Gunn v The King
[2025] NZCA 590
•7 November 2025 at 11.30 am
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR
IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY
S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR
IDENTIFYING PARTICULARS OF ANY PERSONS UNDER THE AGE OF 18
YEARS WHO IS A COMPLAINANT PROHIBITED BY S 204 OF THE
CRIMINAL PROCEDURE ACT 2011. SEE
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA350/2021
[2025] NZCA 590
BETWEEN ARTHUR MAURICE GUNN Appellant AND THE KING Respondent
| Hearing: | 3 September 2025 |
| Court: | Thomas, Brewer and Isac JJ |
| Counsel: | E A Hall and S W O Campbell for Appellant |
| I S Auld for Respondent |
REASONS OF THE COURT
(Given by Thomas J)
Table of contents
| 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 the offending from the summary given by
the trial Judge, Judge Turner, in his sentencing notes.[2]
[2] At [4]–[9].
On the night of 9 September 2017 Mr Gunn met Complainant 1 and some of
her friends in town. They were drinking. Mr Gunn did not know Complainant 1 prior
to that night. Complainant 1 and her friends returned to Mr Gunn’s residence where
more alcohol was consumed.
At one point during the evening, Mr Gunn, Complainant 1 and Complainant 2
(another young female) were in the bedroom. Mr Gunn supplied them with alcohol in
the form of spirits, the evidence indicating they were doing what is commonly known
as “shots”.
Complainant 1 became very intoxicated and lay down on a bed in that room,
wearing underwear and a t-shirt. Complainant 2 lay down on a mattress on the floor
beside the bed. The offending occurred while Complainant 1 was either asleep or so
intoxicated she could not consent to sexual activity. Mr Gunn removed her underwear
and had sexual intercourse with her. Complainant 2 awoke to hear Complainant 1 say
“no, get off me” and “ouch”. When Complainant 2 realised what was happening, she
told Mr Gunn to get off Complainant 1 and Mr Gunn moved to the other side of the
room.
At this point, Complainant 1 was described as non-responsive. When she did
awake, she felt sick and was taken out of the house where she vomited.
At the time of the offending, Complainant 1 was 15 years old and Mr Gunn
was 30. Although Complainant 1 discussed what had happened with friends that night
and again about a month later, it was not until mid to late-2018 that a formal complaint
was made to police.
When interviewed, Mr Gunn denied raping Complainant 1. He said the sexual
activity was consensual and that he believed on reasonable grounds she was
consenting. The jury rejected that claim.
Complainant 2 alleged that, after she had looked after Complainant 1, she
returned to Mr Gunn’s bedroom and, believing he had left, got into bed. She alleged
she was woken by Mr Gunn kissing her and that he then pulled her underwear down.
She said she tried to push him off but he pushed her back down onto the bed by placing
his hands on her chest. Complainant 2 said she repeated “no”, pulled up her
underwear, freed herself from under Mr Gunn and ran from the room. The jury found
Mr Gunn not guilty of assault with intent to commit sexual violation.
CONVICTION APPEAL
Appeal jurisdiction
This is a first appeal against conviction.[3] In order to succeed, Mr Gunn must
[3] Criminal Procedure Act 2011, s 229(1).
show a miscarriage of justice has occurred.[4] This requires Mr Gunn to establish there
[4] Section 232(2). It is not contended that the jury’s guilty verdict was unreasonable having regard
has been an error, irregularity, or occurrence in or in relation to or affecting his trial
that has created a real risk that the outcome of the trial was affected or resulted in an
unfair trial or a trial that was a nullity.[5]
[5] Section 232(4).
Further evidence
Dr Nuth
Mr Gunn has obtained a report for the purpose of his appeal from a clinical
psychologist, Dr Jon Nuth. Dr Nuth concluded that Mr Gunn presents with “subtle
but clinically discernible behavioural traits associated with [ASD]”. He noted that
Mr Gunn himself had doubts about the term ASD applying to him, and that Mr Gunn
does not fully meet the revised diagnostic criteria for ASD because he does not appear
to have significant functional impairment in social, occupational and other aspects of
his life.
Dr Nuth administered psychometric assessments on Mr Gunn and his scores
for two tests were just above the threshold indicating the presence of autistic traits
(higher scores being more indicative of autistic traits). He scored highly on the tests
administered to detect camouflaging or subclinical level presentation of autistic traits.
Mr Gunn had no apparent difficulties with the test of his ability to detect social
nuances. He scored well on the test measuring social intelligence, although took an
extended period to complete it and responded in a manner more congruent with a
systematising approach which is more common in ASD groups.
[15] Dr Nuth described Mr Gunn as speaking in a relatively fluent manner and being well-spoken in his police interview but, when some propositions were put to him, he answered in a somewhat stilted and stuttering fashion. Dr Nuth said Mr Gunn was
relatively motionless during the whole interview and displayed some unusual and
idiosyncratic behaviour, for example: showing minimal emotion or affect, at times
speaking with a stutter, making long pauses and holding his breath. He also made
“dadadada” utterances when thinking for an answer which “appeared somewhat
dismissive and casual”. During the course of the interview, Mr Gunn smiled and gave
brief, barely audible laughs, totalling 35 instances. Dr Nuth said this could have
conveyed a dismissive attitude, insincerity and/or deception. At the very least, his
affect appeared to suggest he found aspects funny.
Dr Nuth concluded:
53) In this report I have also observed Mr Gunn’s police evidential DVD and noted some peculiarities with his demeanour. Whilst I opine that the
police interview was conducted in a calm and neutral manner, it is clear to
me that Mr Gunn demonstrated several idiosyncrasies directly related to
ASD traits that had the potential to be misconstrued. This included the
manner in which he spoke, his tendency to stutter, his seemingly casual
utterances and his tendency to grin and laugh (which occurred over 35
times).
54) Overall I respectfully opine to the Court that the above idiosyncrasies
/quirks by themselves are perhaps unremarkable but together (and aside
from his smiles/laughs) could have conveyed to an audience/jury a
somewhat blasé, and arrogant manner rather than that of embarrassment,
awkwardness and a lack of social skills/guile associated with ASD
behavioural traits.
The evidence from Dr Nuth is not fresh (as it could have been obtained prior
to trial) but its introduction is not opposed by the Crown. Given its suggested
importance to the appeal, it is admitted.
Dr Wisely
An assessment from a psychiatrist, Dr Christopher Wisely, was obtained for
the purposes of sentencing. It is convenient to address his report at this stage.
Dr Wisely began with the general observation that ASD has an impact on the
way a person views the world and interprets it, as well as how other people view that
person and their behaviour.
In respect of his interview with Mr Gunn, Dr Wisely said:
Interview Mr Gunn.
He is a 33-year-old man whom I saw for some four hours … [He has] a warm
pleasant personable manner.
He spoke clearly and articulately and with good use of vocabulary throughout
our session. He had some quirky mannerisms, specifically he often laughed
and smiled at comments and our conversation when it subjectively wasn’t
funny. This was in a warm self-deprecating way, but didn’t mirror the
seriousness of his situation.
He also has something of a habit of gaze aversion.
