Introduction	[1]
The offending	[4]
CONVICTION APPEAL	[12]
Appeal jurisdiction	[12]
Further evidence	[13]
Dr Nuth	[13]
Dr Wisely	[18]
Mr Gunn	[24]
Trial counsel	[29]

Ground 1: Mr Gunn’s autism spectrum disorder and election not to give

evidence

[40]

What were the additional matters about which Mr Gunn could have given

evidence?	[44]
Was the failure to obtain an expert report an error?	[54]
Was the failure to call expert evidence at trial an error?	[57]
Overall, was there an error or unfairness?	[61]
Ground 2: Demeanour directions	[82]
Discussion	[89]
Ground 3: Disclosure of fresh evidence	[96]
Discussion	[105]
SENTENCE APPEAL	[109]
The Judge’s sentencing remarks	[110]
Analysis	[117]
R v AM	[117]
Rape band one — six to eight years	[119]
Rape band two — seven to 13 years	[128]
The present case	[139]
Result	[142]
Introduction

In March 2021, Arthur Gunn was found guilty by a jury of one charge of sexual

violation by rape in respect of Complainant 1, said to have occurred at a Dunedin flat

party which took place in early to mid-September 2017. The jury acquitted Mr Gunn

of one charge of assault with intent to commit sexual violation of a second complainant

(Complainant 2) which was alleged to have occurred at the same flat party. Mr Gunn was sentenced to six years and three months’ imprisonment on the charge of sexual

violation by rape.[1]

[1] R v Gunn [2021] NZDC 11213 [sentencing decision] at [61].

Mr Gunn appeals his conviction and sentence. His conviction appeal is on the

grounds:

(a) Mr Gunn’s undiagnosed autism spectrum disorder (ASD), his
misunderstanding of the process of giving evidence, and trial counsel
not properly preparing or advising Mr Gunn on giving evidence
unfairly impacted his election not to give evidence;

(b) Mr Gunn’s demeanour (unknowingly linked to his undiagnosed ASD)
was made the subject of improper adverse comment by the Crown
prosecutor and not cured by the Judge’s demeanour directions; and

(c) fresh evidence regarding Complainant 1’s having previously lied about
her age in a prior sexual context should have been disclosed to the
defence and considered by the jury when considering her credibility.

The appeal against sentence was on the grounds that the sentence was

manifestly excessive.

The offending

We take the following description of…

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 Gunn v The King

Details

AGLC: Gunn v The King [2025] NZCA 590
Case: [2025] NZCA 590
Decision Date: 7 November 2025 at 11.30 am

CaseChat Overview and Summary

In March 2021, Arthur Gunn was found guilty by a jury of one charge of sexual violation by rape in respect of Complainant 1, said to have occurred at a Dunedin flat party which took place in early to mid-September 2017. The jury acquitted Mr Gunn of one charge of assault with intent to commit sexual violation of a second complainant (Complainant 2) which was alleged to have occurred at the same flat party. Mr Gunn was sentenced to six years and three months’ imprisonment on the charge of sexual violation by rape. Mr Gunn appeals his conviction and sentence. His conviction appeal is on the grounds: (a) Mr Gunn’s undiagnosed autism spectrum disorder (ASD), his misunderstanding of the process of giving evidence, and trial counsel not properly preparing or advising Mr Gunn on giving evidence unfairly impacted his election not to give evidence; (b) Mr Gunn’s demeanour (unknowingly linked to his undiagnosed ASD) was made the subject of improper adverse comment by the Crown prosecutor and not cured by the Judge’s demeanour directions; and (c) fresh evidence regarding Complainant 1’s having previously lied about her age in a prior sexual context should have been disclosed to the defence and considered by the jury when considering her credibility. The appeal against sentence was on the grounds that the sentence was manifestly excessive. The Court dismissed the appeal against conviction and allowed the appeal against sentence. The Court substituted a sentence of four years and 10 months’ imprisonment.

Orders