10. PUTTING THE CASE
12. TRIAL CALLOVER
Published: December 2018
A PDF version of this document can be found here [link].
Disclaimer: The material provided in this guideline is not legal advice and should not be treated as such. The information is intended as a guide only and should not be relied upon as the definitive authority on pre-trial case management in the New Zealand courts. No liability is accepted for any adverse consequences of reliance upon it. Further disclaimer information is provided here [link].
1.1 This guideline is intended to help lawyers and judges to prepare for jury trials involving children or vulnerable adults in the adult criminal courts, whether as complainants, witnesses or defendants.
1.2 The guideline is intended to be read in conjunction with those for specific types of vulnerability (e.g. Intellectual Disability) and those which cover specific stages or processes (Questioning Children, Communication Assistance) in more detail.
1.3 The guide is intended to assist counsel with:
but who may require support to participate in proceedings adequately and to give "best evidence" (i.e., evidence that is as complete and accurate as is reasonably possible for them).
NOTE: The guide does not address issues of a defendant's fitness to plead or stand trial nor a witness's competence.
1.4 The courts increasingly emphasise that to ensure a fair trial, all reasonable measures must be taken to adapt usual court processes to enable:
(a) vulnerable defendants to participate as fully as possible in their own trials and;
(b) vulnerable witnesses (and defendants who give evidence) to give “best evidence”, as fully and completely as they are able.1
1.5 The measure of the fairness of a trial is not only its fairness to the defendant but also in its fairness to witnesses and to the interests of society in obtaining accurate factual decisions.2
1.6 Parliament has also explicitly provided for assistance for vulnerable witnesses and defendants in all criminal and civil proceedings, especially for children,3 and has imposed particular obligations on the Youth Court and the Family Court to facilitate children’s understanding of and participation in proceedings.4
1.7 New Zealand courts are also obligated by the United Nations Convention on the Rights of Persons with Disabilities to provide “effective access to justice for persons with disabilities … [via] procedural and age-appropriate accommodations”.5 (See UNCRPD guideline)
1.8 Despite this increasing focus on accommodating vulnerable people in the court process, research reveals continuing barriers to their full participation.
1.9 Key problems include:
(a) Lack of professional contact/support and information;6
(b) Long delays before trial;7
(c) Stressful and/or difficult to understand trial processes including:
(d) Poor communication:
1.10 Good pre-trial planning is one key to overcoming these barriers and getting the right supports in place for trial. This guideline aims to assist counsel to achieve that.
1.11 The objectives in the pre-trial phase should be:
(a) Fast-tracking the trial/streamlining the pre-trial process as much as possible;
(b) Obtaining proper accommodations or special measures for trial;
(c) Ensuring the vulnerable person is kept informed and has good support through the process;
2.1 A “vulnerable” witness or defendant is one for whom conventional legal processes are likely to cause unacceptable levels of stress, impede their ability to give evidence as fully and accurately as they might otherwise be able, and/or impede their ability to participate in their own proceedings.
2.2 Vulnerability in this context does not mean incompetence because it can be managed effectively if professionals take reasonable measures.
2.3 Vulnerability may result from permanent features such as intellectual disability, or transient ones such as being very young or distressed as a result of a traumatic event.
2.4 Examples of those who may be vulnerable in the courts include:
2.5 The law defines vulnerability widely. The breadth of its acceptance of vulnerability is suggested by the following:
2.6 Under s 103(3), a witness (including a defendant) may be vulnerable and eligible to use a wide range of alternative modes/methods for testifying due to, inter alia:
2.7 Children (under 18) are automatically deemed vulnerable witnesses by the rebuttable presumption that they will use one or more alternative modes of evidence.
2.8 Vulnerability as a defendant or witness is recognised in a person’s entitlement to a broad range of “communication assistance” under s 80 if he or she:
“(a) does not have sufficient proficiency in the English language to (i) understand court proceedings conducted in English; or (ii) give evidence in English; or (b) has a communication disability.”
2.9 Defendants’ vulnerability as participants in their own trials and as witnesses in giving evidence is recognised by the courts in the concept of fitness to stand trial only if special accommodations are provided.8
2.10 The definition of “vulnerable witness” used in most NZ case law is that of the NZ Law Commission: “[C]hildren, people with disabilities, those from minority linguistic or cultural backgrounds, and complainants in sexual cases for whom giving evidence in court may be difficult or virtually impossible”. These groups are “vulnerable” in that “without special assistance,9 their evidence may never be satisfactorily heard”.10
3.1 Identifying vulnerability can be one of the most difficult tasks for a lawyer. Some potential vulnerabilities will be obvious (a young child, a rape complainant, a defendant with an already diagnosed impairment or condition). However, others (such as a person with undiagnosed intellectual disabilities or mental distress) can be very difficult to identify. People may also actively try to conceal their difficulties, even from their own lawyers. In other situations, such as with teenage witnesses, lawyers (along with most of the population) may simply overestimate their coping skills.
See the specific disability Guidelines for further information on identification.
(a) Language development is a far more complex and a longer process than is commonly supposed – lasting well into adolescence11 - and studies (including New Zealand studies) suggest that lawyers often overestimate young people’s language abilities in questioning them.12
(b) Also, a child’s chronological age may not be an accurate predictor of their abilities as traumatised/abused children often experience developmental delays.13 Often such delays go undiagnosed.
If your inquiries flag up any issues, or if the child is under 12, get a Communication Assessment [See the Communication Assistance guideline for more information on this].
4.1 Pre-trial delay is a major problem for vulnerable people, causing serious stress and impacting on the person’s ability to give clear accurate testimony at trial.14 Reducing delay therefore needs to be a primary focus of pre-trial planning.
4.2 The legislation and the case law supports fast-tracking cases involving vulnerable people.15 Making full use of opportunities for disclosure, timetabling and special measures directions in the early pre-trial process especially the Case Review Hearing - is crucial.
4.3 Early pre-trial applications and decisions are particularly important:16
5.1 Prompt disclosure is essential to reducing delay. Prosecutors should prioritise disclosure as much as possible.
6.1 The Case Review Hearing (CRH) and Case Management Memorandum (CMM) were intended to be used to fast -track administrative processes and get early directions for trial. Courts have the power to make early directions at the CRH beyond the statutory minimum both of their own motion or either party’s application,23 including mode directions by consent.24
6.3 The required content27 is quite limited, but there is wide scope to request additional early directions. There is no requirement that the standard CMM form be used and considerable regional variation already exists.
6.4 Note that supporting evidence for any application to be made at the CRH must be attached to the CMM,28 and other applications must be filed within 10 days of a not guilty plea.