As to Mr Gunn’s police interview, Dr Wisely described Mr Gunn as having a
“clipped almost peremptory tone” and the most striking thing throughout the interview
was that he “evinces almost no emotions at all”. He referred to “a strange
inappropriate laugh that occurs a number of times … usually followed by a short
movement of his face afterwards”. He described Mr Gunn as facing the Detective
quite intently and stuttering and stammering regularly. He said:
Autism/Asperger's Syndrome - Mr Gunn
There are multiple non-verbal features consistent with autism that are clearly
evident in Mr Gunn’s video evidence. They will have been as evident to the
Detective concerned as they are to the viewer. Mr Gunn has an obvious lack
of expressed empathy, which does not mean he doesn't feel empathy or is not
sensitive but simply he does not express it. This can lead to consternation for
others who do not know how to interpret his behaviour. Mr Gunn is describing
events for which he has been charged and convicted and at certain points he
smiles. Those who know him well ascribe his smiling to being extremely
anxious, but a casual observer might conclude he actually finds the
proceedings funny or lacks sympathy entirely. Mr Gunn seems to remember
many facts from the evening but not to have an intuitive grasp of the associated
emotions of that night. Hence, he explains in a methodical way how he would
gauge someone’s sobriety or level of enthusiasm or consent.
Mr Gunn’s statement if read as a transcript reads well and coherently and is
logical to a degree. His video appearance on the other hand simply looks odd.
When he is effectively accused of Rape he stares fixedly and says nothing
initially.
In my interview with Mr. Gunn he looked away habitually. In his video he
gazed fixedly at the Detective. However, Mr Gunn had read an article about
appearing credible and studiously followed it. Hence his use of strong “Yes”
and “No” answers at the start of the interview. He had read he should appear
confident to the extent that at one point it looks as though he is taking over the
interview. His family commented on what they thought was bizarre and
unseemly confidence displayed in the court room.
Dr Wisely gave the following diagnosis:
Mr Gunn, I believe suffers with a highly functioning form of Autism spectrum
disorder formerly known as Asperger’s disorder.
He has a somewhat naïve and vulnerable side to him from his personality
which renders him likely to poor decision making with disastrous
consequences.
He has been protected by friends and family but on this occasion has recently
left home at the age of thirty and ended up with a younger crowd.
He is highly intelligent and capable within computing but poor emotionally
and at social interactions.
Dr Wisely recorded that Mr Gunn did not share the view that he has
“Asperger’s”.
Mr Gunn
Mr Gunn filed an affidavit for the appeal, relevantly saying:
(a) He thought both complainants were 17 years old and they both fully consented to the sexual activity that occurred.
(b) The police DVD interview was not his whole account because he was answering police questions rather than providing a full explanation.
The interview finished prematurely and he heard part only of the
complainants’ version of events.
(c) Until seeing Dr Wisely after his trial, he had not received an ASD diagnosis from an expert.
Explanation as to why Mr Gunn did not give evidence at trial
Mr Gunn said his trial counsel, Mr More, had not drafted a brief of evidence.
Mr Gunn had never been through the court process and did not know how things were
supposed to go. He wanted to give evidence. He had not told the police everything
in the DVD interview and wanted to give his whole account. He said:
16. At the end of the Crown case, Mr More did talk to [me about] giving
evidence. Mr More was very clear with me that I should not.
Mr More didn’t say anything about why I should give evidence
(i.e. there were no reasons why I should), only the reasons why I
shouldn’t. Mr More told me that my DVD interview was really full
and that there probably wasn’t anything I could say that wasn’t in
there. Secondly, Mr More said that as it stood, he had the last say with
cross examining the prosecution witnesses but if I gave evidence, the
prosecution would have the last word. I accepted his advice because
I thought he was the expert in these things.
Mr Gunn said he thought that, if trial counsel had not put a detail to a witness,
then he could not give evidence about that detail. On that basis, because his whole
account had not come up, he thought it meant he could say “practically nothing” that
was not in his DVD. As a result, when trial counsel advised him not to give evidence,
he accepted that advice.
Trial counsel did not tell him his opinion as to how he might be perceived by
others. Trial counsel had told him prior to trial that he had a “nervous laugh” but Mr
Gunn said he did not know what trial counsel meant by that. Mr Gunn now
understands that he has some non-verbal behaviours others might misinterpret, in
particular smiling in situations when others might consider it inappropriate. He has
been told it looks arrogant.
Mr Gunn then identified the additional information he would have provided
had he given evidence. We discuss this below.[6]
[6] See below at [44]–[53].
Trial counsel
Mr Gunn’s trial counsel was a barrister with over 50 years’ experience.
Mr Gunn and autism spectrum disorder
Trial counsel attended Mr Gunn’s police interview. He said Mr Gunn seemed
intelligent and articulate but also had some odd behaviours. He recalled observing
Mr Gunn’s mannerisms, including his laughing at points which seemed unusual, and
Mr Gunn speaking in a static, clinical manner with a stutter.
In cross-examination before us, trial counsel said “in retrospect” he could see
that Mr Gunn might have had more to say than he had the opportunity to do at the
police interview.
Leading up to trial, trial counsel was intrigued at the way in which Mr Gunn
was approaching the charges, appearing to be treating it as an academic exercise.
After the jury’s verdicts but before sentencing, a relative of Mr Gunn told
Mr More that he was “on the spectrum”. That led to trial counsel obtaining Dr
Wisely’s report for sentencing. He said that, had he known of Mr Gunn’s diagnosis
before trial, he would have taken a different approach to a number of aspects of trial
preparation. Trial counsel said he would have adduced expert medical opinion
evidence, which would have been relevant to Mr Gunn’s interactions during the
incident and would have provided context to Mr Gunn’s unusual presentation. He said
he would also have considered whether the police interview should have been played
at all. Trial counsel emphasised that Mr Gunn’s appearance in the police interview
troubled him and noted that the Crown prosecutor relied on it as a sign of guilt. He
considered that was unfair but did not have the information to contextualise it.
Trial counsel said he would have approached the question of whether Mr Gunn
should have given evidence, and his conversation about it, differently. Trial counsel
now understands how Mr Gunn’s ASD impacts his thinking and that he misinterpreted
some of their conversations. He would have better understood how to approach
conversations with Mr Gunn, for example in relation to admissibility issues, to ensure
Mr Gunn properly understood. He corrected one aspect of Mr Gunn’s affidavit in
respect of the advice — he said, rather than the prosecution having the last word if
Mr Gunn gave evidence, as Mr Gunn appeared to say in his affidavit, his advice was
that the last evidence the jury would hear was the Crown cross-examination of him.
Trial counsel explained he advised Mr Gunn not to give evidence because he
was worried he would not come across well and the jury would find him odd. He also
considered, notwithstanding his concerns with the police interview, the interview was
credible and cross-examination might undo its beneficial aspects. He said an expert
report would have enabled him to assess whether Mr Gunn should give evidence as well as calling expert evidence. Trial counsel believes his advice would have been to
give evidence.
In summary, counsel said:
17. Overall, I think having had the knowledge that Mr Gunn was on the spectrum before the trial, I think my advice could have been quite
different in terms of whether he should give evidence.
18. However, as I said, at the time my advice was that Mr Gunn shouldn’t
give evidence. Up until the commencement of his trial, I knew that
he wanted to give evidence. We had a brief discussion about it at the
end of the Crown case and by then he agreed not to give evidence and
he signed instructions to that effect.
Before us, counsel said he was “pretty confident” he would have called Mr
Gunn to give evidence.
No brief of evidence prepared
Trial counsel did not prepare a brief of evidence because Mr Gunn’s
instructions were essentially what was in his police interview and repeated in email
correspondence. He considered he had a good understanding of Mr Gunn’s version of
events. Mr Gunn had sent him several emails before trial and he therefore had a good
understanding of the evidence Mr Gunn could give. He referred a number of times to
his concern that Mr Gunn wanted to give evidence of matters that would be
inadmissible pursuant to s 44 of the Evidence Act 2006.
Overall, while there was no brief of evidence, given his over 50 years’
experience, his detailed notes and the fact he was aware Mr Gunn knew exactly what
he wanted to say, counsel considered Mr Gunn well prepared to give evidence should
that have been the decision.
