Darren Kelvin Miller was convicted of multiple violent offences against two women, which he went on to successfully appeal.
Darren Kelvin Miller was convicted of multiple violent offences against two women, which he went on to successfully appeal.
Two complainants in a violence case failed to show up to trial to give evidence against the defendant, with one fleeing town after alleging she had been threatened by gang members that she would be “dead” if she attended court.
However, instead of adjourning the trial to give police adequate time to find the critical witnesses, Judge Jim Large proceeded without them the following day.
He ultimately convicted Darren Kelvin Miller of three counts of strangulation and two of assault and jailed him for 25 months.
Now, a senior court has quashed those convictions after finding the judge was too quick to dismiss the possibility the women could be found if police were given more time.
A High Court decision released last month detailed how Miller wound up defending the raft of charges at a judge-alone trial in August 2023.
It stated the Crown’s case against Miller was that in early 2022, he and his partner at the time were staying with a friend in Lower Hutt.
On the day of the alleged offending, the three of them had been drinking homebrew bourbon together when Miller and his partner began arguing.
The High Court has ruled in favour of Darren Kelvin Miller in his appeal against his convictions.
He allegedly punched her in the face and when the friend tried to intervene, he turned his attention to her.
She ran to her bedroom and locked the door but the Crown claimed Miller kicked the door down and then strangled the friend for around 60 seconds.
It was 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.
The friend managed to escape the house and phone 111 from the neighbour’s. During the call, she appeared distressed and named Miller as her alleged attacker.
Both women gave detailed statements to police that evening. Miller’s partner also named him as their attacker.
Witnesses no-show at trial
A few days before Miller’s trial was due to commence the following year, the friend 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.
The officer recorded it was likely she would come to court but she would probably be hostile and unforthcoming with evidence.
However, on the morning of the trial, she failed to turn up. Police went to her house twice and a person who answered the door told them she had left Wellington without her phone after describing being approached by two people who told her “she would be dead if she got into a police car to go to court”.
Judge Large issued a warrant for the woman’s arrest.
Miller’s partner, the second complainant in the matter, also failed to turn up.
The decision said the reasons behind her no-show were less clear and the judge did not issue a warrant for her arrest.
Although the police sent her a text, they did not go to her house to find out where she was.
After the women failed to appear, Judge Large stood the matter down for 24 hours.
The Crown applied to admit the women’s police statements as hearsay evidence, on the basis they were unavailable as witnesses because they could not with reasonable diligence be found.
Judge Large concluded the women were unavailable and admitted their statements as evidence after finding they were reliable.
Miller’s trial counsel then sought an adjournment to allow time for police to locate the women and Miller confirmed he was willing to remain in custody for another three months to await a new trial date.
Judge Large made inquiries about a new date but was advised no time would be available before the end of the year. He declined the application and proceeded with the trial.
Miller gave evidence, which was rejected by the judge. He found the complainants’ hearsay statements highly credible and that the charges against Miller were proven.
He was convicted of assault on a person in a family relationship, three counts of strangulation, one of common assault and one of escaping lawful custody.
In June 2024, Miller was sentenced to 25 months' imprisonment.
After he was released from custody, he appealed against the violence charges but did not challenge his conviction for escaping lawful custody.
Miller’s appeal counsel Elizabeth Hall argued Judge Large was wrong to admit the police statements and that a miscarriage of justice had occurred.
The decision stated it was common ground that without the statements, the Crown had insufficient evidence to prove the charges.
Hall challenged the reliability of the statements and argued police made minimal effort to locate the women. She noted it was usual practice to adjourn, at least on the first occasion a key witness fails to attend.
In considering the appeal, Justice David Boldt said it was “no small thing” to deprive Miller of the right to challenge the two principal witnesses against him.
He agreed an adjournment is a common first step and ruled it was not appropriate to give police only 24 hours to find them and that the evidence should not have been admitted.
“I am satisfied the Police fell well short of exercising reasonable diligence in the case of [the complainant with the arrest warrant], and came nowhere near meeting that standard in the case of [the other complainant].”
Justice Boldt found the mistake was not that the judge concluded the statements were likely to be reliable and admitted 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.”
As a result, Justice Boldt overturned Miller’s convictions.
He stated it was “troubling” that the woman reported to have been threatened, and that she appeared to have taken flight in response, noting the Law Commission had recently recommended an amendment to the Evidence Act to add “reasonable fear of retaliation” as a further ground on which hearsay evidence may be admitted.
“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.”
Tara Shaskey joined NZME in 2022 as a news director and Open Justice reporter. She has been a reporter since 2014 and previously worked at Stuff covering crime and justice, arts and entertainment, and Māori issues.