6.5 For best effect, in addition to the usual material covered, the CMM should signal the main pre-trial applications and steps otherwise usually left to the Trial Callover Memorandum (TCM). See the approach of the Serious Sexual Violence Pilot Courts (SSVC).29
(a) Section 56 of the CPA 2011 requires notice of:
(b) Under R.4.8 of the CPR 2012 the following are also required:
(c) Recommended additional directions:
An adult defendant with an intellectual disability was allowed to give her evidence sitting outside the witness box in the back row of counsel's benches with a Communication Assistant beside her to assist.
R v Beards and Beards (2016) EW Misc B14 (CC)
7.1 Although counsel have tended to request only a limited range of assistance, the Court's have broad and flexible powers under statute, common law and the courts’ inherent powers to control its own process, to make directions to facilitate defendants’ trial participation and/or witnesses’ evidence.
7.2 For instance, s 80 Evidence Act entitles defendants and witnesses with communication impairments to a wide range of help, including “oral or written interpretation of a language, written assistance, technological assistance, and any other assistance that enables or facilitates communication”.38
7.3 Similarly, the "modes" section, s 105 Evidence Act, usually only associated with the use of EVI, CCTV or screens, in fact states that “any appropriate practical and technical means may be used to enable the Judge, the jury (if any), and any lawyers to see and hear the witness giving evidence,” provided the judge, jury, lawyers39 and defendant40 can hear and see a witness. The same statutory options are available to witnesses and parties in the civil courts.41
7.4 The common law also allows a wide range of additional measures such as non-traditional seating arrangements, support persons throughout trial, shorter or variable trial times, time limits on questioning and detailed directions restricting language use for examination and/or the whole trial (see below). Statutory and non-statutory measures can and should be used in conjunction as needed.
7.5 The following pre-trial directions may assist vulnerable people (witnesses and defendants) when giving evidence.
7.6 If a CA is appointed, his or her report recommendations should guide the court as to pre-trial directions specific to the person’s needs.
7.7 Lawyers often limit their s 105 mode applications to the “standard package” of:
However, there are a wide range of additional options, including:
7.8 It is presumed children under 18 will use one or more alternative modes,50 and they are also available to vulnerable adult witnesses51 and to defendants.52 There is no presumption in favour of the ordinary way of testifying for anyone.53
Section 107: children and alternative modes
Section 107 sets out a rebuttable presumption that any child witness (under 18) is “entitled” to use one or more of the s 105 alternate modes. Prosecutors need not apply but instead must notify the court and defence as to what mode(s) are selected (in the CMM in a judge-alone trial and the TCO in a jury trial). Any changes must be notified as soon as possible. The presumption is rebuttable if the child or the defence objects.
Note that the new legislative presumption embraces all the alternative modes, including pre-recorded cross-examination. (See appendix below).
CCTV: Flexible Practice
7.9 We tend to assume CCTV always happens the same way but courts can tailor its use to the needs of the witness. Examples include:54
Caution with CCTV
7.10 While many vulnerable people will find CCTV helpful, some vulnerable witnesses may find it more difficult.
Arrange a visit to the CCTV room so the person can make an informed decision.
7.11 One form of the wide range of communication assistance available for witnesses and defendants under s 80 of the Evidence Act is to appoint a specialist to assist counsel and the court. A Communication Assistant (or “CA”) is an independent communication specialist (not an expert witness) appointed by the court to:
7.12 A CA can be crucial to ensuring vulnerable people can give evidence fully and can participate properly in their own trials. See the Communication Assistance Guideline.
7.13 Pre-trial Language Directions, utilising the Court’s wide-ranging powers and duty to ensure appropriate questioning under s 85 Evidence Act, can be a powerful tool to prevent miscommunication. See “Language Directions” below.
Where a CA has been appointed, his or her report will guide the language directions.
7.14 Some vulnerable people are better at understanding visual information and communicating through visual medium (i.e., drawings and in writing).56
7.15 Permission could be sought for a range of visual aids including:
7.16 When using visual aids at trial, ask for the CA or support person or a Registrar to alert the court to the person’s use of a card and to read aloud any typed/written answers, or to have a CCTV camera positioned appropriately. Otherwise their use of aids may not be visible. Lawyers should discuss and agree this approach before the evidence is given.
7.17 Be aware that some people, such as those with FASD, may resist using any aids perceived as childish, although they may need to use them. In such cases, it may be preferable to have a CA alongside them to prompt the use of aids.
7.18 People with intellectual disabilities or FASD are more likely to lose their way in exhibit books very easily and to struggle to remember where they are up to. While courts often direct a Registrar (or CA) to assist the witness to find exhibits in photo books, it can be useful to seek a direction.66
7.19 Where counsel for co-defendants will examine a witness, they can be directed to agree which counsel cross-examines on shared areas of concern, avoiding repetition and longer questioning times.67
7.20 Section 79 of the Evidence Act entitles witnesses to one or more68 support people with them whilst testifying – including someone well-known to them.69 The persons’ preference has great weight70 and any objections must have a substantive basis.71
7.21 Defendants can also have support people (including whanau and caregivers)72 with them throughout the hearing or trial under the Court’s inherent powers.
7.22 Forensic nurses or psychologists or CAs can also be directed to monitor the defendant’s coping and comprehension during trial, although they are not support persons per se.73
7.23 Usually supporters are told to remain out of the witness’s eyeshot and be completely passive, but this reduces the comfort the witness can derive from their presence. The Court can relax or vary usual practice if needed.74
7.24 Consider seeking a direction that the support person can, for instance, offer physical comfort if the witness becomes distressed while giving evidence, as CAs are sometimes allowed to do.75
7.25 Vulnerable witnesses can benefit from permission to watch the EVI a day or so before trial rather than at trial, to avoid tiring and/or distressing them directly before examination.76
7.26 Courts can direct a witness or defendant be allowed calming activities and/or comfort objects available in court as an important stress reduction measure. These could be:
“An adult witness with Autism was permitted to give evidence wearing a lion’s tail, something which was his ‘comfort object’ in daily life.”
Lexicon Autism Toolkit para.2.10
Too much of a good thing?
Some people with an intellectual disability or with FASD may find toys or animals too distracting.
Seek advice beforehand (and monitor during testimony), to ensure that a comfort object is not becoming counter-productive.
7.27 The Court should be asked to direct the Registrar that:
(a) A priority fixture: Long delays before trial can be very stressful for vulnerable people and erode memory.81
Prioritisation Practice Note
22 January 1992 per Eichelbaum CJ & Cartwright CDCJ
The Courts are directed to prioritise trials of sexual offences, especially those with child witnesses, and to scrutinise any applications to adjourn closely.
(b) Reserve trials and back-up fixtures: Reserve trials/back-ups can reduce delay but some vulnerable people find the uncertainty and any rescheduling very distressing and destabilising. This includes some people with autism and complainants in trials regarding traumatic events such as rape.