Ground 1: Mr Gunn’s autism spectrum disorder and election not to give evidence
[40] Mr Gunn maintains a miscarriage of justice occurred because he
misunderstood the process of giving evidence as a result of his ASD and that, coupled
with trial counsel’s inadequate preparation and advice, unfairly impacted Mr Gunn’s
decision not to give evidence.
Mr Gunn therefore raises an issue of counsel conduct requiring a consideration
of whether counsel erred. If the Court finds counsel erred, it must turn to consider
whether there is a real risk that error affected the outcome by rendering the verdicts
unsafe.[7]
[7] Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [8]–[11]; and R v Sungsuwan [2005] NZSC 57,
In Bullock v R, this Court recently set out defence counsel’s duties with respect
to their client’s election:[8]
[8] Bullock v R [2024] NZCA 3 at [37].
(a) Counsel must ensure the defendant can make an informed decision as to whether to give evidence: counsel must “ensure that the client has
the necessary information, conveyed in an appropriate and timely way,
to make the decision.”[9]
[9] Citing Tarring v R [2016] NZCA 452 at [26].
(b) Any advice must take into account not only whether the defendant will be a good witness but whether the defendant’s case can be effectively
advanced without his or her testimony.[10]
[10] Citing Chambers v R [2011] NZCA 218 at [15].
(c) While counsel may recommend a course of action, it must be made clear the defendant is free to reject that advice.[11]
[11] Citing Nightingale v R [2010] NZCA 473 at [12].
(d) Where there were reasonable grounds for the defendant’s election not to give evidence, then ordinarily there will be no miscarriage.[12]
[12] Citing Gosnell v R [2014] NZCA 217, [2014] 3 NZLR 168 at [16]; Bushby v R [2017] NZCA 192
(e) If the client acquiesced to counsel’s advice not to go into the witness box it would be difficult to show that any miscarriage of justice
resulted.[13] Indeed if it is asserted that counsel ought to have advised
[13] Citing W (CA702/2010) v R [2011] NZCA 529 at [55].
their client to give evidence, the test has been described as whether “the
circumstances in their entirety [required] counsel to advise [the accused] that evidence should be given because otherwise conviction
[was] inevitable”.[14]
[14] Citing R v Timmins CA250/02, 23 June 2003 at [19]; and Z (CA589/2011) v R [2013] NZCA 118
(f) In practice, where there is an allegation that there is a miscarriage of justice relating to the election the appellant should state the substance
of the evidence they would have given.[15] The absence of such evidence
[15] Citing R v Pointon, above n 12.
tells against the success of this type of appeal.[16]
[16] Citing R v Pointon, above n 12, at 114.
(g) Failure to prepare a brief is a departure from best practice only and does not lead inevitably to the conclusion that there has been a miscarriage
of justice.[17] Relevant to this inquiry is whether counsel understood the
[17] Citing R v Wilkie CA6/05, 27 April 2005 at [29].
defendant’s version of events through other means, whether by notes of
attendances or statements to police.[18]
[18] Citing R v Wilkie, above n 17, at [16].
Even more recently, this Court reiterated that there will usually be no
miscarriage of justice where reasonable grounds exist for a defendant’s election not to
give evidence and counsel has advised the defendant of those reasons.[19]
[19] W (CA556/2023) v R [2024] NZCA 455 at [28].
What were the additional matters about which Mr Gunn could have given evidence?
We have reviewed the additional matters Mr Gunn said he would have
addressed in evidence and are not satisfied they materially add to the information he
provided in his police interview. For example, as to the night in question, Mr Gunn
wanted to give evidence: of further details of the layout of the flat where the party took
place; of the fact he had some vodka in a hip flask from which he drank when in town;
that L, who was at the party, was annoying and Mr Gunn had disagreements with him;
that he did not like one of his friend John’s flatmates; and that he did not know at the
time but is now aware that there was “a thing” between L and Complainant 1.[20] These
[20] We anonymise L’s name to avoid the associated risk of identifying Complainant 1.
matters appear to have limited, if any, relevance and, in any event, many of them were in fact raised in Mr Gunn’s police interview (for example, conflict between Mr Gunn
and L and that L and Complainant 1 may have had “a thing”).
Mr Gunn wanted to give evidence about Facebook messages he exchanged
with Complainant 1 after the incident. Ms Hall, for Mr Gunn, suggested those
messages were more consistent with there having been a consensual sexual encounter
or at least supported his reasonable belief in consent. As to the latter, interactions after
the event cannot be relevant to an assessment of the reasonableness of Mr Gunn’s
belief at the time. As to the former, the messages were in fact in evidence and
Complainant 1 was cross-examined on them.
More relevantly, Mr Gunn wanted to give details about being in the shower
with both complainants and about Complainant 1’s alleged willingness to have sex
with him. He noted he was not wearing a condom. He alleged that all three “were
into what was happening” and Complainant 1 was the main one encouraging it. All
these matters (with the exception of the fact Mr Gunn was not wearing a condom)
were covered in his police interview.
[47] As to these matters, trial counsel made considerable inroads in his
cross-examination of the complainants. Complainant 1 accepted the proposition both
complainants, Mr Gunn and John had all showered together in their underwear.
Complainant 1 conceded she could have worn Mr Gunn’s underwear and that the two
complainants and Mr Gunn were in bed together. And given Mr Gunn was acquitted
of the charge of assaulting Complainant 2 with intent to commit sexual violation, we
can be sure trial counsel’s cross-examination of Complainant 2 was effective.
Mr Gunn wanted to give what was clearly inadmissible evidence, including
evidence that he overheard the two complainants discussing their sexual experience.
He also wanted to give evidence about conversations with third parties which involved
details of Complainant 1’s sexual experience.
Mr Gunn wanted to address a second party the week following the incident,
when Mr Gunn says he “assumed” Complainant 1 was interested in “hooking up” with
him again. He wanted to give details of a fight at that party resulting in the police being called and a male discussing prior intimacy with Complainant 2. He also wanted
to give evidence about another party he attended about two months after the events in
question. Complainant 1 attended but Complainant 2 apparently did not and that was
when Mr Gunn says he first heard Complainant 1’s allegation of rape. Again, we
cannot see the relevance.
Trial counsel said there was only one matter in Mr Gunn’s affidavit which was
new to him and that was Mr Gunn seeing the two complainants and two other girls
together in a car some days after the party, which made him think the complainants
had opportunities to talk about what had happened. Trial counsel said, had he been
aware of that, it would have given him grounds to cross-examine the two complainants
about collusion. He did not do so at trial because he considered he did not have a basis
to do so and did not want an adverse answer. Respectfully, we cannot see how this
information would have made any difference. The complainants were together the
night of the incident and had mutual friends. In his police interview, Mr Gunn referred
to seeing the girls the following week, the implication being they were together, and
Mr Gunn said it sounded like the complainants had colluded. In response, the
interviewing police officer referred to the differences in their versions of events,
implying that did not support an allegation they had colluded.
We also question the assertion that the police interview was brought to an end
prematurely, depriving Mr Gunn of the opportunity to give his account. The interview
started at 11.21 am and concluded at 12.46 pm. The interview was briefly suspended
at 12.29 pm when the interviewer said he wanted to talk to his supervisor. It resumed
at 12.35 pm, with the interviewer saying he had just a few questions left. Towards the
end, the interviewing officer said, “[f]or the moment that’s … all I’ve got for you”
noting that Mr Gunn had given his account. At that point, trial counsel asked if he
could raise a couple of matters, specifically inquiring whether the two complainants
had come to the police station together or separately.
