By Anna Longdill
Appeal against convictions following judge-alone trial where complainants failed to appear – were the complainants ‘unavailable’, ie could not be found with reasonable diligence? – were the complainants’ hearsay statements to the Police improperly admitted?
Miller v R [2024] NZHC 3753 per Boldt J
Darren Miller was found guilty after a judge-alone trial of assault on a person in a family relationship, strangulation (three charges), common assault and escaping lawful custody.
There were two complainants – a woman that Miller was in a relationship with (D) and her friend (S).
The Crown case was that Miller argued with D, then punched her in the face. When S intervened, he strangled her for around 60 seconds. He then left the room but returned to strangle her twice more and punch her in the head twice.
D and S both gave detailed statements to the Police on the same evening, identifying Miller as the attacker.
Miller’s trial was scheduled to commence on 31 July 2023. D and S were both summonsed to give evidence for the Crown. Neither appeared.
In the days preceding the trial, S had told the officer-in-charge she was reluctant to give evidence as she had been threatened by people she believed were gang members.
Police called at her address on the morning of trial and were told that S had decided to leave Wellington without her phone after being approached by two people who told her she would be “dead” if she got in a Police car to go to court. The judge issued a warrant for her arrest.
D did not turn up at court. The Police sent her a text, but did not call at her house to see where she was. No warrant for her arrest was issued.
The judge stood Miller’s trial down for 24 hours. The Crown then applied under s 18 of the Evidence Act 2006 to admit S and D’s Police statements as hearsay evidence.
The application was made on the basis that they were unavailable as witnesses because they could not with reasonable diligence be found (s 16(2)(d) Evidence Act).
The judge concluded that both complainants were unavailable. He then assessed whether the other criterion for admissibility of the hearsay statements was satisfied (whether the circumstances relating to the statement provide reasonable reassurance that the statement is reliable) and concluded that it was. The witness statements were admitted as evidence.
Miller’s trial counsel then sought an adjournment to allow time for the complainants to be found. Miller confirmed he was willing to remain in custody for another three months awaiting a new trial date.
The judge was advised no time would be available before the end of the year. The judge declined the adjournment application and proceeded with the trial.
Miller gave evidence at trial which was rejected by the judge. The judge found the complainants’ hearsay statements were highly credible. He found the charges proven and convicted Miller.
Miller appealed against the assault and strangulation convictions, on the basis that the judge erred in admitting the complainants’ hearsay statements.
Applicable principles: – Evidence Act 2006, ss 16 & 18; New Zealand Bill of Rights Act 1990, s 25 – scope of the Police’s duty to use ‘reasonable diligence’ to find complainants (must make every inquiry that could reasonably be expected, but do not need to undertake every inquiry theoretically possible or search indefinitely) – should the judge have adjourned the trial to give the Police more time to find the complainants? (yes, when critical witnesses fail to appear, the first step is usually to adjourn the trial. The Crown and the judge were too quick to dismiss the possibility the complainants could be found if Police were given a little more time) – did the Police exercise reasonable diligence to locate the complainants? (no) – did the judge err in admitting the complainants’ hearsay statements (yes, the requirements of s 18(2) Evidence Act were not satisfied, and the evidence should not have been admitted).
Held: The appeal is allowed. Miller’s three strangulation convictions and his convictions for common assault and assault on a person in a family relationship are quashed.
A judgment of acquittal is entered on those charges (the court declined to follow the normal course of directing a new trial as there was no utility because Miller had served his sentence and been released).
Note: The court noted that it was troubling that S reported to Police she had been threatened and appeared to have taken flight in response, noting that the Law Commission had recently recommended an amendment to s 18 Evidence Act to add “reasonable fear of retaliation” as a further ground on which hearsay evidence may be admitted.
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