Director of Public Prosecutions v Nancarrow
[2024] VSC 717
•19 November 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0214
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| NEIL NANCARROW | Accused |
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JUDGE: | Elliott J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 November 2024 |
DATE OF JUDGMENT: | 19 November 2024 |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Nancarrow |
MEDIUM NEUTRAL CITATION: | [2024] VSC 717 |
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CRIMINAL LAW – Murder – Consent mental impairment – Verdict of not guilty because of mental impairment – Accused declared liable to supervision – Matter adjourned to allow for report and certificate of available services to be obtained – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 21, 24, 41, 47.
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | J Lewis SC | Office of Public Prosecutions |
| For the respondent | D De Witt | Victoria Legal Aid |
HIS HONOUR:
A. Introduction
The accused, Neil Nancarrow (“Nancarrow”), has been charged with the murder of his father (“the Deceased”). On 30 September 2023, Nancarrow attacked the Deceased while experiencing symptoms of acute psychosis. The Deceased later died in hospital on 15 October 2023.
The defence of mental impairment has been raised in this proceeding prior to the empanelment of a jury and in circumstances where the prosecution and defence agree that the proposed evidence establishes the defence.[1]
[1]And therefore could be heard by a judge alone: see Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 21(4).
The court’s task is to determine whether, based on the evidence, the defence has been established.
B. Events of 30 September 2023
The following account is based on the summary of prosecution opening filed in the proceeding.
Nancarrow was 47 years old at the time of the incident and was experiencing homelessness. He has a history of mental illness which was aggravated by the use of illicit drugs, namely methylamphetamine.
There was a long history of family violence between Nancarrow and the Deceased. At the time of the incident, a family violence intervention order was in place which listed Nancarrow as the respondent and the Deceased and his wife (Nancarrow’s mother) as protected persons.
Nancarrow frequently attended his family home in the western suburbs of Melbourne and remained there for days or weeks at a time as a result of his homelessness. The Deceased and his wife would allow Nancarrow to stay at the family home on these occasions, and would attempt to assist him to secure stable accommodation. However, the situation would often deteriorate and the Deceased and his wife would regularly resort to contacting the police, fearing for their safety.
On 30 September 2023, at approximately 1.50pm, the Deceased and Nancarrow were at the family home. Also present were the Deceased’s wife and a family friend. The group were sitting outside under the carport of the home when the Deceased got up and walked inside to use the restroom, at which time the Deceased’s wife and the family friend left the premises.
Nancarrow remained under the carport for a short time before entering the family home and approaching the Deceased. An altercation ensued during which the Deceased sustained an injury to his head. This injury caused the Deceased to bleed heavily.
The Deceased fled and went to a neighbour’s front door seeking assistance. The neighbour opened her front door and saw blood on the Deceased’s face and clothing. The Deceased asked his neighbour to call the police, at which time the neighbour saw Nancarrow running towards her house. The Deceased’s neighbour closed her front door and called emergency services. She then heard a commotion outside her front door but did not open it again.
Nancarrow continued to assault the Deceased. During the assault, Nancarrow removed his t-shirt and forced it into the Deceased’s mouth and throat, obstructing his airways.
At 2.36pm, police arrived at the scene. Nancarrow was captured on a police body-worn camera standing over the Deceased. Nancarrow was forcibly holding his t-shirt to the Deceased’s mouth. The Deceased was bleeding profusely and was struggling to breathe.
Nancarrow was placed under arrest and police moved the Deceased into the recovery position and extracted the t-shirt from his mouth. Paramedics attended a short time later and the Deceased was transported to the Royal Melbourne Hospital where he remained in the intensive care unit until his death on 15 October 2023.
The Deceased was 76 years old at the time of his death.
C. Subsequent events
Nancarrow was taken to the local police station for interview. He advised police that his knuckles were sore and was subsequently transported to the local hospital by ambulance under police guard. Nancarrow had broken a bone in his left hand. A cast was placed on his left arm and he was given pain management medication. Nancarrow was then transported back to the police station for interview at 12.43am on 1 October 2023.
Following an assessment by a forensic medical officer, it was determined that Nancarrow was not fit to be interviewed by police, and a mental health assessment was recommended.