Consider seeking directions that:
7.28 Even when they are not automatically entitled to a closed court by reason of age or offence-type, vulnerable witnesses and defendants may need the court closed or entry restricted when giving evidence to reduce distraction and distress.83
7.29 Directions can also be sought for the trial itself to reduce waiting times for witnesses at court, and to ensure they give evidence when they are most able to concentrate.
7.30 The Court could be asked for:
7.31 Vulnerable witnesses will generally need more breaks than others. Consider seeking directions for:
Breaks for Children
“As a general rule, a young child will lose concentration after about 15 minutes, whether or not this becomes obvious. In most cases a child’s cross-examination should take no more than an hour and usually considerably less.”
England and Wales Equal Treatment Benchbook at 2-16 (56)
If a vulnerable witness asks for a break it will often be when they are at their limit. Any delay (“I only have a few more questions”) may result in breakdown. Seek a direction that:
Good practice examples:
• Cross-examination of a 16 year old girl with intellectual disabilities was conducted for two periods of 20 minutes each in the morning, over a period of five days.
Lexicon Learning Disabled Toolkit para.3.7
• Cross-examination of a tetraplegic witness was conducted one hour a day over several days.
R v Willeman (2008) NZAR 644 (5)
Creativity with Break-time
7.32 Courts can be flexible in allowing a vulnerable person to take a break in the way that will best calm them.
A 10 year old autistic witness was allowed to testify via CCTV while wearing a visor to reduce glare and distraction from the lighting. She was also allowed to have her pet dog with her to reduce stress.
R v BL (2016) ACTSC 209
7.33 Directions to ensure anxious vulnerable people do not meet defendants or their supporters or opposing parties can include:
In and around Court:
If using screens: Directions that the witness to be seated in court before the defendant/opposing party or any public enter the courtroom;101
If using CCTV: Directions blocking the defendant’s and/or public’s view of the witness on screen.102
7.34 If the witness wants to do so, meetings to introduce the judge and counsel before being examined103 can decrease the vulnerable person’s stress and are also a good opportunity for judge and counsel to find out more about their communication style.
Meeting people with autism
When meeting a witness with autism Judge and counsel need to be aware that:
In addition to the above directions for witnesses, defendants may need directions for:
(b) Communication assistance throughout the trial not just during the defendant’s evidence;107
(c) Remote participation via audio visual link (AVL) including pre-trials and the whole trial;108
(f) Slower pace of proceedings throughout trial/hearing.113
(g) Breaks: In addition to taking more breaks while giving evidence (see above), vulnerable defendants are likely to need more breaks during the hearing/trial for legal advice and explanation as to what is happening, and to give instructions114 as well as for rest and emotional regulation.115
Note: If a defendant has become overwhelmed it may be possible to get permission to remain out of court after a break/attend only part of hearings (counsel remaining to represent them).116
(h) Stress/coping monitoring: Periodic reports by psychologist,117 Court Liaison Nurse118 or CA. A Ground Rules Hearing can be convened in chambers during trial to reassess measures needed by the defendant as necessary (see “Ground Rules Hearings” below).
(i) Support at Court: In addition to a support person(s) whilst giving evidence, defendants can have one or more support people with them throughout the trial, whether whanau or caregivers119 or professionals such as a CA or CLN.120
(j) Seating arrangements: directions can be sought over:
(k) Judge-alone trial:
Myths about CCTV
Some lawyers prefer witnesses not to use CCTV or even EVIs, believing they have less impact on juries than evidence given in the courtroom. In fact, as a recent paper for the Scottish government put it:
"Some – but by no means all – studies suggest a preference on the part of jurors for evidence that is presented live in court, but in simulations with a group deliberative component, mimicking actual jury decision-making, the broad consensus of researchers to date has been that this preference does not impact significantly upon verdict outcomes."128
"It is now generally accepted that if justice is to be done to the vulnerable witness and also to the accused, a radical departure from the traditional style of advocacy will be necessary. Advocates must adapt to the witness, not the other way around."
R v Lubemba (2014) EWCA 2064 (68) per Hallet LJ
9.1 The most important way to facilitate best evidence is for counsel’s questions to be comprehensible and non-coercive. NZ courts are beginning to follow the English practice131 of making specific language directions to ensure vulnerable people are examined appropriately.132
9.3 Examples include directions to:135
9.4 While the Court of Appeal has discouraged generic “blanket bans” on certain question types without evidence specific to the witness,148 where there is evidence of what the individual finds coercive or incomprehensible, counsel should apply for directions.149
9.5 Process for determining directions:
“When the witness is young or otherwise vulnerable, the Court may dispense with the normal practice and impose restrictions on the advocate 'putting his case' where there is a risk of a young or otherwise vulnerable witness failing to understand, becoming distressed or acquiescing to leading questions.”151
10.1 It is now possible to seek pre-trial directions setting out the extent to which counsel must put the case in order to reduce unnecessary and overly distressing questioning.
10.2 When the case is put to a vulnerable witness, research shows it is often done at a level of detail or in a way that is inappropriate and not reasonably answerable. In particular:
Lawyers may feel obliged to put such questions but in fact, the law does not require it.
10.3 Section 92(1) Evidence Act 2006 states that “[i]n any proceeding, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.”
10.4 This implies that counsel has no obligation to put any question to which the witness cannot be reasonably expected to give a relevant answer.
10.5 Judges in England and Australia155 and in New Zealand,156 especially in the pilot Sexual Offence Courts are increasingly issuing pre-trial directions defining what aspects of the case need be put to the witness and what compensatory measures counsel may access instead.
10.6 Courts have ruled it is not necessary for witnesses to be asked or to answer questions putting the case where the risk of becoming overwhelmed and/or erroneously compliant is too great and have also said that answers to such questions may legitimately be disregarded as unreliable.157 The English Court of Appeal has also emphasised that the modern tendency to put the case via questions which are really only comment is improper as well as unnecessary.158
10.7 Instead, the Court allows counsel to tell the jury what they would otherwise have asked and to address the topics with other witnesses and in closing.159
10.8 However, a witness’ communication difficulties cannot be used as an excuse to avoid cross-examining where the witness can in fact cope: Where questions can be worded appropriately, counsel have a responsibility to give the witness a chance to respond.160
11.1 Input from experts can be crucial in cases with vulnerable people:
(a) Communication Advice: A specialist’s advice is important to planning communication strategies and appropriate accommodations for court appearances, not just for mode of evidence but also as to how to communicate effectively. See Communication Assistance Guideline.
(b) Expert Evidence:
(c) Expert evidence is typically provided by a psychologist or psychiatrist with specialist knowledge of the particular issues. Speech Language Therapists typically provide communication advice.