The interviewing officer asked whether Mr Gunn had any questions or
anything he wanted to add and he replied:
AG I, yeah prob., probably some things I wanna add. Um, the, the, so, so mean the, the follow week um, ah, John calls Police, four Police show up, ah, they, they talked to us, they talked to ah, at least
[Complainant 2] ah I don't know if they talked to [Complainant 1] but maybe you know that MH Ah I’ve got the details of that yes
In our view, the evidence Mr Gunn said he would have given confirms trial
counsel’s advice and reservations. Mr Gunn’s version of events was comprehensively
explained in his police interview. There is nothing material in the additional matters
he says he wanted to address. Mr Gunn appears to still be fixated on giving
inadmissible evidence which, even if admissible, likely would not have enhanced his
presentation to the jury. Mr Gunn also would have been subject to the usual risks
associated with being cross-examined.
Was the failure to obtain an expert report an error?
Implicit in the criticism of trial counsel’s preparation for trial was the fact an
expert report addressing Mr Gunn’s presentation was not obtained.
Trial counsel’s evidence was that he did not consider he should have had Mr
Gunn assessed at the time, despite his unusual features. He said that in the context of
having been involved in two cases previously where medical evidence or expert advice
was obtained concerning someone with ASD. Trial counsel said it was not necessarily
apparent to him that Mr Gunn was on the spectrum.
We regard any criticism of trial counsel for not having obtained an expert report
prior to trial as unwarranted. Defendants present with a wide range of personality
types and behaviours. Expecting counsel to identify the plethora of conditions which
might benefit from expert assessment is unreasonable and unrealistic. This is
particularly so in the case of Mr Gunn, who the experts assess as having a high
functioning form of ASD. We note Dr Nuth describes Mr Gunn as having subtle
behavioural traits associated with ASD which are clinically discernible, with test
results indicative of Mr Gunn camouflaging his ASD traits.
Was the failure to call expert evidence at trial an error?
As Mr Auld, for the respondent, observed, Mr Gunn does not say a miscarriage
of justice has arisen because of a failure to call expert evidence as to his diagnosis and
indeed he could not do so given there was no affidavit setting out the expert evidence
that would have been called. Mr Auld pointed out that it is not necessarily a given that
psychological evidence intended to address a witness’s credibility will be admissible.[21]
[21] Referring to R v B CA351/01, 19 March 2002; and R v Pendleton [2002] 1 WLR 72 (HL) at [45].
Trial counsel said, had he known of Mr Gunn’s diagnosis, he is “pretty
confident” he would have called him to give evidence and called expert evidence on
how he would have appeared. Although there was no draft brief of such expert
evidence, trial counsel said he has a reasonable idea of what such expert evidence
would have said, given the experts’ reports.
However, in our view, there were obvious difficulties associated with calling
evidence of Mr Gunn’s diagnosis, in particular the fact that in Dr Nuth’s opinion
Mr Gunn has narcissistic tendencies. That meant any impression that Mr Gunn might
give of being arrogant or lacking empathy could be attributable to narcissism rather
than ASD.
When asked whether evidence of the potential presence of narcissism could
have been prejudicial to Mr Gunn, trial counsel said he would not have called Dr Nuth.
But, of course, an expert must provide independent expert evidence to the court. We
proceed on the basis that any expert would have made observations of a potential
diagnosis of narcissism. So we regard that as very much a live possibility and risk.
Overall, was there an error or unfairness?
Ms Hall relied on the case of Tarring v R, where this Court allowed an appeal
against conviction on the grounds of counsel error because Mr Tarring’s signed
instructions that he did not wish to give evidence were not fully informed.[22]
Mr Tarring understood the reasons given to him by his lawyer but his lawyer did not
convey all the concerns about him giving evidence and did not advise him fully of the possible advantages.[23] Mr Tarring wished to give evidence and tried to convey that to
his lawyer, who had not prepared a brief of evidence for him.[24] Importantly in that
case, this Court placed some weight on the fact care was required to develop a strategy
to create empathy for Mr Tarring by allowing him to share personal background with
the jury.[25] Further, his lawyer had not taken any steps to prepare him for
cross-examination.[26]
[22] Tarring v R [2016] NZCA 452.
[23] At [28]–[29].
[24] At [30]–[32].
[25] At [32].
[26] At [33].
Mr Tarring’s lawyer considered his police interview was very good and it was
an unnecessary risk to expose him to cross-examination.[27] Furthermore, she was
[27] At [16].
concerned he may prove an unattractive witness to the jury because his wife was
pregnant at the time of the alleged sexual offending and there was a risk he might come
across as arrogant and entitled, something she did not explain to Mr Tarring.[28]
[28] At [16].
Mr Tarring was confident he could maintain his position under cross-examination
because of his military experience.[29] He wanted to give evidence and maintained that
[29] At [17].
position throughout.[30] During the trial Mr Tarring was concerned about the conduct
[30] At [18].
of his defence and his lawyer did not talk to him about whether he would give
evidence.[31] The discussion as to his election took place during a three-minute
[31] At [20].
adjournment.[32] This Court gave three reasons for concluding the election was not fully
[32] At [20]–[21].
informed:[33]
[33] At [29]–[31].
(a) Mr Tarring’s lawyer did not convey all her concerns to him or advise him fully on the possible advantages of giving evidence;
(b) this Court was satisfied, notwithstanding his lawyer’s advice, that Mr Tarring wanted to give evidence and endeavoured to convey that to
her; and
(c) because Mr Tarring wanted to give evidence and was told it would be a decision kept under review, it was always possible he would elect to
give evidence but his lawyer did not prepare for that eventuality and
she did not take any steps to prepare for his giving evidence.
As always, comparisons with other cases need to be undertaken with some
care. Mr Gunn’s position has similarities with Mr Tarring’s. But importantly, this
Court in Tarring was not satisfied a convincing narrative of the evening from
Mr Tarring’s perspective could have been elicited without preparation.[34] The Court
concluded that the circumstances together, including that Mr Tarring had been unwell
during the trial, were not auspicious circumstances for a fully informed election, made
much worse by his decision taking place in a three-minute adjournment.[35]
[34] At [32].
[35] At [34]–[35].
Therefore, while there are similarities with Tarring, Mr Gunn’s situation is
distinguishable.
In Weston v R, and with reference to Tarring v R, this Court allowed an appeal
on the basis a decision not to give evidence was not fully informed.[36] Mr Weston’s
[36] Weston v R [2019] NZCA 541.
lawyer did not think Mr Weston would do well under skilled cross-examination, a view
she conveyed to Mr Weston in two meetings which this Court described as “reasonably
general” conversations.[37] No brief of evidence had been prepared and Mr Weston’s
lawyer did not meet with him for a period of almost two years before trial to discuss
trial issues.[38] There were phone and email messages, as well as a series of bullet points
outlining his possible evidence, but no brief was prepared, nor was there any particular
discussion of the circumstances in which it might be necessary to call Mr Weston or
what his evidence might cover.[39] This Court said he had not been in any way prepared
to give evidence by his lawyer, something on which the Court placed particular
reliance in the circumstances of the case.[40] A witness called by the defence did not come up to brief and he did not cover aspects of Mr Weston’s narrative that were to
have been put before the jury.[41] That possibility was not discussed with Mr Weston.[42]
[37] At [34].
[38] At [35]–[36].
[39] At [38]–[40].
[40] At [38]–[40].
[41] At [49].
[42] At [49].
In submitting Mr Gunn’s circumstances were comparable to those in Tarring
and Weston, Ms Hall emphasised:
(a) Mr Gunn expected to give evidence. (b) No brief was prepared for him. (c) Mr Gunn’s credibility and reliability were crucial features for the jury. Mr Gunn was prevented from expanding on his background and his
interactions with the two complainants. Had he given evidence, he
would have had the benefit of the tripartite direction.
