the floor, then placed his hands around her neck and strangled her for around 60 seconds. It alleged he left the room but returned three further times, strangling her twice more, and punching her twice in the head with a closed fist.
[7] Ms Slight said that after Mr Miller left the room the final time, she managed to escape the address and ran to a neighbour’s place. She called the Police, and there is an audio record of her 111 call; she was obviously distressed. Ms Slight named Mr Miller as her attacker and provided a description of him. At around 11 pm she made a detailed statement to Police.
3 R v Miller [2023] NZDC 16208 [Ruling No 1].
[8] Meanwhile, Ms Daymond said that after Mr Miller punched her, she ran from the address fearing for her safety. Ms Daymond made a statement to Police at around 7:30 pm, very shortly after the alleged assault, identifying the man who punched her as her boyfriend, Mr Miller.
The trial
[9] The trial was due to commence on 31 July 2023. A few days earlier Ms Slight had told the officer in charge she was reluctant to give evidence because she had been threatened by people she believed were members of the Nomads gang. After a discussion, the officer made a job sheet recording it was now likely Ms Slight would come to court, but that she would probably be hostile and unforthcoming with evidence.
[10] The Police called again at Ms Slight’s address following her non-appearance on the morning of trial. The person who answered the door told them Ms Slight had described being approached by two people who told her she would be “dead” if she got into a Police car to go to court, and that Ms Slight had decided to leave Wellington without her phone. The Judge issued a warrant for Ms Slight’s arrest.
[11] The circumstances behind Ms Daymond’s non-appearance were less clear. Ms Daymond, who was living in Levin, simply did not turn up at court. The Judge did not issue a warrant for her arrest. The Police sent her a text, but it does not appear they called at her house to see where she was.
[12] When the complainants failed to appear, the Judge stood the matter down for 24 hours. The Crown then applied under s 18 of the Evidence Act to admit Ms Slight’s and Ms Daymond’s statements as hearsay evidence.
[13]Section 18 of the Evidence Act provides:
18 General admissibility of hearsay
(1)A hearsay statement is admissible in any proceeding if—
(a)the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either— (i) the maker of the statement is unavailable as a witness; or
(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
…
[14]Section 16 provides that a person is unavailable as a witness if:
…
(2)For the purpose of this subpart, a person is unavailable as a witness in a proceeding if the person—
(a)is dead; or
(b)is outside New Zealand and it is not reasonably practicable for him or her to be witness; or
(c)is unfit to be a witness because of age or physical or mental condition; or
(d)cannot with reasonable diligence be identified or found;
(e)is not compellable to give evidence.
[15] In assessing whether the witnesses could be found “with reasonable diligence”, the Judge examined the efforts Police had made to try to locate them. In Ms Slight’s case, the officer in charge visited her property twice, made inquiries with the person who answered the door, and attempted to contact Ms Slight by phone. A warrant was issued. There is no evidence they took any other steps.
[16] With respect to Ms Daymond, the inquiries appear to have consisted of nothing more than Police sending Ms Daymond one or more text messages. The officer in charge logged a task asking other Police units to keep an eye out for the two women, but nothing more was done.
[17] On the question of availability, the Judge set out the explanation given to Police about Ms Slight’s non-attendance, and concluded:4
4 Ruling No 1, above n 3.
[16] In my view Ms Slight is unavailable for the purposes of s 16(2) of the Evidence Act. It satisfies the first limb. I now must address as to whether the circumstances relating to the taking of the complainants’ statements providing reasonable assurance that the statements are reliable.
[17] I should say for completeness that Ms Daymond’s situation is different and there is no suggestion of any threats being made to her, but it is similarly different because she had spoken to the police, said she would get her way here and then obviously has made herself unavailable. She similarly is in my view unavailable for the purposes of s 16(2) of the Evidence Act.
[18] The Judge went on to consider whether the circumstances in which the statements were made provided reasonable assurance they were likely to be reliable. A number of features pointed to their reliability. Both were taken very shortly after the assault, the witnesses were spoken to separately but gave largely consistent accounts, both signed their statements and confirmed their truth, and there was extensive objective corroboration, including photographs of the broken door inside Ms Slight’s flat and marks around her neck.5
[19] Moreover, both witnesses were both familiar with Mr Miller, and both positively identified him as their attacker. The 111 call provided an element of objective and contemporaneous corroboration, at least of the fact Ms Slight had just been the victim of a distressing attack. She unhesitatingly identified Mr Miller as her assailant.6 The Judge made orders admitting the witness statements.7
[20] The next morning Mr Miller’s trial counsel sought an adjournment to allow time for Ms Slight and Ms Daymond to be found. Mr Miller confirmed he was willing to remain in custody for another three months awaiting a new trial date. The Judge made inquiries about a new date, but was advised no time would be available before the end of the year.8 The Judge declined the application and proceeded with the trial.
[21] Mr Miller gave evidence, and denied the allegations in complainants’ statements. He said he left the house that evening because he felt uncomfortable
5 At [18]–[20]
6 At [21].
7 At [37].
8 R v Miller [2023] NZDC 16222 [Ruling No 2] at [5]–[7].
and wanted to get money after losing his wallet. He denied assaulting either complainant, and suggested Ms Slight’s injuries had been inflicted by somebody else, possibly a gang member. He said both women had been pressured to accuse him.
[22] The Judge found Mr Miller’s evidence entirely unconvincing, and rejected it as unworthy of belief. He described it as implausible, inconsistent with the other evidence, lacking in detail and speculative. The Judge concluded Mr Miller’s explanations did not ring true at all.9
[23] By contrast, the Judge determined the hearsay statements were highly credible. He repeated many of the factors he cited when deciding they should be admitted. He noted the statements were made very shortly after the attack. He described Ms Slight’s evidence as detailed and convincing, with “no overegging of the pudding”.10 He found it was compellingly corroborated by photographs of the broken bedroom door, and by the 111 call.11 He concluded the evidence of Ms Daymond and Ms Slight was “credible, honest and sincere”.12
[24]The Judge found the charges proved and convicted Mr Miller.
The appeal
[25] Ms Hall challenges the reliability of the hearsay evidence, noting, for example, that the two women had been drinking and that their accounts were inconsistent in some matters of detail. Nonetheless, I have no doubt the Judge was right to conclude the circumstances in which the statements were made provided reasonable assurance of their reliability. The statements were detailed, independent from one another, taken immediately after the events they described, and broadly consistent in content.
9 Conviction decision, above n 1, at [31].
10 At [37].
11 At [47]–[48].
12 At [51].
[26] But reliability is the second stage of the inquiry. The Judge could not consider the circumstances in which the statements were made until satisfied the witnesses could not with reasonable diligence be found.
[27] Ms Hall argues the Police inquiries fell well short of what is required to establish reasonable diligence. She submits they made only minimal efforts to locate the two witnesses. They went to Ms Slight’s home, but there is no evidence they visited Ms Daymond’s address at all. The warrant for Ms Slight’s arrest was only in force for around 24 hours before the Judge decided she was unavailable, and no warrant was issued for Ms Daymond’s arrest.
[28] Ms Hall submits warrants should have been issued for both witnesses, and the Judge should have adjourned the trial to give Police more time to find them. There was, for example, no effort to check additional addresses, issue an alert for the witnesses’ vehicles, interrogate their social media accounts, monitor financial transactions, speak to family members or contact associates. Ms Hall notes it is usual practice to adjourn, at least on the first occasion a key witness fails to attend. Mr Miller offered to remain in custody, and was the only person who would have suffered any immediate prejudice if an adjournment had been granted.
The law
[29] Section 25 of the New Zealand Bill of Rights Act 1990, which sets out the minimum standards of criminal procedure to which every criminal defendant is entitled, provides that everyone charged with an offence has the right to examine the witnesses for the prosecution.13 The right to cross-examine is a vital pillar of our adversarial system, and cross-examination is a critical tool for establishing the truth when facts are in dispute. It follows it should never be dispensed with lightly.
[30] A witness’s unwillingness to give evidence has never been regarded, of itself, as a basis to admit a hearsay statement. In R v Manase, a pre-Evidence Act
13 New Zealand Bill of Rights Act 1990, s 25(e).
decision which emphasised the need to keep exceptions to the hearsay rule within tightly-defined boundaries, the Court of Appeal observed:14
… If the primary witness is personally able to give that evidence, it will seldom, if ever, be appropriate to admit hearsay evidence simply because the witness would prefer not to face the ordeal of giving evidence or would find it difficult to do so. To adopt that approach would be to tilt the balance too far against the accused or opposite party who is thereby deprived of the ability to cross-examine.
[31] In Huritu v Police the Court of Appeal discussed the requirements of s 16(2)(d).15 It observed:
[38] The question of whether reasonable diligence has been applied in attempting to find a witness requires an assessment of what has been done in the overall circumstances. There is no difficulty in the statutory language. What is required is simply an assessment as to whether what has been done amounts to reasonable diligence. We consider Ms Hoskin was correct to submit that issue is to be determined by looking at the steps taken to find the witness and ought not to be influenced by a consideration of what role the witness will play in the trial if he or she is located and gives evidence.
[32] The Court noted that unavailability is only the first stage of the inquiry — the party seeking to admit the evidence must still establish a likelihood of reliability and show the probative value of the evidence outweighs any unfairly prejudicial effect — but it added that “none of those matters has an impact on the factual inquiry as to whether due diligence has been applied in attempting to find a witness”.16
[33] The Court of Appeal cautioned against substituting other phrases for the statutory language of reasonable diligence. Obviously, Police do not need to undertake every inquiry theoretically possible, nor must they search indefinitely. On the other hand, Police must make “every inquiry that could reasonably be expected”.17
[34] It must always be borne in mind that the stakes are high — admitting a hearsay statement, and depriving the defendant of an opportunity to challenge a
14 R v Manase [2001] 2 NZLR 197 (CA) at [30(b)].
15 Huritu v Police [2021] NZCA 15.
16 At [39].
17 See Rameka v R [2019] NZCA 105 at [42].
witness in cross-examination, is a prima facie breach of s 25(f) of the Bill of Rights Act. The Evidence Act prescribes the circumstances in which departure from s 25(f) is lawful and can reasonably be justified.
[35] It follows that recourse to s 16(2)(d) should only ever be a fallback position. Ms Hall is right to note that when critical witnesses fail to appear the first step is usually to adjourn the trial. The Police have extensive experience and expertise in locating people who do not wish to be found.
This case
[36] It was no small thing to deprive Mr Miller of the right to challenge the two principal witnesses against him. I do not agree the Police exercised reasonable diligence in seeking to locate them.
[37] It was appropriate for the Judge to issue a warrant for Ms Slight’s arrest, but it was not reasonable to give Police only 24 hours to find her. I agree with Ms Hall that there were several other reasonable inquiries Police could have undertaken before concluding Ms Slight could not be found. As noted above, they do not appear to have sought out family members or associates with whom Ms Slight may have gone to stay. If allowed more time, they could have sought to monitor her financial activity, which may have identified her location fairly quickly. Other normal avenues, like interrogation of Ms Slight’s social media, do not appear to have been explored.
[38] It appears the Police, the Crown and the Judge all assumed Ms Slight was determined not to be found, and would therefore be able to evade Police for as long as she wished. It is possible Ms Slight’s skills at escaping detection are so advanced she could have remained hidden for months, but no-one knew that when the Crown moved to admit her hearsay statement. This was not a case where the trial had been adjourned multiple times. Mr Miller had even offered to remain in custody while the witnesses were located.