12.1 A TCM must be filed by each party: the prosecution files 15 working days before the Trial Callover (TCO); the defence files 5 working days beforehand.163 As noted earlier, nothing stops a party from seeking an early TCO.
12.2 With a vulnerable witness or defendant, many of the usual matters for a TCO should already have been declared, and some resolved, by the CMM or at the CRH.
12.3 The requirements are set out in s 88(2) CPA 2011 and R.4.18 CPR 2012.
12.4 Both sides must disclose:
12.5 Prosecution must also disclose:
12.6 Defence counsel must also disclose:
12.7 The defence may also disclose:
12.8 Consider seeking:181
12.9 The TCO must be held not later than 40 working days after the CRH.183
Get it in writing: Ensure any specific practical directions beyond mere permission to use CCTV etc., (e.g., directions on language or putting the case) are in writing, to save later argument and confusion.
13.1 A Ground Rules Hearing or (GRH) is an optional final call-over confirming arrangements for trial, such as:184
13.2 GRH are strongly recommended, especially for cases using Communication Assistants.185 GRHs are best held two to three weeks before trial when counsel are beginning their preparations, so they have time to assimilate directions.
13.3 GRH are not housekeeping discussions. Some courts already routinely schedule GRH. Others prefer to deal with issues on the day of trial as “housekeeping”. However, this disadvantages counsel, who may not have enough time to absorb and adjust to directions, especially on questioning, and makes some valuable options (e.g. pre-trial court visits; letting witness view EVIs several days ahead, introductory visits between witness, judge and counsel) impossible.
Ground Rules in Aotearoa
The judge and counsel had several GRH with the CA to work out how best to question an adult complainant with intellectual disabilities and a fear of men (counsel and the judge all being men). After consultation, the judge issued extensive directions by agreement, including that the woman CA would ask the defense’s questions in the CCTV room, using visual aids she prepared. Any additional questions would be formulated between defence counsel and the CA in discussion breaks.
R v Aitchison (2017) NZHC 3222
13.5 Agenda: Counsel should file a written memorandum beforehand, whether jointly or separately.188
If a CA has been directed, their report should form the basis of the discussion.
13.6 Get it in writing: It is essential to get any Ground Rules directions in writing in detail to save later argument and confusion.
13.7 Communication Assistant involvement: If a CA is appointed, it is vital that they are present at the GRH to take part in discussions.189 See Communication Assistance Guideline “Ground Rules Hearings”.
13.8 Vulnerable witnesses and defendants do better with counsel who are proactive in managing clients’ and witnesses’ stress, providing more than usual information and support.
13.9 Although prosecutors in particular must maintain objectivity, greater contact to build rapport and ensure good information are key ways to increase vulnerable people’s confidence in the process and reduce their stress.
13.10 Good briefing practice is the other main way in which lawyers can improve vulnerable people’s confidence and trial performance (see “Briefing” below).
13.11 It is good practice to inform other counsel of the increased briefing and need to build rapport with a vulnerable witness.
13.12 The following references prosecutorial obligations under statute and the Crown Law Guidelines but is intended for anyone calling a vulnerable witness.
13.13 Prosecutors must consult complainants and put their views before the court on:
13.14 Other matters on which information should be given include:
13.15 Contact should be with the lead counsel, but, if necessary, information can be provided via an intermediary (e.g. the Officer in Charge or a Victim’s Advisor) and can be provided to the nominated support person.207 Maintaining continuity in the professionals handling the case is important to vulnerable witnesses’ confidence in the process.
13.16 Counsel should meet with vulnerable witnesses or complainants often. As a rule of thumb, counsel should meet a vulnerable witness at least twice before the trial (not including on the day they give evidence). Prosecutors should take the Police O/C with them to such meetings.
13.17 Support people: Suggest the client/witness bring a support person along to meetings. It is worth (with the person’s permission) having ongoing contact with their support network to monitor their coping. If the person has limited support, or is coping poorly, consider referring to counselling, whilst recognising some counsel will make an issue of therapy prior to trial.
14.1 An important way to ensure a fair trial for vulnerable witnesses and defendants who testify – to ensure witnesses can give their evidence as accurately and completely as possible and defendants can participate properly in their own trials - is for counsel to ensure their questions are comprehensible and not coercive. See the specific guidelines on different disabilities or vulnerabilities as a basis for planning your questions.
14.2 It is strongly recommended that both counsel consult any CA privately when planning questions. See Communication Assistance Guideline.
14.3 When in doubt about consultation, raise the issue with the court at a GRH ( see “Ground Rules Hearings”).
14.4 Counsel must ensure their witnesses are properly prepared for Court. This includes both ensuring that they have attended courtroom education before trial and briefing them properly.
14.5 There are concerns that many lawyers do not brief vulnerable witnesses sufficiently.208 Research shows that well-briefed witnesses cope better with suggestive and complex language.209 Better briefing may also reduce their stress.
14.6 Many lawyers, especially prosecutors, have reservations about briefing witnesses at length, fearing they will slip into impermissible coaching. However, there is good recent authority on briefing showing that more is allowed than may have been thought.210
14.7 Before briefing:
14.8 At the briefing:
“Depending on the individual, problems . . . could include: lights that are too bright, buzz or flicker; noise or vibration from a lift or escalator; announcements over a loudspeaker; electronic feedback over the live link; echoes in the courtroom; smells (even something as ‘minor’ as flavoured crisps); or colours, fabrics or materials (eg a different kind of chair might be needed) . . . (or) crowds.”
Lexicon Autism Toolkit para.2.11
Witness briefing and courtroom education
14.9 The Court Education for Young Witnesses programme, delivered by Victim Advisors, is designed to reduce witness stress by familiarising them with court facilities and processes;213
14.10 Vulnerable adults may need practical support during the court day, including:
14.11 Plan so that the witness is not left sitting in court for long periods (e.g., more than 20 minutes) before giving evidence: Negotiate a set time for their appearance with the Court and if there is any doubt about timing, arrange with the support person that they wait for a text in a more congenial location (a local café, a park).
A Pragmatic Approach
An autistic witness was left to take the bus to court alone and arrived hours late because he was fixated on mending fences and got off the bus every time he saw a broken one.
A car was arranged for him and he arrived on time for the next date.
Plotnikoff & Woolfson Registered Intermediaries in the Criminal Justice System
14.12 It may be better for a vulnerable person to watch the EVI a day or so before giving evidence, just as other witnesses refresh their memories with their statements before trial.217
16.1 A potentially valuable alternative means of testimony under s 105 Evidence Act is to pre-record not only the witness’s evidence in chief but to pre-record their cross-examination too in a separate, judge-alone hearing well in advance of trial.