(d) Giving evidence is an opportunity for a defendant to build empathy and connection with the jury by outlining their personal background, family
relationships or employment history.
Ms Hall referred to trial counsel’s evidence that, had he known about
Mr Gunn’s autism, he would have approached his conversations with Mr Gunn
differently. Relatedly, Mr Gunn was under a misapprehension about what matters on
which he could give evidence, particularly whether he could give evidence on matters
not already in the evidence of others. There was no evidence trial counsel prepared
Mr Gunn for cross-examination in the event he did elect to give evidence.
Discussion
This ground of appeal relies on Mr Gunn’s diagnosis to contend that he
misunderstood the process of giving evidence and he was inadequately prepared or
advised, and this unfairly impacted his election. That is not borne out by the evidence.
We have viewed the video interview. In our assessment, Mr Gunn comes
across as an intelligent young man, carefully listening to the questions and doing his
best to respond. We consider a lay person would be likely to interpret any stuttering
or quiet laughter as simply a nervous response to the challenging situation in which he
found himself. Indeed, Dr Wisely describes Mr Gunn as a “somewhat earnest and
naïve young man” and, “although diagnostically he is on the autism spectrum [he is]
at the high functioning end, with no difficulties with speech or language, but some
diminished capacity to understand subtle nuances of other people’s behaviours”. We
emphasise the appeal was not run on the basis the ASD diagnosis was relevant to
Mr Gunn’s interpretation of his interactions with the complainants or reasonableness
of belief in consent (on Mr Gunn’s account, Complainant 1 was enthusiastically
consenting).
We have considered whether the trial was unfair because Mr Gunn’s ASD
meant he did not properly understand counsel’s advice and therefore the process of
giving evidence. However, while both experts made some generalised comments
about how those with ASD might interpret communications and Mr Gunn in his
affidavit says how he interpreted counsel’s advice, there was no expert evidence
linking Mr Gunn’s ASD with his claimed misunderstandings, which we consider
would be required to support an argument advanced along these lines — particularly
given the expert evidence indicates Mr Gunn is “at the high functioning end [of the
autism spectrum], with no difficulties with speech or language”. Further, Mr Gunn’s
interpretation of counsel’s advice was essentially accurate. Mr Gunn’s police
interview did cover his essential version of events, there were admissibility issues with
the evidence Mr Gunn wanted to give which meant Mr Gunn could not materially add
to what he said in his police interview and, had Mr Gunn given evidence, the Crown’s
cross-examination of him would have been the last evidence the jury heard (even if he
slightly misconstrued that advice, we regard that misunderstanding as of no moment).
Returning to the issue of Mr Gunn’s presentation, we consider it is somewhat
misleading to describe Mr Gunn as laughing during the police interview. He did give
a soft, slight laugh on occasion but it was not necessarily inappropriate. For example:
he described people coming in and out of his room saying, with a slight laugh, he then
gave up trying to sleep; when asked about plying the complainants with alcohol, he gave a slight laugh and said that was wrong because he didn’t particularly want to give
up his alcohol; and on another occasion Mr Gunn seemed to give a small laugh in
incredulity when Complainant 2’s version of events was put to him.
Mr Gunn gave a full account in his police interview, as well as further
instructions via email. His very experienced counsel was therefore sufficiently
informed of Mr Gunn’s account to prepare him to give evidence as he chose,
notwithstanding there was no brief.
As discussed above, there was nothing Mr Gunn said he wanted to address in
evidence which was relevant or added in any material way to what was covered in his
police interview or elicited from the complainants in cross-examination.
The concern that Mr Gunn might not have come across well to a jury was not
the only reason for trial counsel’s advice — he considered the interview was credible
and cross-examination might undo that. Importantly, there were potentially fruitful
areas for cross-examination of Mr Gunn, in particular the age gap between him and
the complainants (whether or not he was aware Complainant 1 was aged 15 rather than
17) and the evidence that he had provided them significant quantities of alcohol.
Trial counsel had clearly made good headway with Complainant 2 and indeed,
as we discuss under the third ground of appeal, made headway with Complainant 1 in
revealing she had previously lied about her age. That detracted from the complainants’
credibility and added to that of Mr Gunn.
Trial counsel’s evidence was that Mr Gunn wanted to give evidence until the
final discussion. Having seen Mr Gunn’s interview, trial counsel’s opinion was
Mr Gunn covered all the points and as a result did not change his mind. He said:
Having seen him in the police interview and I considered that he covered all
the points that I would have wanted him to have given evidence on, I did not
move from my view that he should not give evidence.
Aside from the obvious potential advantage of Mr Gunn reiterating his version
of events before the jury (contingent on Mr Gunn avoiding contradictions and
withstanding cross-examination), trial counsel would have been hard pressed to identify any significant advantages in Mr Gunn giving evidence. This was not a
situation like that in Weston where a defence witness had not come up to brief and
there were therefore matters which needed to be addressed by Mr Gunn but which had
not been.[43]
[43] Weston v R, above n 36, at [49].
It is important not to lose sight of the fact that Mr Gunn was also charged with
assault with intent to commit sexual violation in relation to his behaviour towards
Complainant 2. The jury acquitted Mr Gunn of that charge. In our view, that is a
significant qualification to any contention that the jury regarded Mr Gunn adversely
as a result of his presentation in the police interview.
The following paragraph from Dr Nuth’s assessment is revealing:[44]
[44] Emphasis omitted.
29) Mr Gunn presented as intelligent and as his achievements suggested, a particular aptitude for IT and systematic/analytic thinking. His comments
conveyed an in-depth knowledge of his own legal predicament and past
trial. He also stated:
i) There was nothing that he said during his police interview that he
disagreed with,
ii) He elected not to give evidence at his trial because of his lawyer’s
(David More) advice and reservations, that Mr Gunn “wouldn’t be
able to add much more” and because (ahead of the trial) because
(ahead of the trial) he and his lawyer were “feeling good about
things”. Mr Gunn also added the “caveat” of wanting his lawyer to
highlight issues such as the victims “colluding” in his final address.
iii) His view that his lawyer’s closing address was “a mess”.
While Mr Gunn might regret his election decision, we are satisfied Mr Gunn,
an intelligent man, essentially understood trial counsel’s advice and Mr Gunn’s
election decision was ultimately properly informed. There were reasonable grounds
for the decision and Mr Gunn was advised of them. We do not consider trial counsel
failed in his duties with respect to Mr Gunn’s election.[45]
[45] See Bullock v R, above n 8, at [41].
We dismiss this ground of appeal.
Ground 2: Demeanour directions
At the start of the trial, the Judge gave the jury a memorandum of preliminary
directions. This included a direction on demeanour as follows:
Demeanour
A witness’s evidence must be considered in the context of all the evidence in
the case. I warn you, though, that simply observing witnesses and watching
their demeanour as they give evidence is not a good way to assess the truth or
falsity of their evidence. For example, a witness may not appear confident or
may hesitate, fidget or look away when giving evidence, or need a break when
giving evidence. That doesn’t necessarily mean that their evidence is
untruthful. The witness may be understandably nervous giving evidence in an
unfamiliar environment in front of unknown people. Or there may be personal
or cultural reasons for the way a witness presents. On the other hand, a witness
may appear confident, open and persuasive, but nevertheless be untruthful.
And remember that even an honest witness can be mistaken.
Things like gestures or tone of voice may sometimes help you to understand
what the witness actually means. But you should be cautious about thinking
that they will help you much in determining whether or not the witness is
telling the truth.