Nancarrow was charged with serious assault and a breach of an intervention order that day and remanded into custody, where he has remained since.
The Deceased’s condition deteriorated between his admission to hospital on 30 September 2023 and the date of his death on 15 October 2023. A post-mortem examination conducted on 16 October 2023 revealed the Deceased’s cause of death to be “sequalae of blunt force head injuries”. It was noted that other contributing factors included “pulmonary thromboembolism in setting of deep vein thrombosis, liver cirrhosis, ischemic heart disease”.
D. Defence of mental impairment
Section 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) states:
(1) The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that—
(a) he or she did not know the nature and quality of the conduct; or
(b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).
(2) If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.
The defence did not dispute that Nancarrow committed the acts constituting the offence of murder. However, it was submitted on Nancarrow’s behalf that he did not know that the conduct was wrong.
E. Psychiatric evidence
In support of this submission, the defence relied upon a report prepared by forensic psychiatrist Dr Prashant Pandurangi (“Pandurangi”) dated 1 April 2024. Pandurangi expressed the opinion that the defence of mental impairment was open to Nancarrow.
In response, the prosecution obtained a psychiatric report from a consultant forensic psychiatrist, Dr Carolyn Simms (“Simms”), dated 2 September 2024. Simm’s report also supported the conclusion that a defence of mental impairment was available and relevant to Nancarrow.
As this matter is being dealt with by consent, it is unnecessary to iterate the extensive details of Nancarrow’s mental ill-health provided in the reports of Pandurangi and Simms. However, some matters should be outlined.
In Pandurangi’s assessment, at the time of the Deceased’s death, Nancarrow was experiencing acute psychosis as part of a relapse of his schizophrenia. Those symptoms included a delusional belief that the Deceased was actually replaced by a malevolent entity which he believed was the “devil”. Nancarrow was also experiencing grandiose and persecutory beliefs that he was fighting a “holy war” and was experiencing strong auditory hallucinations and referential ideas that he had to “beat the devil into submission”.
Further, Nancarrow described that on the day of the incident, he continued to receive subliminal messages from the devil asking him to fight. He also believed he received a message from the television to attack the Deceased, and that during the altercation he decided to take off his t-shirt and force it down the Deceased’s throat as “religious significance”. Pandurangi formed the view that, based on the available evidence, it is likely that Nancarrow was not entirely aware of the nature and quality of his conduct and that he would have been unable to reason that his conduct was wrong.
Nancarrow’s delusions, among other things, were also referred to in Simms’ report. In that report, Simms considered that it was unlikely that Nancarrow would have been able to appreciate the nature and quality of his conduct because at the time, Nancarrow believed he was helping people and ridding the world of evil. In addition, Simms was of the opinion that Nancarrow was acutely psychotic at the time of the incident and, given the nature of his symptoms, he was unable to reason with a moderate degree of sense and composure about whether his conduct, as perceived by reasonable people, was wrong.
The evidence of both Pandurangi and Simms indicated that on 30 September 2023, Nancarrow was suffering psychotic symptoms consistent with a relapse of schizophrenia following a period of non-compliance with his prescribed medication. Both experts were of the opinion that the defence of mental impairment under section 20(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act was available.
F. Findings and orders
Having read the evidence, I am satisfied that it establishes the defence of mental impairment under section 20(1)(b), as Nancarrow was suffering from a mental impairment at the time of engaging in the conduct constituting the offence, the effect of which was that he did not know that his conduct was wrong (that is, he could not reason with a moderate degree of sense and composure about whether his conduct, as perceived by reasonable people, was wrong).
Accordingly, I direct a verdict of not guilty because of mental impairment be recorded,[2] and declare Nancarrow liable to supervision under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act. Nancarrow will be remanded in custody in prison, pending the preparation of a further report on his mental condition as required by section 41(1), and the provision of a certificate of available services pursuant to section 47 of the Act.
[2]Crimes (Mental Impairment and Unfitness to be Tried) Act, s 21(4)(a).
I am also satisfied that there is no practicable alternative to remanding Nancarrow in custody in a prison in the circumstances that presently exist, and note that this was conceded by Nancarrow’s counsel.[3]
[3]Ibid, s 24(3).
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