[39] Every trial is different, and I do not suggest a general rule that Judges must always adjourn when a witness fails to appear, especially if the trial has been
adjourned already. Nonetheless an adjournment is a common first step, and I am satisfied the Crown and the Judge were too quick to dismiss the possibility Ms Slight would be found if Police were given a little more time. It follows they were also too quick to have recourse to s 18 of the Evidence Act.
[40] The position is clearer still in the case of Ms Daymond. The Police did not even visit her address. No warrant for her arrest was issued. Apart from attempting to contact her by text, and asking the Levin Police to keep an eye out for her, it does not appear the Police made any effort to find her. And while Ms Slight’s failure to answer her summons might have been at least partially explained by the threats reported to the Police, there is no evidence that explains Ms Daymond’s failure to attend.
[41] The Judge decided Ms Daymond had “made herself unavailable” by failing to answer her summons. In fact, Ms Daymond’s failure to attend indicated little more than an unwillingness to give evidence. It said nothing about her availability, or whether she could be found with reasonable diligence.
[42] Mr van der Lem, on behalf of the Crown, acknowledges the Police could “undoubtedly … have done more”. That said, he submits the Act does not require Police to make all possible efforts to locate a witness before a hearsay statement may be admitted. Mr van der Lem submitted that when inquiring into whether diligence can properly be described as “reasonable”, it is appropriate to take into account the nature of the witness’s evidence and its relative importance at trial.
[43] Mr van der Lem’s submission is difficult to reconcile with the Court of Appeal’s comments in paragraph [38] of Huritu set out above. On its face, reasonable diligence is an objective standard which does not depend on the role the witness will play at trial. But even if the Crown were correct, and it may be reasonable to expend rather less effort in seeking to locate a minor witness, neither Ms Slight nor Ms Daymond fell into that category. Their evidence was central to the case. I am satisfied the Police fell well short of exercising reasonable diligence in the case of Ms Slight, and came nowhere near meeting that standard in the case of Ms Daymond.
Consequential orders
[44] Mr van der Lem agreed that if I were to conclude the complainants’ statements were improperly admitted, the appropriate course would be to quash Mr Miller’s convictions. It is common ground there was no case against him on any of the five charges without the hearsay statements. It follows a miscarriage of justice has occurred.18
[45] In the normal course of events, the appropriate course would be to direct a new trial, but I decline to do so in the circumstances of this case. Mr Miller has served his sentence and been released. There would be no utility in his going on trial again.
Conclusion
[46] It is troubling that — at least according to the information conveyed to Police — Ms Slight was threatened, and that she appears to have taken flight in response. The Law Commission has recently recommended an amendment to s 18 to add “reasonable fear of retaliation” as a further ground on which hearsay evidence may be admitted.19 The Judge may well have been determined to ensure the prosecution would not be derailed by such tactics, particularly in light of the shortage of downstream hearing time and the obviously reliable nature of the hearsay statements.
[47] The mistake in this case was not that the Judge concluded the statements were likely to be reliable and decided to admit them, but when he did so. The same application after a few weeks of fruitless searching would undoubtedly have succeeded. Nonetheless, the Judge made an error when he decided, only 24 hours after they failed to appear, that the witnesses could not with reasonable diligence be found. The requirements of s 18(2) were not satisfied, and the evidence should not have been admitted.
18 Criminal Procedure Act 2011, s 232(2)(c) and subs (4).
19 Te Aka Matua o te Ture | Law Commission Te Arotake Tuatoru i te Evidence Act 2006 | The Third Review of the Evidence Act 2006 (NZLC R148, 2024) at [9].
[48] Mr Miller was sentenced to one month’s imprisonment on the unconnected charge of escaping lawful custody. That conviction and sentence are unaffected by this appeal.
Result
[49] The appeal is allowed. Mr Miller’s three strangulation convictions, and his convictions for common assault and assault on a person in a family relationship are quashed. I enter a judgment of acquittal on those charges.
Boldt J
Solicitors:
Pipitea Chambers, Wellington for Appellant Crown Solicitor, Wellington for Respondent