The Crown prosecutor’s closing contrasted the evidence from the two
complainants with Mr Gunn’s version of events, submitting that Mr Gunn sought to
portray Complainant 1 as “enthusiastically” having sexual intercourse with him. In
contrast, Complainant 2, who there is no dispute was in the same room, heard
Complainant 1 saying, “no,” “ouch” and “get off.” The Crown prosecutor asked the
jury to reject Mr Gunn’s account and said:
When you look at his interview you might look at the way he spoke, the way
he answered questions. The Crown submits to you, a very fair interview from
Detective Harris. You may have noticed at times he paused, he appeared to
stutter. Did he appear over confident? Those are matters which may affect
your assessment of him and the interview.
In response, trial counsel’s closing to the jury suggested Mr Gunn’s interview
was compelling, noting it was voluntary. He said:
It was voluntary. He was trying to remember everything that had happened
and to tell it. He was wanting to help. I suggest to you its truthful as to what
happened. There was no attempt to minimise what he did. He was quite clear
that he had sex with [Complainant 1] and he was quite clear that he fondled
[Complainant 2]. And he was clear in his recollection of what happened. His
assessment of the state of drunkenness I suggest to you is to be preferred. The
interview wouldn’t have been easy. He was in a foreign territory. Not many people like going into police stations to be interviewed whether they’re
innocent or guilty. There’s something in the atmosphere. Again, it wasn’t
helpful because he has a slight stutter and that was apparent but I suggest you
can accept his interview as true.
In his summing up, the Judge gave a standard direction on demeanour similar
to the one he had given in the preliminary memorandum. As to the Crown prosecutor’s
closing, the Judge said:
[85] The Crown also invited you to take account of the way Mr Gunn spoke
to police, pauses and so forth in his interview, in other words look at his
demeanour. While you are entitled to take account of how a witness has given
evidence, please bear in mind the warning I have just given you about placing
too much weight on that aspect. …
Ms Hall emphasised the jury’s assessment of the video interview was
inevitably important, particularly as Mr Gunn did not give evidence. Ms Hall referred
to Dr Nuth’s assessment that Mr Gunn’s stutter, long pauses, smiles and laughter could
at face value have conveyed a dismissive attitude, “a knowing smile”, arrogance,
insincerity and/or deception. Dr Nuth considered that, at the very least, Mr Gunn’s
affect appeared to suggest he found aspects funny.
In Ms Hall’s submission, the comments in the Crown closing were improper
and unfairly prejudicial.
Mr Auld submitted that the Crown prosecutor’s comment was a small part only
of the closing address. The prosecutor relied primarily on inconsistencies between
Mr Gunn’s account of events and other evidence to undermine his credibility, for
example Complainant 1’s level of intoxication, how many shots were consumed, that
he and the two complainants had woken up together and shared a cup of tea, and
whether the complainants had colluded.
Discussion
We have discussed the expert evidence and how we believe a lay person would
likely interpret Mr Gunn’s behaviour in the police interview under the first ground of
appeal. We emphasise that the experts’ analysis reflected their expertise. For example,
Dr Nuth identified Mr Gunn as presenting with “clinically discernible behavioural traits associated with [ASD]”. We have considered the overall impression conveyed
by Mr Gunn.
In both the Judge’s opening remarks and his summing up, he gave a standard
demeanour direction. He specifically directed the jury in respect of the Crown
prosecutor’s closing remark. In his general directions on how the jury should go about
assessing the evidence, the Judge emphasised ways to assess plausibility, consistency
and the strength of memory.
Ms Hall suggested that, because Mr Gunn could be perceived as confident in
the police interview, the standard direction was in fact prejudicial to Mr Gunn because
it suggested a confident witness could be untruthful: “On the other hand, a witness
may appear confident, open and persuasive, but nevertheless be untruthful.”
We reject that submission, focused as it is on one potential impression of
Mr Gunn’s behaviour. Trial counsel referred the jury to another potential impression
— Mr Gunn was nervous, as evidenced by his slight stutter. The important point is
that the Judge’s remarks were general demeanour instructions, applying to all
witnesses.
In addressing the Crown prosecutor’s comment, the Judge emphasised that the
jury should not place too much weight on demeanour.
As Mr Auld fairly acknowledged, had the Crown prosecutor been aware of
Mr Gunn’s diagnosis, he would likely not have made that same submission and the
Judge could have given a more specific direction. However, in our view, any unfair
prejudice was sufficiently neutralised by the Judge’s directions and no miscarriage of
justice arose.
We dismiss this ground of appeal.
Ground 3: Disclosure of fresh evidence
[96] In his police interview, Mr Gunn said both the complainants told him they were 17 years old. Complainant 1 was in fact 15 years old and Complainant 2, 16 years old. In her evidential interview, Complainant 1 said she told Mr Gunn she was 15. In
evidence, she initially denied telling Mr Gunn she was 17 but then conceded she was
not sure about this.
In this context, Ms Hall submitted that Complainant 1’s age was an important
disputed issue at trial and evidence corroborating or supporting Mr Gunn’s position
would have assisted the jury’s overall assessment of his credibility.
In the course of preparation for the appeal, additional disclosure was provided
which Ms Hall submitted raised issues with Complainant 1’s veracity and credibility.
The disclosure involved an allegation Complainant 1 had previously lied about her age
only some months prior to the sexual encounter with Mr Gunn.
The disclosure was a statement from a 16-year-old male who had previously
been in a relationship with Complainant 1. Following referral to police of a report of
concern, he gave a statement that he had sex with Complainant 1, who was then aged
14. He said she had told him on a number of occasions that she was 15.
Ms Hall suggested the evidence Complainant 1 had previously lied about her
age in the context of a sexual relationship would have been substantially helpful, and
therefore admissible as veracity evidence.[46] The importance of the evidence was
[46] Evidence Act 2006, s 37.
heightened by the age difference between Mr Gunn and Complainant 1. It would, in
her submission, have bolstered Mr Gunn’s assertions and dented Complainant 1’s
credibility. She suggested it would have raised questions about her evidence in other
respects, for example as to how much alcohol she had consumed that night and
ultimately the allegation of rape.
Acknowledging that evidence of a single lie will seldom meet the substantial
helpfulness test,[47] in Ms Hall’s submission a single lie can be of such importance, as
[47] Referring to Kumar v R [2022] NZCA 106 at [22].
in this case, as to be substantially helpful for a fact-finder, particularly when the lie is
“exactly the same type of lie that is alleged at trial”.
Ms Hall contended the evidence would have been admissible notwithstanding
s 44 of the Evidence Act and it could have been narrowly confined and subject to tight
control.
[103] Mr Auld accepted that the information should have been disclosed but
contended it was inadmissible and in any event would have added little weight to
evidence already before the jury. It would not, in his submission, demonstrate
Complainant 1 had a propensity to make false complaints or lie about serious matters
and it was a collateral issue. He pointed out that Complainant 1 may well have denied
telling the 16-year-old that she was 15, raising the potential for a trial within a trial.
But, even if it were admissible, the evidence would, in Mr Auld’s submission,
have had minimal impact on the trial. The defence adduced evidence by way of
Facebook messages that Complainant 1 had recently lied to another young man about
her age, telling him she was 17. When confronted with the messages, she finally
accepted she had held herself out as 17, despite initially denying it.
Discussion
Evidence may be offered about a person’s veracity only if it is “substantially
helpful” in assessing that person’s veracity.[48] In order to decide whether the proposed
[48] Evidence Act, s 37(1).
evidence is substantially helpful, a judge may consider, amongst other matters,
whether the proposed evidence tends to show one or more of the following:[49]
[49] Section 37(3).
