Miller v The King - [2024] NZHC 3753

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…

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 Miller v The King

Details

AGLC: Miller v The King [2024] NZHC 3753
Case: [2024] NZHC 3753
Decision Date: 12 December 2024

CaseChat Overview and Summary

Darren Miller appeals against his convictions for assault and strangulation. He does not challenge his conviction for escaping lawful custody. 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 unavailable, and allowed the Crown to lead their Police statements as hearsay evidence. 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 appeal court found that the Police did not exercise reasonable diligence in seeking to locate the witnesses. The court found 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. The court found 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. The appeal court concluded the requirements of s 18(2) were not satisfied, and the evidence should not have been admitted. The appeal court quashed Mr Miller’s three strangulation convictions, and his convictions for common assault and assault on a person in a family relationship. The appeal court entered a judgment of acquittal on those charges.

Orders