AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Supreme Court 16 April 2026

R v Lim

[2026] NSWSC 378

Assault & violenceHomicide
CRIME MURDER DEFENCE OF MENTAL HEALTH IMPAIRMENT WHERE PARTIES AGREE DEFENCE AVAILABLE

Citation: [2026] NSWSC 378
Court: Supreme Court of New South Wales
Date: 16 April 2026
Judge(s): Muston J

Background

The accused, a 28-year-old man, was charged with four offences arising from events that occurred on 4 January 2024 at Bankstown Hospital. The charges comprised two counts of intentional choking (contrary to s 37(1) of the Crimes Act 1900), one count of assault occasioning actual bodily harm (contrary to s 59(1)), and one count of murder (contrary to s 18(1)(a)).

The accused had been brought to the hospital on 3 January 2024 after driving his vehicle into a telegraph pole in Bankstown. He returned a negative breath test and did not appear to have sustained serious injuries, but was kept overnight for monitoring in the emergency department. Also present in the emergency department was an 80-year-old woman, Samira Kamaleddine, accompanied by her two adult daughters. The agreed facts describe a friendly interaction between the deceased and the accused during the evening. In the early hours of 4 January 2024, as the three women were making their way down a corridor, the accused attacked all three — choking one daughter, assaulting and choking the other daughter, and ultimately killing the elderly woman.

Both the Crown and the defence agreed that the proposed evidence established a defence of mental health impairment under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). Rather than proceeding to a full criminal trial, the matter was listed for a special evidentiary inquiry under s 31 of that Act. Two psychiatric reports — one prepared by Dr Andrew Ellis (retained by the accused) and one by Dr Adam Martin (retained by the Crown) — were tendered as part of a joint exhibit bundle along with an agreed statement of facts and the indictment.

  • Whether the procedural preconditions under s 31(a) and (b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 were satisfied (agreement between parties and legal representation of the accused).
  • Whether the Crown had proved the physical elements of each of the four charged offences beyond reasonable doubt.
  • Whether, at the time of carrying out the relevant acts, the accused had a "mental health impairment" within the meaning of s 4 of the Act.
  • Whether that impairment had either of the effects described in s 28(1)(a) (the accused did not know the nature and quality of the act) or s 28(1)(b) (the accused did not know the act was wrong) — to be established on the balance of probabilities.

Decision

Muston J began by setting out the statutory framework governing the defence of mental health impairment under s 28 and the special verdict procedure under s 31 of the Act. His Honour emphasised that even where both parties agree the defence is established, the Court retains an independent obligation under s 31(c) to be satisfied that the defence is made out on the evidence. The agreement of the parties does not relieve the Crown of the obligation to prove the physical elements of the offences to the criminal standard, although the mental elements need not be separately proved at this stage.

On the procedural requirements, the Court was comfortably satisfied that both the Crown and the accused agreed the proposed evidence established the defence, and that the accused was represented by experienced legal practitioners throughout, meeting the thresholds in ss 31(a) and (b).

Turning to the physical elements of the offences, Muston J relied on the agreed statement of facts tendered under s 191 of the Evidence Act 1995. Those facts described the accused approaching the three women from behind, choking one daughter around the neck (Count 1), assaulting and then choking the second daughter (Counts 2 and 3), and fatally attacking the 80-year-old deceased (Count 4). The Court was satisfied beyond reasonable doubt that the physical elements of all four offences were established.

On the defence of mental health impairment itself, the Court considered the two psychiatric reports. While the full text of the judgment was truncated and the detailed psychiatric analysis is not available, both experts had been retained by opposing parties, and both the Crown and the defence agreed that the evidence established the defence. Muston J, having considered that evidence, was satisfied on the balance of probabilities that the accused had a mental health impairment at the time of the offences and that the impairment had one or both of the effects specified in s 28(1)(a) or (b). His Honour noted the importance of providing reasons in the interests of transparency and open justice, following Siemek (No. 1) and Batey.

Orders Made

  • A special verdict of "act proven but not criminally responsible" was entered under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 in respect of all four counts on the indictment.
  • The Court was required to consider consequential orders under ss 33 and 34 of the Act (the specific disposition orders are not detailed in the truncated portion of the judgment).

Key Takeaways

  • Section 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 provides an efficient alternative to a full trial where both parties agree the defence of mental health impairment is made out, but the court must independently assess the evidence and satisfy itself that the defence is established; the parties' agreement alone is not sufficient.
  • Even in a s 31 evidentiary inquiry, the Crown's burden to prove the physical elements of each offence beyond reasonable doubt persists. However, the mental elements of the offences need not be separately proved at this stage.
  • Under s 28, the defence of mental health impairment involves a two-limb test: the Supreme Court assessed both the existence of a qualifying mental health impairment at the time of the acts and its effect on the accused's knowledge of the nature and quality of the act or knowledge that the act was wrong.
  • Following Siemek (No. 1) and Batey, Muston J provided reasons for the findings made in the s 31 inquiry, noting that while a Fleming-style analysis of reasoning is not formally required, doing so promotes open justice and assists future cases.
  • In commending the efficient and collaborative manner in which Crown and defence counsel conducted the special hearing, Muston J described their approach as a practical model for the conduct of s 31 proceedings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 37(1), 59(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 132
- Evidence Act 1995 (NSW), s 191
- Mental Health Act 2007 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 6, 28, 31, 33, 34

Cases:
- Da-Pra v R; R v Da-Pra [2014] NSWCCA 211
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- R v Batey [2025] NSWSC 1585
- R v Iusi Afele [2014] NSWSC 366
- R v Jackson [2021] NSWSC 1404
- R v Siemek (No. 1) [2021] NSWSC 1292