R v Lim

1. [1]

   The accused, Richard Po Lun Lim, is charged by indictment that, on 4 January 2024 at Bankstown in the State of New South Wales he did:

   1. (1)

      intentionally choke Fatima Bardouh so as to render her incapable of resistance and was reckless as to rendering her incapable of resistance contrary to s 37(1) of the Crimes Act 1900 (NSW) (Count 1);

   2. (2)

      assault Wafaa Ghantous, thereby occasioning to her actual bodily harm, contrary to s 59(1) of the Crimes Act (Count 2);

   3. (3)

      intentionally choke Wafaa Ghantous so as to render her incapable of resistance and was reckless as to rendering her incapable of resistance contrary to s 37(1) of the Crimes Act (Count 3); and

   4. (4)

      murder Samira Kamaleddine contrary to s 18(1)(a) of the Crimes Act (Count 4).

2. [2]

   The accused was arraigned in this Court on 6 March 2026. On that occasion, the Court was informed that the Crown and the legal representatives for the accused had agreed, for the purposes of s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”), that the proposed evidence in the proceedings established a defence of mental health impairment to each of the charges. In these circumstances, Hamill J listed for hearing before me the evidentiary inquiry contemplated by s 31 of the Act.

3. [3]

   That hearing commenced on 30 March 2026 and was stood over part-heard in circumstances I will return to.

4. [4]

   A joint tender bundle was received into evidence and marked as Exhibit A. It consisted of:

   1. (1)

      the Indictment;

   2. (2)

      a statement of facts agreed upon by the parties pursuant to s 191 of the Evidence Act 1995 (NSW);

   3. (3)

      a psychiatric report prepared by Dr Andrew Ellis and dated 20 August 2025. Dr Ellis had been retained by the accused to prepare this report; and

   4. (4)

      a psychiatric report prepared by Dr Adam Martin and dated 30 October 2025. Dr Martin had been retained by the Crown to prepare this report.

5. [5]

   I was greatly assisted by the submissions made by Mr Boyle, who appeared for the Crown, and Ms Fernando, who appeared for the accused. The special hearing before me was conducted by them in a collaborative manner and with great efficiency.

The statutory framework and nature of a s 31 evidentiary inquiry

1. [6]

   The defence of mental health impairment is provided by s 28 of the Act. It provides:

2. [7]

   The term “mental health impairment” is defined in s 4 of the Act as follows:

3. [8]

   As was observed in R v Siemek (No. 1) [2021] NSWSC 1292 at [84]-[86], the defence of mental health impairment under s 28(1) of the Act has two elements. First, the accused must establish that, at the time of carrying out the act constituting the offence, they have a mental health impairment or cognitive impairment or both. Next, they must establish that the relevant impairment had either of the effects referred to in s 28(1)(a) or (b).

4. [9]

   Section 28(2) makes clear that proof of each element is to be determined on the balance of probabilities. The accused must establish these elements because the onus rests upon them to displace the presumption provided for in s 28(3).

5. [10]

   Pursuant to s 6 of the Act, the reference to “jury” in s 28(2) includes a judge in proceedings determined by a judge alone.

6. [11]

   It follows from the above that, ordinarily, a criminal trial would be conducted in which the Crown would bear the onus of proving the elements of the offences charged beyond reasonable doubt, and it would be for the accused to establish on the balance of probabilities each element of the defence of mental health impairment under s 28(2) of the Act.

7. [12]

   As noted in R v Jackson [2021] NSWSC 1404 at [10], s 31 of the Act modifies these ordinary procedures and permits the Court to consider the agreed position of the parties as to the availability of a defence under s 28(2) without the need for a criminal trial. It provides that:

8. [13]

   The procedure contemplated by s 31 is not a judge alone trial in the sense contemplated by s 132 of the Criminal Procedure Act 1986 (NSW) and is instead routinely described as a “special hearing” or “evidentiary inquiry”. The Court, in finding it is satisfied that a defence of mental health impairment is established, is not required to expose its reasoning process linking the principles of law with the facts found which justify the verdict reached in the sense contemplated by Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [28]. Nevertheless, in the interests of transparency and in conformity with the principles of open justice, it is appropriate to provide reasons for any decision to return a special verdict under s 31: Siemek (No. 1) at [21]-[22]; R v Batey [2025] NSWSC 1585 at [6].