16.2 While rarely used in New Zealand, pre-recording cross-examination has been found to be a very successful measure in Western Australia over the last 25 years, to the point most other Australian states have adopted it, and in 2015 the English government announced it will be rolling it out nationally following a successful pilot.
16.3 The main objective of pre-recording cross-examination is to reduce lengthy pre-trial delays. Pre-trial delay is a major barrier to obtaining reliable, detailed evidence. Memories erode with time, particular those memories concerning peripheral details of an event. Delay can also cause unacceptable levels of stress and prevent witnesses moving on with their lives successfully.
16.4 Following expedited, full disclosure, a special pre-trial hearing is convened with the judge, counsel and defendant, but not jury. Cross-examination takes place as per usual with CCTV and/or other special measures, and is recorded on DVD. The recording is edited of inadmissible material and breaks. Both the EVI and cross-examination DVDs are then played at trial. A joint Ministry and Courts protocol sets out the hearing procedure.220
16.5 There is considerable evidence from Australia and England that pre-recording cross-examination can be practical and successful.221 Evaluation of the Auckland pre-recording hearings over 2010-11 supports this.222 (See “Benefits and Risks” below).
16.6 Section 105(1)(a)(iii) of the Evidence Act allows cross-examination to be pre-recorded. The measure was used in several cases223 and the Ministry and courts have a protocol for its use.224 The Court of Appeal confirmed its legitimacy in 2011, although it said it should be restricted to “rare” and “compelling” cases.225 As a result, Crown Law have a policy against prosecutors initiating pre-recording.
16.7 However, the courts are becoming more receptive:
(a) The High Court is pre-recording vulnerable witnesses’ evidence, (including a five-year-old, and an intellectually disabled adult);226
(b) Parliament’s recent inclusion of pre-recorded cross-examination in the alternative modes which it is presumed children will use suggests an intention it be used more;227
(c) The Court of Appeal has also suggested allowing pre-recorded cross-examination for a vulnerable defendant;228
(d) Pre-recorded cross-examination accords with the Act’s objectives of:
(e) Given the standard delays of 12+ months in our courts, experts are likely to support pre-recording for children or vulnerable adults.
(f) There is also support from analogous Court of Appeal rulings in favour of EVIs because of the benefit of early recording to preservation of the evidence232 and supporting other accommodations facilitating best evidence from vulnerable witnesses.233
16.8 Consider pre-recording for:
16.9 The courts have allowed pre-recording for dying witnesses,234 tetraplegic witnesses,235 young children236 and impaired adult witnesses.237 The Court of Appeal has suggested it for impaired adult defendants.238
16.10 The main value of pre-recorded cross-examination is that it happens early. To get an early hearing, applications must be made by the Case Review Hearing, and disclosure (including of the EVI) must be expedited.
Benefits and Risks:239
16.11 Benefits of pre-recording include:
16.12 Disadvantages of pre-recording include:243
This guideline was written by Dr Emily Henderson, Jonathan Temm and Phillip Hamlin. The guideline was formally reviewed by Her Honour Judge Anne Kiernan, Dr Suzanne Blackwell, Professor Fred Seymour, Dr Kirsten Hanna, Dr Deidre Brown, Dr Rachel Zajac and John Hancock. The authors are also grateful to Lucy Postlewaight, Aaron Dooney, Anna Patterson, Bridget Westenra, Mike Dodds and Chris Muston for their discussion of various drafts. The content, the opinions expressed and any errors are, however, the sole responsibility of the authors.
Emily Henderson, Jonathan Temm and Phillip Hamlin "Pre-trial Case Management" (2018) Benchmark <http://benchmark.org.nz/guidelines/pre-trial-case-management/>
Information on copyright is provided here [link].
 R v Hetherington  NZCA 248 at , ; R v Moeke  NZHC 1314 at , ; R v BL  ACTSC 209 at  [60-63], [67-68] . See also R v Barker  EWCA Crim 1 at ; R v Lubemba  EWCA Crim 2064 at [38-40] .
 UNCRPD Art 13.1 requires state parties ensure “effective access to justice for persons with disabilities on an equal basis with others…[through] the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.” See also Outcome 4 of the NZ Disability Strategy https://www.odi.govt.nz/nz-disability-strategy/outcome-4-rights-protection-and-justice/
 Elisabeth MacDonald and Yvette Tinsley (eds) From "Real Rape” to Real Justice: Prosecuting Rape in NZ (Victoria University Press, Wellington, 2011) at 173-187 (recommendations 6.3-6.4.).
 What is a long delay will vary. With a vulnerable child, aim for them to exit the system within 6 months. For a vulnerable adult, the window for best evidence will vary. Seek expert advice.
 Section 4 of the Criminal Procedure (Mentally Incapacitated Persons) Act 2003 states that a defendant is unfit to stand trial if that person is “unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; . . . include[ing] a defendant who, due to mental impairment, is unable . . . (i) to plead, (ii) to adequately understand the nature or purpose or possible consequences of the proceedings; (iii)to communicate adequately with counsel for the purposes of conducting a defence.”
 While the terms “special measures” or “special assistance” continue to be used in the legal context, the United Nations Convention on the Rights of Persons with Disabilities uses the term “reasonable accommodations” to denote support required by disabled people to participate in all areas of public life on an equal basis to their peers.
 Law commission The Evidence of children and other vulnerable witnesses (NZLC PP26, 1996); cited in, e.g.: R v M  NZFLR 920; Taylor v R  NZCA 69; M v R  2 NZLR 485; Wealleans v R, above n 2 ; R v GJ  NZHC 2276.
 Marilyn A Nippold Later language development: School-age children, adolescents, and young adults (3rd ed, PRO-ED Inc, Austin, TX, 2007).
 E Davies and FW Seymour "Questioning child complainants of sexual abuse: Analysis of criminal court transcripts in New Zealand" 5(1) (1998) Psychiatry, Psychology and Law; K Hanna, E Davies, C Crothers et al "Questioning child witnesses in New Zealand's criminal justice system: Is cross-examination fair?" 19(4) (2012) Psychiatry, Psychology & Law at 530-546; R Zajac and P Cannan "Cross-examination of sexual assault complainants: A developmental comparison" 16 (2009) Psychiatry, Psychology and Law at S36-S54; R Zajac, J Gross and H Hayne "Asked and answered: Questioning children in the courtroom" 10(1) (2003) Psychiatry, Psychology and Law at 199-209.
 Sara McLean "The effect of trauma on the brain development of children" (June 2016) Child Family Community Australia <https://aifs.gov.au/cfca/publications/effect-trauma-brain-development-children>.
