Anastasia Qvist is an outstanding lawyer. My criminal law situation (family violence order) was difficult, complex and Ana's diligence saved me as I was going through the most difficult period of my life. Ana is down to earth, commonsense and she even kept our costs to a minimum. She is a skilled litigator and knows the ins and outs of the ACT Magistrates Court. She dealt skillfully with the DPP and is an excellent negotiator. You will get a fair representation and she genuinely cares about her clients. She has my complete recommendation. The lady goes to bat for her clients.
I would strongly recommend Anastasia to anyone who is seeking legal representation. As a first-time offender who was charged with a Level 2 Drink Driving offence, she walked me through every step of the matter and was very upfront and clear on all aspects of my case. She was always accessible when I needed advice. Her approach and advice were excellent. Under her representation, I received the best possible outcome and managed to avoid a criminal conviction. She was a pleasure to deal with throughout the whole matter.
Anastasia Qvist was very professional and helpful in every step of my matter. I got a very good outcome and I can’t thank you enough for your hard work and the Armstrong Legal team in Canberra. I would highly recommend her!!!
Throughout Angela has been the consummate professional. She maintained a calm, yet strong demeanour remained informative and completely open in her communication and took complete ownership of the situation. We felt confident we finally had an advocate to steer us out of the nightmare we were in, and she did so with great respect and sincerity. I cannot speak more highly of Angela. She has literally rescued our family from what looked very much like a hopeless future.
Words can’t describe how grateful I am to Trudie Cameron being my solicitor and to Andrew Tiedt presenting my case in the court. They both have been very supportive and amazingly professional and effective. I’ve got an absolutely fantastic outcome I couldn’t even dream about.
Soon after meeting Andrew I knew he was the solicitor I wanted to handle my matter. He immediately sprang into action which brought me stability and hope during a tumultuous time in my life. Andrew was never afraid to give me straight answers to my tough questions which is a true mark of integrity. He is clearly at ease in the court environment and I believe his calm and measured demeanour went a long way to helping me secure the best result from my day in court. I would certainly recommend you approach Andrew if you need assistance.
"Andrew Tiedt was very professional and considerate to personal circumstances and gave sound advice that resulted in the best outcome possible. Highly recommended."
Fitness for Trial (NSW)
The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) was assented to in June 2020 and will replace the previous Mental Health (Forensic Provisions) Act 1990 (NSW). The new act will change the way the court system deals with defendants who have a mental health or cognitive impairment with the result that there is a question about their fitness for trial.
What is fitness for trial?
When a person is fit for trial this means they are capable of participating fully in the court process. This includes:
- understanding the court process;
- being able to give instructions to your lawyers;
- giving evidence in court;
- understanding what they are charged with;
- being able to plead to the charge; and
- understanding the proceeding for the purpose of determining whether they committed the offence they are charged with.
The enquiry into a person’s fitness to plead and stand trial concerns their mental condition at the time of the trial, not their mental condition at the time of the offence.
Anyone involved in the proceedings can question the defendant’s fitness to plead. This may be the defendant themselves, the prosecution or the court.
The issue of a person’s fitness to plead and stand trial can also be raised on more than one occasion.
The main question that will need to be asked by the court when a person with a mental or cognitive impairment is set to face trial is whether the defendant has the mental capacity to comprehend and fairly participate in the trial process.
The new statutory test of fitness for trial
The new Act establishes a statutory equivalent of the Presser test. The Presser test is the common law test for determining whether a person is fit to stand trial. This test enables the court—in a non-adversarial way—to look at whether a person can understand a trial, instruct lawyers and decide on a defence, among other things. The Presser test is an accepted way for courts to ascertain a person’s fitness for trial.
The changes to NSW law make these considerations from the Presser test explicit in a statutory test which states a person will be unfit to be tried if, because the person has a mental health impairment or a cognitive impairment, they cannot:
- Understand the offence
- Plead to the charge
- Understand the general nature of the proceedings as an inquiry as to whether the person committed the offence
- Make a defence or answer to the charge.
Part 4 of the Act deals with fitness for trial in the Supreme Court (including criminal proceedings within the summary jurisdiction of the Supreme Court) and the District Court.
Finding of unfitness by court
The Act also establishes new processes following a finding of unfitness. Currently, when a court finds a person unfit to be tried the defendant is referred to the tribunal. The tribunal also has a role in determining the defendant’s fitness to be tried and considers the likelihood of the person becoming fit to be tried within 12 months—that is, whether the person can be treated or supported to bring about fitness for trial. This means that even people with untreatable cognitive impairment such as dementia are referred to the tribunal for review, with their trial delayed for up to 12 months.
The new provisions remove unnecessary delay by enabling a court to decide firstly, whether a person is unfit for trial and secondly, whether a person may become fit for trial sometime in the future. This means that only individuals who may become fit for trial are referred to the tribunal. The removal of this delay removes unnecessary distress to the defendant and to victims of the defendant, as well as needless use of the resources of the tribunal.
Those unlikely to become fit for trial will be tried as soon as possible through the special hearings process, pending approval by the Director of Prosecutions. Special hearings are modified criminal trials that are held by the District Court or the Supreme Court when a person is not fit for trial. Special hearings are to occur as soon as practicable following advice from the Director of Public Prosecutions that they are to continue to prosecute, notwithstanding that the defendant is unfit to be tried.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
WHERE TO NEXT?
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.
WHY CHOOSE ARMSTRONG LEGAL?
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