9. [14]

   An agreement by the parties to proceed by way of s 31 of the Act does not relieve the Crown of its obligation to prove the physical elements of the alleged offences to the criminal standard. If it does so, and the Court is satisfied that the defence of mental health impairment is established for the purposes of s 31(c) of the Act, the Court is required to enter a special verdict under that section of “act proven but not criminally responsible” and consider what consequential orders should be made under ss 33 and 34 of the Act: Jackson at [8].

10. [15]

    Drawing the above together, to enter a special verdict under s 31 of the Act in the context of the present case, I must first be satisfied of each of the following matters:

    1. (1)

       That the procedural preconditions identified in ss 31(a) and (b) have been established;

    2. (2)

       That the Crown has proved the physical elements of the alleged offences beyond reasonable doubt;

    3. (3)

       That, at the time of carrying out the acts constituting the offences, the accused had a mental health impairment; and

    4. (4)

       That the relevant impairment had either of the effects referred to in ss 28(1)(a) or (b) of the Act.

The procedural thresholds in s 31

1. [16]

   The Crown and the accused agree that the proposed evidence in the proceedings establishes a defence of mental health impairment; each refers to an agreement having been reached in their respective written submissions.

2. [17]

   The accused has at all relevant times been represented by very experienced solicitors and counsel.

3. [18]

   In these circumstances, I am comfortably satisfied that the requirements of ss 31(a) and (b) have been met in the present case.

Has the Crown proved the physical elements of the offences?

1. [19]

   The Crown properly accepts that, before turning to the defence of mental health impairment, I must first be satisfied that it has proved beyond reasonable doubt each of the physical elements of the offences charged in the Indictment. However, I need not consider the question of proof of the mental element (if any) of the offences at this stage: Siemek (No. 1) at [16].

2. [20]

   The following summary is drawn from the statement of facts agreed upon by the parties pursuant to s 191 of the Evidence Act. As such, evidence is not required to prove any of those facts and I find the existence of each of the facts set out in that document to be proved.

3. [21]

   At the time of the relevant events, the accused was 28 years old. During the day on 3 January 2024, he drove his motor vehicle into a telegraph pole in Bankstown. Ambulance officers attended the scene of the accident and attended to the accused, noting that he did not appear to have sustained any serious injuries in the accident. The accused was breath tested at the scene of the accident and returned a negative result.

4. [22]

   During conversations with police, the accused stated that he did not remember how the accident had occurred and did not know if he was sleepy. He was conveyed by ambulance to Bankstown Hospital for a further medical assessment.

5. [23]

   Upon arrival at Bankstown Hospital, the accused was seen by medical staff. Certain tests were performed by medical staff, which detected nothing out of the ordinary. Nevertheless, the accused remained at the hospital so that he could be monitored overnight. He was placed in a chair bed in the hospital’s emergency department.

6. [24]

   Later on the same day, Samira Kamaleddine was also conveyed by ambulance to Bankstown Hospital. She was 80 years old. Ms Kamaleddine was accompanied by her daughter, Fatima Bardouh, then aged 58 years old. Later that evening, they were joined by Ms Kamaleddine’s second daughter, Wafaa Ghantous, then aged 63 years old.

7. [25]

   After being triaged, Ms Kamaleddine was placed in a chair bed in the same emergency area as the accused. While waiting in this area to see a doctor, the three women were laughing and joking together, with Ms Ghantous taking videos of her mother who was in good spirits, laughing and smiling.

8. [26]

   The agreed facts also refer to a friendly interaction between Ms Kamaleddine and the accused during the evening of 3 January 2024, the details of which are of no immediate relevance.

9. [27]

   During the early hours of 4 January 2024, Ms Kamaleddine was seen by a doctor and asked to provide a urine sample. Sometime later, Ms Kamaleddine and her two daughters stood up and started making their way towards the bathroom.