 NZ Police v VT  NZYC 819 at [26(b)], : A case against a young impaired defendant was dismissed due to delays which, bad in themselves, impacted more greatly on the defendant’s memory because of his cognitive difficulties. See also cases accepting EVIs as evidence in chief to ameliorate delays: R v E  3 NZLR 145 at ; R v Salt CA353/004 4 May 2005 at ; R v L  4 SCR 419 at . See also Judicial College (UK) "Equal Treatment Benchbook" (February 2018) <https://www.judiciary.uk/wp-content/uploads/2018/02/equal-treatment-bench-book-february2018-v5-02mar18.pdf> at 2.13 , 2.14-15 [46-48].
 Section 6 Evidence Act 2006 aims at “avoiding unjustifiable expense and delay”; S 55(1)(a) Criminal Procedure Act 2011 (CPA) emphasizes “fair and expeditious resolution”; S 364 of the CPA 2011: Costs orders against counsel for “significant” “procedural failure” without “reasonable excuse”; Rule 1.3 Criminal Procedure Rules (CPR) 2012: Aims at “just and timely determination”; Practice Note 22 January 1992 per Eichelbaum CJ & Cartwright CDCJ: Prioritise sexual offence trials, especially those involving children, and avoid adjournments; Solicitor-General’s Prosecution Guidelines: Prosecutors must be “prompt” and act “without delay”.
 Criminal Procedure Act, s 58 states that the Court can of its own or a party’s motion depart from the standard regime and “give any other [case management] directions” it considers “will facilitate resolution of the proceeding, or it is otherwise in the interests of justice”; both s 56(1)(e) Criminal Procedure Act 2011 and R.4.8(1)(h) state that parties (singly or jointly) can seek any additional directions they want.
 District Courts "Sexual Violence Court Pilot: Guidelines for Best Practice" (2016) The District Court of New Zealand <http://www.districtcourts.govt.nz/assets/Uploads/Publications/Best-Practice-Guidelines.pdf>
 Otherwise due 25 working days before the TCO.
 EVI release in the Whangarei Court is streamlined via a specific protocol.
 A “Read” means a formal witness statement which the parties agree will be read aloud by the Registrar without the witness appearing, because no cross-examination is sought. While a time-saving to the witness, some counsel encourage Reads of opposition evidence because it can sound less interesting or memorable when read by a Registrar as opposed to the real witness.
 A Ground Rules Hearing is an important innovation allowing a specific, longer TCO to consider detailed directions on such matters as language or practical details for using measures such as CAs or support dogs.
 Evidence Act, s 4. See also the English CA’s description of usual accommodations for vulnerable people in R v Lubemba, above n 1, at  to , cited by the NZCA in R v Hetherington, above n 1, at .
 See for example Re M  EWCA Civ 1905 in which the English Court of Appeal endorsed the need for civil courts to take flexible and enabling approach to vulnerable parties in civil proceedings.
 Evidence Act, s 105(1)(a)(ii) ; see e.g.: witnesses; R v Willeman  NZAR 644 ; R v Olsen  NZHC 1885 (adult complainants in sex case with mental distress allowed to testify via AVL from remote location but not to have EVIs [20-21]); R v Aitchison  NZHC 3222 at ,  (Court would have allowed but facilities not available); Defendants: D’Ath v Police  NZHC 2605 at  adult defendant with mental distress to attend trial via AVL ; State of Western Australia v Mack  WASC 127 at  (autistic defendant allowed to attend trial via AVL).
 R v Kaukasi High Court, Akld T 014047 4 July 2002 (cited in Te Wini v R NZCA 405 at ) for screens; Te Wini v R  NZCA 405 for CCTV at ; Jeong v R (2012) NZCA 455 at .
 Linda Hand, Megan Pickering, Sally Kedge and Clare McCann "Oral Language and communication factors to consider when supporting people with FASD involved in the legal system) in Monty Nelson and Marguerite Trussler (ads) Fetal Alcohol Spectrum Disorders in Adults: Ethical and Legal Perspectives (Springer, Switzerland, 2016) 139 at 145.
 R v Aitchison, above n 46, at . See also Joyce Plotnikoff and Richard Woolfson Intermediaries in the Criminal Justice System (Bristol University Press, 2015) at 152-53; Hand and others, above n 56, at 145.
 R v Poutawa  NZCA 482 at .
 R v Jonas  EWCA 562. See also R v Butt  EWCA Crim 805 for the general rule on the avoidance of repetitious and prolix questioning. In practice this means defence counsel consult each other prior to the GRH and decide who covers what topic.
 Ruka v R  NZCA 404 at [84-85]; R v Beards and Beards, above n 63, at ; Burling v Police  NZHC 2526 at ; R v Sutherland  ACTSC 62 at ; R v Hamberger  EWCA Crim 273 at ; R v Kaukasi, above n 52.
 Support dogs are now available in some NZ courts: http://www.lawsociety.org.nz/lawtalk/lawtalk-archives/issue-898/louie-the-courthouse-dog. People may also use their own animals: R v BL, above n 77, at , [89-90]  (10 year old witness with ASD was allowed to have her assistance dog with her while she gave evidence to help reduce anxiety); Forest v Queensland Health  FCA 936; (2007) 161 FCR 152 at 181 at .
 Police v VT, above n 14, at [26(b)], : A case against a young, intellectually impaired defendant with FASD was dismissed due to delays which, bad in themselves, impacted more greatly on his memory because of his cognitive difficulties.
 Practice note 22 January 1992: applications to reschedule in sex cases or those involving child witnesses are to be heavily scrutinised. See also similar advice in Judicial College (UK), above n 14, at 2.15 [49-51].
 Rackham v NHS Ltd  UKEAT 0110_15_1612 at  (a party with Asperger’s left the courthouse after 3 hours waiting); E.g.: in the Child Witness and Serious Sexual Offences Pilot courts, children are usually scheduled to give evidence on the second morning of trial, even if they are complainants, to ensure they testify promptly and only during the morning, when they are most able to concentrate. An expert witness can be called on the first day instead, as they often prefer a firm time slot. See also similar practice recommendations in Judicial College (UK), above n 14, at 2.15-16 [52-55].
 R v Hetherington, above n 1, at ; Jones v R  NZCA 601 at  ; Monk v R  NZCA 113 at  ; R v Beards and Beards, above n 63, at  (the Court sat for two two hour slots: 10.30am-12.30pm; 1.30pm-3pm). See also similar practice recommendations in Judicial College (UK), above n 14, at 2.16 .
 R v Lubemba, above n 1, (45 minutes for a 10 yr old) at , , [51-52]); R v Hamberger, above n 72, at ; R v Willeman, above n 46 (only one hour xx every day) ; R v W & M  EWCA Crim 1926 (8 yr old complainant’s cross-examination limited to 45 minutes in the morning and one 45 and one 15 minute slot in the afternoon). See also Judicial College (UK), above n 14, at 2.16 , 2.30 .
 R v Hetherington, above n 1, at ; R v Beards and Beards, above n 63, at  (breaks every 30 minutes); R v Hamberger, above n 72, at ; R v JPA  NZHC 1534 at  (breaks every 45 minutes); R v Willeman, above n 46, at  (only one hour of questioning a day); G v R  NZCA 327 at , * (breaks every hour); Jones v R, above n 85, at ; Police v HJ  NZYC 168 at ; Stanley v Police, above n 73, at ; Wiltshire Council v A  EWHC 3502 (Fam) at ; R v Grant-Murray  EWCA Crim 1228 at  (every hour).
 Where everyone remains in place in court but the VW has a few minutes’ privacy in the CCTV room (only the judge’s camera remains on).
 R v Lubemba, above n 1, at . See also recommended practice in Judicial College (UK), above n 14, at 2-17 . Meetings are held in the Sexual Offences Pilot Courts but are not always appropriate: R v Aitchison, above n 46, at .
 Lexicon Limited, "Planning to Question Someone with an Autism Spectrum Disorder Including Asperger Syndrome"(August 2014) Lexicon Limited <https://lexiconlimited.co.uk/wp-content/uploads/2018/03/3-AUTISM-Aug-14-PDF.pdf> at 7.
 Barton v R, above n 109, at  the Court made suggestions as to language directions for trial including checking comprehension regularly by having the defendant repeat in his own words “everything said in court”; Police v HJ, above n 87, at .
 R v Hetherington, above n 1, at ; Jones v R, above n 85, at ; Monk v R, above n 85, at ; R v Beards and Beards, above n 63, at  (the Court sat for two two hour slots: 10.30am-12.30pm; 1.30pm-3pm).
 Increased breaks to consult counsel during trial Police v HJ, above n 87, at ; Stanley v Police, above n 73, at  ; R v Ruka, above n 72, at ; R v Monaghan, above n 35; R v Sutherland, above n 72, at ; Hemopo v R  NZCA 398 at  and before court during trial Titford v R, above n 106, at [51-52].
 R v Monaghan, above n 35 (psychologist to assess whether vulnerable defendant following proceedings at end of first day – cost to be borne by state); R v Kaukasi, above n 52 (cited in Te Wini v R, above n 52, at ) (psych to monitor VDs’ coping regularly during trial).
 Ruka v R, above n 72, at [84-85]; R v Beards and Beards, above n 63, at ; Burling v Police, above n 72, at ; R v Sutherland, above n 72, at ; R v Hamberger, above n 72, at ; R v Kaukasi, above n 52.
 R v Kaukasi, above n 52 (young defendants sitting at special table in well of court with counsel& support person able to join for periods); Titford v R, above n 106, at  (paranoid adult defendant sat at table close to counsel with materials to write notes); R v Grant-Murray, above n 87, at [109-10] (easy access to counsel at all times).
 Valerie Monro "The impact of the use of pre-recorded evidence on juror decision-making: An evidence review" Scottish Government <https://www.gov.scot/binaries/content/documents/govscot/publications/research-publication/2018/03/impact-use-pre-recorded-evidence-juror-decision-making-evidence-review/documents/00532556-pdf/00532556-pdf/govscot%3Adocument> at iii.
 See, e.g.: Goodman et al, Law and Human Behavior, 1998; Eaton et al, Journal of Applied Psychology, 2006; Landstrom et al, Legal and Criminological Psychology, 2010; Landstrom and Granhag, Applied Cognitive Psychology, 2010; McAuliff & Kovera, Psychology, Crime and Law, 2012; Antrobus et al., Psychiatry, Psychology and Law, 2016; Landstrom et al, Psychology, Crime and Law, 2018.
 Kirsten Hanna, Emma Davies, Charles Crothers and Emily Henderson "Questioning Child Witnesses in New Zealand's Criminal Justice System: Is Cross Examination Fair?" (2012) 4 Psych, Psychology, and Law 530 (for a summary). ; G.M. Davies, J.C. Wilson, R. Mitchell, & J. Milsom Videotaping children's evidence: An Evaluation (Home Office, London 1995): comparing videotaped and live evidence-in-chief; Kirsten Hanna, Emma Davies, Charles Crothers and Emily Henderson "Child witnesses' Access to Alternative Modes of Testifying in New Zealand" (2012) 19 Psych, Psych & Law 184 - 197 (tentative results comparing CCTV, in-court screened, in-court unscreened, and pre-recorded evidence-in-chief); H.K. Orcutt and others "Detecting deception in children's testimony: fact-finders' abilities to reach the truth in open court and closed-circuit trials" (2001) 25 Law and human behaviour 339 - 72 (comparing CCTV and in-court testimony); Munro, above n 128, at iii.
 For current English practice and what language restrictions are commonly made see Judicial College (UK), above n 14, at 2.30-32 [135-141]. See also R v Barker, above n 1 ; R v Lubemba, above n 1.
 R v Moeke, above n 1, at  ; R v GJ, above n 10, at ; R v Chase, above n 2, at ; see also R v BL, above n 77, at  [60-63], [67-68] ; Ward v R  VSCA 37. C.f.: Metu v R  NZCA 124.
 Police v HJ, above n 87; R v Barker, above n 1, at ; R v W & M, above n 86, at [30-31]; R v Wills  EWCA Crim 1938 at ; R v Lubemba, above n 1, at ; R v Monaghan, above n 51, at ; Barton v R, above n 109 at ; R v Beards and Beards, above n 63, at .
 Evidence Act, s 85: judges may disallow “unfair” or “misleading” questions; R v Edwards  EWCA Crim 3028; R v W & M, above n 86; Ward v R, above n 132; Jones v R, above n 82, at ; R v Wills, above n 132; Barton v R, above n 106, at ; Metu v R, above n 128.
 R v W & M, above n 86, at [30-31]; R v Wills, above n 136, at ; R v Edwards, above n 138, at ; R v Lubemba, above n 1, at ; R v Grant-Murray, above n 87, at ; R v Beards and Beards, above n 63, at ; Ward v R, above n 132.
 Evidence Act, s 85: judges may disallow questions “expressed in language that is too complicated for the witness to understand”; Burling v Police, above n 72, at . See also R v Barker, above n 1, at ; R v Lubemba, above n 1, at . For Australian practice see especially Ward v R, above n 132, at , , 125] .
 R v Monaghan, above n 35, at ; Barton v R, above n 109, at  (including having him repeat in own words “everything said in court”); Police v HJ, above n 87, at . Recommended practice in Judicial College (UK), above n 14, at 2.34 .
 R v Jonas, above n 67. See also R v Butt, above n 67 for the general rule on the avoidance of repetitious and prolix questioning. In practice this means defence counsel consult each other prior to the GRH and decide who covers what topic. This is recommended practice in Judicial College (UK), above n 14, at 2.30 .