(a) a lack of veracity on the part of the person when under a legal obligation to tell the truth, for example in an earlier proceeding or in a signed
declaration;
(b) a conviction for an offence that may indicate a propensity for lack of veracity;
(c) any previous inconsistent statements made by the person; (d) bias; or (e) motive on the part of the person to be untruthful.
We doubt this proposed evidence amounts to admissible veracity evidence. It
is an allegation that, when she was 14, Complainant 1 told a 16-year-old boy with
whom she had, or was about to have, a sexual relationship that she was 15. It is, on
any assessment, of no moment. As Mr Auld suggested, an exaggeration by a young
girl to a slightly older boy suggesting she was a year older than she really was is
comparatively innocent and of a wholly different nature from making a false rape
complaint. It would, therefore, not have been substantially helpful to the jury.
[107] And in any event, in our assessment, the evidence would not be admissible
under the heightened threshold created by s 44 of the Evidence Act. In order for it to
have the relevance Ms Hall contended, it would have inevitably disclosed
Complainant 1’s sexual relationship with the 16-year-old boy. And without reference
to that sexual relationship, it would then have taken the evidence no further than that
before the jury in any event, which was that Complainant 1 had lied about her age in
a Facebook exchange with another young man.
We dismiss this ground of appeal.
SENTENCE APPEAL
Mr Gunn appeals his sentence on the grounds it was manifestly excessive, in
particular because the offending was considered to fall in band 2 of R v AM
(CA27/2009).[50]
[50] R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
The Judge’s sentencing remarks
[110] The Crown had submitted a starting point of eight years’ imprisonment on the basis of the offending falling within band 2 of R v AM, whereas defence counsel submitted the case involved a genuine but unreasonable belief in the victim’s consent
and a starting point of no more than four years’ imprisonment was appropriate.[51]
[51] Sentencing decision, above n 1, at [13]–[18].
The Judge rejected the defence submission that Mr Gunn had a genuine but
mistaken belief in Complainant 1’s consent, saying the evidence established that the
victim was either asleep or unconscious at the time of penetration due to her excessive
consumption of alcohol, and therefore by law was unable to give true voluntary and
informed consent.[52] The Judge also rejected the submission that the earlier activity
[52] At [20].
wherein Mr Gunn and the victim showered in underwear with others could logically
support a submission as to honest belief in consent, observing that verged on a rape
myth.[53]
[53] At [22].
The Judge described Complainant 1 as a child, given she was 15 years old, and
Mr Gunn was nearly twice her age, at just over 30.[54] The Judge also rejected a
[54] At [23].
submission as to Complainant 1’s sexual experience, noting that was not relevant or
admissible.[55] The victim impact statement revealed the significant impact of the
[55] At [25].
offending on her.[56]
[56] At [26].
The Judge therefore rejected the submission that Mr Gunn’s culpability was
low.[57] He accepted there was no premeditation or planning but found Mr Gunn took
[57] At [33].
advantage of a sleeping or unconscious woman to whom he had previously supplied
alcohol.[58] Mr Gunn knew she had been drinking and continued to supply her alcohol.[59]
[58] At [33].
[59] At [33].
She was vulnerable not only because of her age but because of her state of intoxication
which would have been obvious to Mr Gunn.[60]
[60] At [33].
The Judge found aggravating features present to a moderate degree and that
Mr Gunn’s level of culpability fell squarely within band 2 of R v AM.[61] He took a
[61] At [38].
starting point of seven years and 10 months’ imprisonment.[62]
[62] At [44].
[115] The Judge noted Mr Gunn had no previous convictions and a number of
references attesting to his good character, in respect of which he allowed a 10 per cent
adjustment.[63] He referred to Dr Wisely’s report and in particular that imprisonment
[63] At [45]–[46] and [50].
would be more difficult for Mr Gunn than others and allowed a 10 per cent adjustment
in that regard.[64] He specifically did not accept that the diagnosis lessened Mr Gunn’s
[64] At [57].
culpability, repeating that the victim was asleep, had been supplied with alcohol by
Mr Gunn who was a highly intelligent man and who said himself he was less affected
by alcohol than the two complainants.[65]
[65] At [58].
The final sentence was six years and three months’ imprisonment.[66]
[66] At [61].
Analysis
R v AM
This Court has repeatedly warned judges and counsel against misinterpreting
the guideline judgment of R v AM.[67] We have noted the error that arises when judges
[67] M (CA102/2024) v R [2024] NZCA 441 at [26], citing R v AM (CA27/2009), above n 50. See also
and counsel focus only on the sentencing bands and aggravating factors without fully
appreciating the context of the guidance, and in particular the examples of offending
in the various bands.[68]
[68] M (CA102/2024) v R, above n 67, at [26].
For the purposes of this decision, we focus on rape bands 1 and 2. We reiterate
what the bands say and the examples of the cases sitting at the lower and higher ends
of the two bands.[69]
Rape band one — six to eight years
[69] See M (CA102/2024) v R, above n 67, at [37]–[58].
Rape band one is appropriate for offending at the lower end of the spectrum
where the aggravating features are either not present or present to a limited extent.[70]
[70] R v AM (CA27/2009), above n 50, at [93].
Examples of cases, provided in R v AM, with starting points at the lower end of band
one demonstrate the level of seriousness attached to that lower end.[71]
[71] At [93].
In R v Murphy, the offender came home after drinking and found an unknown
man and woman asleep in his bed.[72] He tried to wake them. The man left but the
[72] R v Murphy CA310/96, 26 September 1996, at 1.
woman woke to find the offender attempting to have sexual intercourse with her. She
thought it was the man who had left the room and sexual intercourse occurred.[73] It was
[73] At 2.
not until afterwards that she realised she had had intercourse with the offender.[74]
[74] At 3.
In R v Pehi, the offender and victim had been in a relationship for about six
months.[75] After they had kissed in the victim’s bedroom, the offender, by then
[75] R v Pehi CA86/06, 31 October 2006 at [4].
extremely drunk, assaulted the victim and engaged in non-consensual activity
culminating in rape.[76] The victim was annoyed but said she would have been willing
[76] At [5].
nevertheless to have sex with the offender that night.[77]
[77] At [5].
In R v Hill, the offender and victim shared a taxi ride home to the victim’s
house after attending a party where they both became intoxicated.[78] They drank more
[78] R v Hill CA94/02, 21 October 2002 at [3]–[4].
alcohol.[79] The victim told the offender to leave at least twice.[80] Instead, he pushed
[79] At [4].
[80] At [4].
her into a cane basket, causing minor scraping and bruising to her thigh, removed her
clothing, penetrated her briefly, then stopped and apologised.[81]
[123] Those three cases were all characterised as within the lower end of rape
[81] At [5].
band one because the encounters and the degree of violation were relatively brief.[82]
[82] R v AM (CA27/2009), above n 50, at [94].
While both Pehi and Hill involved a level of violence, it was considered relatively less
serious than that seen in other cases.[83]
[83] At [94].
At the higher end of band one is R v Wirangi, where the 38-year-old offender,
and friend of the 16-year-old victim’s family, was looking after the home where the
victim was staying.[84] He exposed himself and she asked him to leave.[85] She was later
[84] R v Wirangi [2007] NZCA 25 at [3] and [6].
[85] At [3].
awoken by him removing her clothes.[86] He raped her and then masturbated in front
[86] At [3].
of her.[87]
[87] At [3].
R v Stusky involved a 31-year-old male offender and a 16-year-old female who
had met as part of a group for the first time that day.[88] They had spent the afternoon
[88] R v Stusky [2009] NZCA 197 at [3].
drinking alcohol but later ended up alone.[89] The offender grabbed the victim, pushed
[89] At [3]–[4].
her into the bushes, removed her lower clothing and, despite her struggles, raped her.[90]
[90] At [4].