10. [28]

    As the three women made their way down the corridor towards the bathroom, they were approached from behind by the accused. He grabbed Ms Bardouh around her neck. She felt the accused’s arm come around in a slapping motion from the right side of her face, hitting her hard under her neck and holding her in a choking motion. Ms Bardouh struggled to breathe for a few seconds and made rasping noises.

11. [29]

    Ms Bardouh sustained injuries to her face and neck as a result of the assault by the accused. She suffered pain and tightness around her neck and back and bruising to her lower neck.

12. [30]

    Upon hearing the rasping noises being made by her sister, Ms Ghantous turned around and saw that she was being assaulted by the accused. She screamed for help, whereupon the accused released his grip of Ms Bardouh and turned towards Ms Ghantous.

13. [31]

    The accused grabbed Ms Ghantous and placed her in a headlock. He hit her in the face as he did so. This caused immediate pain to Ms Ghantous’ nose, lips and chin. She felt she could not breathe at all.

14. [32]

    Ms Bardouh began screaming for help and ran from the area to alert medical staff and seek assistance. The accused, with his arm still around Ms Ghantous’ neck, dragged her into a small room situated off the corridor. He let go of her neck and pushed her chin, causing her to hit her head and back on the wall. The accused then pushed her down so she was sitting on the floor against the wall. He used his hands to push, pull and squeeze her neck. This caused her a lot of difficulty breathing and she was in fear of her life.

15. [33]

    Several Bankstown Hospital staff arrived on scene and observed the accused slamming Ms Ghantous’ head against a metal railing, wall and metal door frame, whilst holding on to her neck in what they considered to be a headlock position. The accused slammed Ms Ghantous’ head at least four times.

16. [34]

    Hospital staff attempted to push the accused away from Ms Ghantous. The accused resisted. He appeared extremely tired and unsteady on his feet, causing him to lose his balance. Hospital staff tried to physically intervene further. Various staff screamed at the accused to “leave her, leave her”. However, the accused continued, saying “she was laughing at me, she was laughing at me” or “they were laughing at me”.

17. [35]

    Hospital staff on scene pressed the duress alarm to notify security and notified all staff via a buzzer that a serious emergency was occurring.

18. [36]

    The accused attempted to push hospital staff away before eventually letting go of Ms Ghantous. He stared at the hospital staff with intense eyes. The accused attempted to hit out at the hospital staff but was unsuccessful.

19. [37]

    Ms Ghantous was still unable to breathe, and her vision was very blurry. Hospital staff assisted Ms Ghantous and Ms Bardouh out of the room to render medical assistance to them.

20. [38]

    Ms Ghantous sustained injuries to her face and neck as a result of the assault by the accused. She sustained bruising along her neckline, consistent with a hand having attempted to strangle her. She also received a bloodied swollen lower lip and experienced pain and tenderness in her neck area.

21. [39]

    The accused also left the room, re-entering the hallway where Ms Kamaleddine was still standing. He punched her with a closed fist to the left side of her face at full force. This caused Ms Kamaleddine to fall backwards and hit her head. The force of the punch also caused immediate bruising and swelling. Ms Kamaleddine was bleeding profusely from her mouth from multiple broken teeth.

22. [40]

    Staff attempted to restrain and sedate the accused while Ms Kamaleddine was attended to by a doctor. She was found to have suffered a left subdural haematoma up to 17 mm in depth and subarachnoid haemorrhage. She also sustained a left side cheek haematoma, and significant bruising and swelling to her face. She appeared confused and was unable to understand commands.

23. [41]

    A scan of Ms Kamaleddine’s brain the following day showed an increase in the subdural haematoma. However, due to her age and fragility, doctors determined that Ms Kamaleddine was not a good candidate for surgical intervention. She was admitted under the care of the neurology team who planned to wait a week before carrying out a further scan of her brain.

24. [42]

    A further scan of Ms Kamaleddine’s brain conducted on 11 January 2024 revealed that her subdural haemorrhage remained acute. Her condition worsened, and on 28 January 2024, a further scan showed new bleeding of the subdural haemorrhage. She was transported to Liverpool Hospital where she underwent urgent neurosurgical intervention, which involved the creation of a burr hole to relieve pressure on her brain.