 Metu v R, above n 132, at -. But see also the English Court of Appeal in R v Edwards, above n 138; R v W & M, above n 86; R v Lubemba, above n 1 where that Court has effectively ruled that there is sufficient certainty to ban certain question types research has established are very problematic for certain classes of witnesses (i.e.: heavily suggestive “tagged” questions to children).
 See the Questioning Children Guideline; Carole Peterson and Nikki Whalen "Five years later: children's memory for medical emergencies (2001) 15 Int You of Psych 7 - 24; Karen Saywitz and others "Children's Memories of a Physical Examination Involving Genitals for Reports of Child Sexual Abuse" (1991) 59 Journal of Consulting and Clinical Psychology 682 - 691.
 Recommended practice in Practice example from Judicial College (UK), above n 14, at 2.31-32 [139-40]. See for example R v Edwards, above n 138; R v Lubemba, above n 1, at ; Ward v R, above n 132. The NZ Court of Appeal has said that it may not be appropriate to put the case to a vulnerable witness in detail: A v R  NZCA 293 at -. See also R v Aitchison, above n 46 at  where the NZ High Court agreed defence counsel need not question an intellectually disabled adult complainant on peripheral details. There is also extensive English Court of Appeal case law restricting such questions where the witness is unlikely to be able to give an objectively reliable answer.
 R v Tatai  NZDC 4374 at , .
 E.g.: intellectually disabled defendants: Jones v R, above n 85; NZ Police v VT, above n 14; Burling v Police, above n 72; Police v HJ, above n 87; Stanley v Police, above n 73. FASD defendants: Police v HJ, above n 87 (defendant with FASD). ASD defendants: State of Western Australia v Mack, above n 46 (intellectually disabled defendant).
 E.g.: Intellectually disabled defendants: Ellery v Police  NZHC 480; Burling v Police, above n 72; R v Walls, above n 158; Dixon v R, above n 60; R v Monaghan, above n 35; R v Tuigamala  NSWSC 493 ACTSC 62. Defendants with FASD: Edri v R  NZCA 264; R v Powderface  ABPC 193. Defendants with autism: R v Massey-Hunter  NZHC 166; Ellery v Police, above n 162; R v Tu  NZHC 1780.
 Prosecution: s.8 8(1)(a); defence: s.88(2)(c).
 Prosecution: s.88(10(b); defence: s.88(2)(d).
 Prosecution: s.88(10(b); defence: s.88(2)(d).
 Schedule 4 High Court Rules.
 So useful are they that in England and Wales it is expected that GRH take place in every case involving a vulnerable witness or defendant, “save in very exceptional circumstances.” R v Lubemba, above n 1, at .
 See R v Lubemba, above n 1, at . Lubemba contains a useful discussion of what can be covered in a Ground Rules Hearing but see also R.3.9(7) Criminal Procedure Rules of England and Wales October 2016.
 This is mandatory in England & Wales: CPR 3.9(7)(a).
 Crown Prosecution Guidelines 2010 at [16.6].
 Karen Saywitz, Lynn Snyder and Rebecca Nathanson “Facilitating the Communicative Competence of the Child Witness” (2010) 3 Applied Developmental Science 58-68; Rebecca Nathanson and Karen Saywitz ”Preparing Children for Court: Effects of a Model Court Education Program on Children’s anticipatory anxiety” (2015) 33 Behavioural Sciences and the Law 459-75; J Wheatcroft and L Ellison “Effectiveness of Witness Preparation and Cross-Examination Non-Directive and Directive Leading Question Styles on Witness Accuracy and Confidence” (2012) 30 Behavioural Sciences and the Law 821-40.
Randell, I., Seymour, F., Henderson, E., & Blackwell, S. (2018). The Experiences of Young Complainant Witnesses in Criminal Court Trials for Sexual Offences,
Psychiatry, Psychology and Law, 25:3, 357-373,
 Te Wini v R, above n 52: Case where it was held a special measure that should have occurred was “The accused being brought to court to meet with counsel who could orientate the accused with the arrangements and layout of the courtroom and procedure”.
 See the Questioning Children Guideline.
 Ministry of Justice Operational Circular: Pre-recording of Evidence (s 103 to 107 Evidence Act 2006) CRM/11/05 and HCG/11/05 Wellington 19.4.2011; see also the very useful descriptions of process in R v Aitchison, above n 46.
 Emily Henderson and others “Pre-recording Children's Evidence: The Western Australian Experience” (2012) CLR 3-14.
 Emma Davies and Kirsten Hanna “Pre-recording testimony in New Zealand: Lawyer’s and victim advisor’s experiences in nine cases” (2013) 46 Australian & New Zealand Journal of Criminology 289 at 292.
 See for example R v Willeman, above n 46, where the witness was tetraplegic and his examination was pre-recorded at his home; R v Kereopa  DCR 29 (High Court Tauranga CRI-2007-087-411, 18 Sept 2007 per Heath J) where the witness was dying and unlikely to survive until trial. The Court of Appeal confirmed both cases were appropriate uses in M v R, above n 10.
 Ministry of Justice Operational Circular: Pre-recording of Evidence (s 103 to 107 Evidence Act 2006) CRM/11/05 and HCG/11/05 Wellington 19.4.2011; see also R v Sadlier unreported Akld DC CRI-2010-04404165, 7.12.10 per Wade J, and R v Aitchison, above n 46 setting out the procedure in practice.
 “The court is required to take every reasonable step to encourage and facilitate the attendance of vulnerable witnesses and their participation in the trial process.” R v Lubemba, above n 1, at . Making extra time and special accommodations for a vulnerable witness to understand questioning is entirely reasonable: R v Barker, above n 1, at ; R v Hetherington, above n 1, at , citing R v Lubemba, above n 1, at .
 See Spencer & Lamb Children and Cross-examination: Time to Change the Rules? Hart London 2011; Henderson E, Hanna K and Davies E “Pre-recording Children's Evidence: The Western Australian Experience”  CLR 3-14; Davies E and Hanna K “Pre-recording testimony in New Zealand: Lawyer’s and victim advisor’s experiences in nine cases” (2013) 46 Australian & New Zealand Journal of Criminology 289 at 292 ; Baverstock J Process Evaluation of Pre-recorded Cross-examination Pilot (Section 28) Ministry of Justice, London, 2016 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/553335/process-evaluation-doc.pdf.
 Emily Henderson “Dealing to pre-trial delay for vulnerable witnesses” (17 November 2016) New Zealand Law Society < http://www.lawsociety.org.nz/lawtalk/lawtalk-archives/issue-901/dealing-to-pre-trial-delay-for-vulnerable-witnesses> ; Baverstock, above n 239.