[126] In R v H (CA248/02), the adult offender and victim had been in a volatile
relationship, the victim at one point obtaining a protection order against him.[91] The
[91] R v H (CA248/02) CA248/02, 31 October 2002 at [2].
victim had refused the offender’s request to come over. She was later awoken by him
at the door. He pushed his way in, would not allow the victim to leave, forced her onto
a bed where he performed oral sex on her and raped her. She eventually escaped.[92]
[92] At [3].
The victims’ youth and the age disparity were particularly relevant in Wirangi
and Stusky.[93] Wirangi also involved a breach of trust and a range of sexual activity,
[93] R v AM (CA27/2009), above n 50, at [95].
whereas Stusky involved an element of abduction and a particular impact of the
offending on the victim.[94] H (CA248/02) attracted a higher starting point because of the more extensive nature of the sexual activity and the fact the offending involved
[94] At [95].
forced entry into the victim’s home.[95]
[95] At [95].
Rape band two — seven to 13 years
The Court in R v AM said that, in comparison with rape band one, band two is
appropriate for a scale of offending and levels of violence and premeditation which,
in relative terms, are moderate.[96] It covers offending involving a vulnerable victim or
[96] At [98].
an offender acting in concert with others or where there is some additional violence.[97]
[97] At [98].
The band is appropriate for cases involving two or three of the factors increasing
culpability to a moderate degree.[98] Seven cases involving a range of offending were
[98] At [98].
given as examples of the lower end of rape band two.[99]
[99] At [98].
In R v Dunick, the offender and victim had been friends for about six weeks
and the victim invited the offender to her house.[100] The victim rejected his advances
[100] R v Dunick [2008] NZCA 482 at [1].
but the offender removed the victim’s clothing, digitally penetrated her causing pain,
and then raped her.[101] He made her kneel on the bed, and again penetrated her while
[101] At [3].
slapping her buttocks and making a number of derogatory sexual references.[102]
[102] At [3].
She eventually escaped.[103]
[103] At [3].
In R v Batt, a 38-year-old woman was working as a night porter in a hotel and
the offender was a guest.[104] In the early hours of the morning, he got into her room on
[104] R v Batt [1987] 1 NZLR 760 (CA) at 761.
a subterfuge, told her he had a knife and raped her.[105]
[105] At 761.
[131] In R v Castles, the male victim and the seven male offenders were classmates and attended a party together which involved heavy drinking.[106] The victim was held down and his eyebrows shaved.[107] He then went to sleep in a bedroom.[108] The
[106] R v Castles CA105/02, 23 May 2002 at [2].
[107] At [3].
[108] At [4].
offenders found a broomstick, smeared it with Vicks VapoRub and then attempted
unsuccessfully to insert it into the victim’s anus.[109] They returned 30 minutes later
[109] At [4].
and forced the broomstick 10 cm into his anus, causing considerable injury.[110]
[110] At [5].
In R v W (CA87/93), the male offender offended against several boys aged 11
to 16 over a 10-year period.[111] He was their boxing trainer. The majority of the
[111] R v W (CA87/93) CA87/93, 4 June 1993 at 1.
offending involved masturbation of the victims and simulated intercourse to
ejaculation. There was a single sexual violation charge.[112]
[112] At 2.
In R v Anderson, the 22-year-old offender saw the 18-year-old female victim
walking home.[113] He sexually propositioned her and, as she tried to walk away, he
[113] R v Anderson CA199/05, 2 November 2005 at [2]–[3].
pulled her into an empty section, covered her mouth, pushed her violently to the
ground and raped her.[114]
[114] At [3].
[134] In R v Stojanovich, the offender was the father of the 17-year-old victim’s
half-sibling.[115] The victim was living with him and viewed him as a father-figure.[116]
[115] R v Stojanovich [2009] NZCA 210 at [2].
[116] At [3].
The offender took the victim on a business trip, bought her alcohol, took her to a motel
room and, while she was asleep, began touching her, then penetrated her with his
fingers and raped her from behind.[117]
[117] At [4]–[7].
In R v Takiari, a 19-year-old visually-impaired victim was walking home when
the offender grabbed her from behind and took her into nearby school grounds, where
he removed her underwear, performed oral sex on her and forced her to do the same
to him.[118]
[136] The cases given as examples of those at the lower end of rape band two
[118] R v Takiari [2007] NZCA 273 at [2]–[4] and [17].
variously involve significant aggravating factors, including: an increased level of
violence, range of sexual activity, degradation, threatened or actual use of a weapon,
group attack, breach of trust over an extensive period, premeditation, abduction and
predatory behaviour.[119]
[119] R v AM (CA27/2009), above n 50, at [99]–[102].
The cases at the higher end of rape band two variously involved more extensive
levels of violence, the use of threats, the insertion of objects and additional degrading
aspects, premeditation, home invasion and multiple sexual violations.[120]
[120] At [102]–[104].
We do not accept that the offending in the present case could fall within the
band beneath band 1.[121] R v AM gave an example of a case outside the bottom of band
[121] Compare Crump v R [2020] NZCA 287, [2022] 2 NZLR 454 at [103].
1.[122] R v Greaves concerned a 17-year-old victim who invited the offender to her flat
[122] R v AM (CA27/2009), above n 50, at [96].
and they engaged in intimacy.[123] Sexual intercourse was initially consensual but the
[123] R v Greaves [1999] 1 Cr App R (S) 319 (CA) at 319.
victim changed her mind and asked the offender to stop.[124] He did not do so until the
[124] At 319.
act of sexual intercourse was complete.[125]
[125] At 319.
The present case
The aggravating factors in this case were the age disparity and the vulnerability
of the victim as a result of her gross intoxication. The evidence suggested that the
victim did protest and the only reason she shared a bed with Mr Gunn was as a result
of her intoxication. However, when the cases cited in R v AM are considered, it is
apparent that Mr Gunn’s offending is considerably less serious than those discussed
under band 2 and at the less serious end of those discussed under band 1. Although
there are similarities with Stusky, this Court considered the aggravating factors that
elevated the seriousness of the offending in that case were the element of abduction
and particular impact of the offending on the victim.[126]
[126] R v AM (CA27/2009), above n 50, at [95].
We consider the offending lies at the bottom of band 1, resulting in a starting
point of six years’ imprisonment. We have no issue with the discounts of 10 per cent
for lack of previous convictions and good character and 10 per cent for the fact
imprisonment would have been more difficult for Mr Gunn in light of his diagnosis.
[141] The result is a sentence of 58 months or four years and 10 months’
imprisonment.
Result
The application to adduce further evidence is granted.
The appeal against conviction is dismissed.
The appeal against sentence is allowed. The sentence of six years and three
months’ imprisonment is set aside and a sentence of four years and 10 months’
imprisonment is substituted.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
| Judgment: | 7 November 2025 at 11.30 am |
JUDGMENT OF THE COURT
| A | The application to adduce further evidence is granted. |
| B | The appeal against conviction is dismissed. |
| C | The appeal against sentence is allowed. The sentence of six years and three |
| months’ imprisonment is set aside and a sentence of four years and 10 | |
| months’ imprisonment is substituted. |
____________________________________________________________________
GUNN v R [2025] NZCA 590 [7 November 2025]
to the evidence.
[2006] 1 NZLR 730 at [70].
at [50]; and R v Pointon [1985] 1 NZLR 109 (CA) at 114.
at [21] (alterations in original).
L (CA215/2021) v R [2021] NZCA 297 at [18].
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