25. [43]

    Ms Kamaleddine was transferred from intensive care into a ward on 5 February 2024. However, her condition worsened. She had an extension of a brain bleed, and it was determined by treating doctors that further surgical intervention would be futile.

26. [44]

    Following consultation between Ms Kamaleddine’s family and her doctors, a decision was made that she should return to her family home for palliative end-of-life care. She passed away on the evening of 9 February 2024.

27. [45]

    An autopsy was carried out on Ms Kamaleddine. The post-mortem report identified the cause of death as “complications of head injury”. The report went on to note that “while no CT scan of the deceased’s brain was performed prior to the assault, the initial CT scan of the brain immediately after the assault showed an acute subdural haematoma, suggesting recent injury. The subsequent chain of events stems from complications, including the treatment, of the subdural haematoma.”

28. [46]

    The accused does not dispute that the actions which constituted the alleged offences were voluntary on his part.

29. [47]

    In his psychiatric report, Dr Ellis opines that, at the time of the above events, the accused likely knew that he was attacking people with force. To similar effect, Dr Martin has expressed the view that, when he committed the above actions, the accused would have had an appreciation of the nature and quality of the acts as intentional violence, even if he did not consider the severe consequences of his actions.

30. [48]

    I am comfortably satisfied that the acts of the accused to which I have referred above were voluntary in the relevant sense. I am satisfied by the above that the Crown has proved, beyond reasonable doubt, the factual elements of each of Counts 1 to 4.

Preliminary observations regarding the expert evidence

1. [49]

   In Siemek (No. 1), Johnson J observed (at [91]-[92]) that:

2. [50]

   In Da-Pra v R; R v Da-Pra [2014] NSWCCA 211, RA Hulme and Bellew JJ observed at [337], citing R v Iusi Afele [2014] NSWSC 366:

3. [51]

   Both Dr Martin and Dr Ellis are highly experienced forensic psychiatrists. As is apparent from what follows, there is no material disagreement between them as to the opinions they have each expressed about the accused. Both have concluded that the accused has an available defence of mental health impairment. There is no evidence before me that would cast any doubt on their evidence on this issue.

4. [52]

   Whilst I do not refer below to the careful and detailed reasons each has given in expressing these views, I have considered those reasons. Much like their ultimate opinions, there is little disagreement in the reasons each psychiatrist has given for having reached them.

Did the accused have a mental health impairment when he carried out the acts constituting the offence?

1. [53]

   In addressing this question, both psychiatrists have reflected on events which occurred in the weeks leading up to 4 January 2024.

2. [54]

   The accused reported to both psychiatrists that, prior to December 2023, he had not received any form of psychiatric treatment or been prescribed psychiatric medication.

3. [55]

   On 28 December 2023, the accused presented to the emergency department at Hornsby Hospital with a scrotal abscess. While there, he became behaviourally disturbed and was ultimately required to be restrained by hospital security. The accused displayed “lack of short term memory” and “disorganised behaviour, including standing on his bed, frequently shifting position and posture, yelling, and resisting the six times security holding him down on the bed”.

4. [56]

   The accused was scheduled under the provisions of the Mental Health Act 2007 (NSW) and assessed by a psychiatrist. The diagnosis was “unclear”. He was provisionally diagnosed as having a mental disorder and reference was made to him having suffered delirium and “acute psychosis due to a number of causes – stress, sleep deprivation, primary psychotic disorder”.

5. [57]

   The accused was discharged from Hornsby Hospital on 31 December 2023, between three and four days prior to the motor vehicle accident which led to his admission to Bankstown Hospital. At the time of his discharge from Hornsby Hospital, the accused was referred for outpatient mental health follow up but did not attend.

6. [58]

   Dr Ellis points to the events immediately following the accused’s presentation at Hornsby Hospital and the circumstances surrounding his motor vehicle accident on 3 January 2023 as being consistent with an early episode of psychosis. Dr Martin has expressed a similar view, describing the accused as having been “in the throes of a ‘first-episode psychosis’ at the time of the alleged offending.”

