High Court overturns Darren Miller’s violence convictions after trial proceeds without witnesses

Now, senior court overturned those verdicts after finding that the judge was too quick to dismiss the possibility of finding the women if police had had more time.

The Supreme Court’s decision published last month detailed how Miller completed his defense of a number of charges at a single-person trial in August 2023.

It said the Crown’s case against Miller was that in early 2022 he and his then partner were staying with a friend in Lower Hutt.

On the day of the alleged crime, the three were drinking homebrew bourbon together when Miller and his partner began arguing.

He allegedly punched her in the face, and when her friend tried to intervene, he turned her attention to her.

She ran to her bedroom and closed the door, but the Crown alleged Miller kicked the door and then choked her friend for about 60 seconds.

It was alleged that he left the room but returned three more times, choked her twice more and hit her twice on the head with a closed fist.

My friend managed to escape from the house and call 111 from her neighbor. During the conversation, she appeared concerned and named Miller as her alleged attacker.

Both women gave detailed statements to the police in the evening. Miller’s partner also identified him as the attacker.

The witnesses did not appear at the hearing

Days before Miller’s trial began the following year, the friend told an officer she didn’t want to testify because she was being threatened by people she believed were members of the Nomad gang.

The officer noted that she would likely appear in court, but that she would likely be hostile and unwilling to present evidence.

However, on the morning of the hearing, she did not appear. Police visited her home twice, and the person who answered the door told them she had left Wellington without a phone after she described being approached by two people who told her she “would die if she got into a police car to go to court.”

Judge Large issued a warrant for her arrest.

Miller’s partner, the second complainant in the case, also failed to appear.

The decision said the reasons for her failure to appear were less clear and the judge did not issue a warrant for her arrest.

Even though the police texted her, they did not go to her house to find out where she was.

When the women failed to appear, Judge Large adjourned the case for 24 hours.

The Crown moved to have the women’s police statements admitted as hearsay evidence on the grounds that they were not available as witnesses because they could not be traced with reasonable care.

Judge Large found the women unavailable and admitted their statements into evidence, finding them credible.

Miller’s defense attorney then asked for an adjournment of the hearing to give police time to locate the women, and Miller confirmed he was willing to remain in custody for another three months while awaiting a new court date.

Judge Large inquired about a new date but was told there would be no date available before the end of the year. He rejected the request and continued the trial.

Miller gave testimony that the judge rejected. It found that the applicants’ rumors were highly credible and that the allegations against Miller had been proven.

He was convicted of domestic assault, three counts of strangulation, one count of common assault and one count of unlawful flight.

In June 2024, Miller was sentenced to 25 months in prison.

After his release from custody, he filed an appeal against the charges of violence against him, but did not challenge his conviction for escape under the law.

Miller’s appellate attorney, Elizabeth Hall, argued that Judge Large was wrong to admit the police testimony and that there had been a miscarriage of justice.

The decision said it was common ground that without the submissions, the Crown did not have sufficient evidence to prove the allegations.

Hall questions the credibility of the testimony and argues that police made minimal efforts to locate the women. She noted that adjournments are common practice, at least the first time, when a key witness is not present.

In hearing the appeal, Judge David Boldt said it was “no small thing” to deprive Miller of the right to impeach the two key witnesses against him.

He agreed that adjourning the trial was a common first step and ruled that it was inappropriate to give police only 24 hours to find them and that the evidence should not have been admitted.

“I am convinced that the police failed to exercise due diligence in the case of (the complainant with an arrest warrant) and in the case of (the second complainant) failed to achieve this standard.”

Judge Boldt said the error was not that the judge found the testimony likely to be reliable and admitted it, but when he did so.

“The same application would undoubtedly be successful after several weeks of fruitless searching.

“Nonetheless, the judge erred in finding, just 24 hours after their failure to appear, that the witnesses could not be located with reasonable care.”

As a result, Judge Boldt overturned Miller’s convictions.

He said it was “disturbing” to report that the woman had been threatened and that she had apparently fled in response, noting that the Law Commission had recently recommended amending the Evidence Act to add “well-founded fear of reprisal” as another ground on which evidence could be admitted from hearsay.

“The judge may have been determined to ensure that such tactics did not derail the prosecution, particularly in light of the lack of time for hearings later in the case and, of course, the credible nature of the hearsay.”

Tara Shaskey joined NZME in 2022 as 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.