7. [59]

   Dr Ellis has expressed the following views:

8. [60]

   To similar effect, Dr Martin has concluded that:

9. [61]

   I accept the views expressed by each psychiatrist on these issues and am satisfied that, on 4 January 2024, the accused was suffering from a psychotic disorder (schizophrenia) and that it had the qualities contemplated by ss 4(1)(a), (b) and (c) of the Act. As such, I am satisfied that, at the time of carrying out the acts constituting the offences, the accused had a mental health impairment. The first element of the defence of mental health impairment is, therefore, established.

Did the accused’s mental health impairment have one or other of the effects referred to in ss 28(1)(a) or (b) of the Act?

1. [62]

   Reflecting on the events of 4 January 2024, Dr Ellis concluded:

2. [63]

   To similar effect, Dr Martin has relevantly observed:

3. [64]

   I accept these opinions and am satisfied that, at the time of carrying out the acts constituting the offences, the accused’s mental health impairment had the effect that he did not know that those acts were wrong in the sense contemplated by s 28(1)(b) of the Act. As such, I am satisfied that the second element of the defence of mental health impairment is also established and that the defence of mental health impairment has been established in relation to each of the offences charged in the Indictment.

The appropriate consequential orders

1. [65]

   As I am satisfied that the defence of mental health impairment has been met for the purposes of s 31(c) of the Act, I must consider the appropriate orders to make under s 33 and must also refer the accused to the Mental Health Review Tribunal: see s 34 of the Act.

2. [66]

   The sole area of dispute between the parties at the hearing before me related to the orders to be made if I were satisfied that s 31 of the Act had been engaged. The difference between the parties’ proposed orders was subtle but potentially important.

3. [67]

   The Crown contended that I should order that the accused “be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law” (emphasis added). Alternatively, the accused submitted that it would be more appropriate to order that he “be detained in the Forensic Hospital, Malabar until released by due process of law” (emphasis added).

4. [68]

   The accused expressed no difficulty with the notion that the Mental Health Review Tribunal ought to be given the power to determine where he be detained moving forward. The fundamental issue raised by the accused is that I should not make orders that he be detained in a correctional facility.

5. [69]

   In support of this, the accused pointed to the following views expressed by Dr Ellis as to his likely prognosis:

6. [70]

   Reliance was also placed on the following similar observations made by Dr Martin:

7. [71]

   The accused submits that the forensic mental health rehabilitation he requires and would likely benefit from – including the psychosocial interventions alluded to by Dr Martin – are critical matters that ought to be addressed as soon as possible. The accused said that these matters are best able to be addressed in a therapeutic setting and not through the “best efforts” Mental Health Unit within a correctional centre. There is significant force in this contention.

8. [72]

   The accused further points to the fact that he has never before been charged with any criminal offence, nor come to the attention of police. Nevertheless, he has now been in a correctional setting for more than two years. It was submitted that the correctional centres proposed are designed to meet the requirements of s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which relevantly include punishment, deterrence, denouncement, and retribution. It was said by the accused that all of these considerations are “completely inappropriate where the defence of mental health impairment has been established. Once again, there is significant force in this contention.

9. [73]

   However, in response to an enquiry by the Crown as to the ability of the Forensic Hospital at Malabar to accommodate the accused, its Acting Clinical Director advised that:

10. [74]

    In these circumstances, and absent knowledge of the particular circumstances of the many individuals apparently awaiting transfer to the Forensic Hospital – or of their acute needs relative to those of the accused – I do not consider it appropriate to order that the accused be given one of the limited number of places at the Forensic Hospital. Rather, I will leave it to the Mental Health Review Tribunal to determine the most appropriate setting for the accused to receive the forensic mental health rehabilitation he requires.

Victim Impact Statements

1. [75]

   The Crown foreshadowed an intention to tender victim impact statements prepared by Ms Bardouh, Ms Ghantous, and Moustapha Kamaleddine.

2. [76]

   After hearing submissions from the parties, the proceedings were adjourned for a brief period to enable me to consider those submissions and provide an opportunity to the Crown to finalise any victim impact statements.

3. [77]

   Section 30L of the Crimes (Sentencing Procedure) Act provides that victim impact statements may be accepted after a special verdict of act proven but not criminally responsible has been returned. It is important that those victim impact statements are both received and acknowledged.

4. [78]

   After returning a special verdict of act proven but not criminally responsible in relation to each charge listed in the Indictment, I propose to receive such victim impact statements as might be obtained by the Crown and have them marked as Exhibit B. I further propose to direct that copies of these victim impact statements be included amongst the material referred to the Mental Health Review Tribunal, as required by s 30N(4) of the Act.

5. [79]

   The entry of a special verdict does not in any way diminish the tragic consequences of the accused’s actions on 4 January 2024.

6. [80]

   Ms Bardouh and Ms Ghantous were present at Bankstown Hospital that morning because their mother needed medical care. Given her age and medical issues, Ms Kamaleddine was inherently vulnerable. Despite the best efforts of hospital staff, time spent in a busy emergency department in the early hours of the morning was always going to be a stressful and unsettling experience for her. Ms Bardouh and Ms Ghantous were there only to provide care and support to their mother.

7. [81]

   Nothing the three women did provoked, or in any way contributed to, the spontaneous and violent actions of the accused. While those actions were the product of the accused’s acute mental illness, they were nevertheless the source of extreme trauma for Ms Bardouh and Ms Ghantous, and resulted in the death of a matriarch who was much loved by her family and community.

8. [82]

   The effect of the orders and directions I propose to make is that the accused will be detained as a forensic patient under the supervision of the Mental Health Review Tribunal.

9. [83]

   He may only be released if the Mental Health Review Tribunal is satisfied that the safety of the accused or any member of the public will not be seriously endangered by his release: s 84(2) of the Act.

10. [84]

    His case will be reviewed by the Mental Health Review Tribunal as soon as practicable and will be subject to review at six monthly intervals: s 78 of the Act. The Mental Health Review Tribunal may review him at any time: s 79 of the Act.

11. [85]

    If the accused is released in the future, it may be with conditions, and if any of those conditions are breached or his mental condition deteriorates to a point where he may become a serious danger to others, the Mental Health Review Tribunal may order that he be apprehended and further detained: s 109 of the Act.

12. [86]

    On the charge that on 4 January 2024 at Bankstown in the State of New South Wales the accused did intentionally choke Fatima Bardouh so as to render her incapable of resistance and was reckless as to rendering her incapable of resistance contrary to s 37(1) of the Crimes Act 1900 (NSW), I enter a special verdict of act proven but not criminally responsible.

13. [87]

    On the charge that on 4 January 2024 at Bankstown in the State of New South Wales the accused did assault Wafaa Ghantous, thereby occasioning to her actual bodily harm, contrary to s 59(1) of the Crimes Act, I enter a special verdict of act proven but not criminally responsible.

14. [88]

    On the charge that on 4 January 2024 at Bankstown in the State of New South Wales the accused did intentionally choke Wafaa Ghantous so as to render her incapable of resistance and was reckless as to rendering her incapable of resistance contrary to s 37(1) of the Crimes Act, I enter a special verdict of act proven but not criminally responsible.

15. [89]

    On the charge that on 4 January 2024 at Bankstown in the State of New South Wales the accused did murder Samira Kamaleddine contrary to s 18(1)(a) of the Crimes Act, I enter a special verdict of act proven but not criminally responsible.

16. [90]

    I make the following orders and directions:

    1. (1)

       Pursuant to s 33 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Richard Po Lun Lim is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law.

    2. (2)

       Pursuant to s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Richard Po Lun Lim is referred to the Mental Health Review Tribunal.

    3. (3)

       The Registrar is to notify the Minister for Health of these orders as soon as is practicable.

    4. (4)

       The Registrar is to notify the Mental Health Review Tribunal of the verdicts and these orders as soon as is practicable and to provide to that body the following documents:

    5. (5)

       The Registrar is to notify Justice Health of the verdicts and these orders as soon as is practicable, and provide to that body: