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Category: Procedural rulings

Parties: Commonwealth of Australia (Applicants)
Masood Zakaria (Accused)

Representation: Counsel:
Mr T Glover SC w/ Mr D Rowe (Commonwealth)
Ms J Roy SC w/ Ms C Brain (Accused)
Solicitors:
Australian Government Solicitor (Commonwealth)
One Group Legal (Accused)

File Number(s): 2024/170703

Judgment

1. The Commonwealth of Australia, as represented by the Commissioner of the Australian Federal Police (AFP), and the Secretaries of the Department of Foreign Affairs and Trade (DFAT), the Attorney-General’s Department (AGD) and the Department of Home Affairs (DHA), claims public interest immunity (PII) and client legal privilege (CLP) in relation to information in certain documents that — save for those claims — would otherwise be required to be produced in answer to a subpoena issued to the Commissioner on 14 November 2025 (November subpoena).

2. The November subpoena was issued in connection with an application by the accused that his murder trial be permanently stayed. The general background to that application — and to the broader criminal proceedings — was canvassed in the reasons of Ierace J in R v Achrafi*; R v* Zakaria (No 2***)*** [2026] NSWSC 166 at [1]–[5].

3. It is important here to note that it is neither necessary nor appropriate for me to make any factual findings in relation to the events leading to the arrest of the accused or which otherwise touch upon the claim he has now made for a permanent stay of his trial. For present purposes, it is sufficient to note that since Ierace J delivered his judgment in Zakaria (No 2), the accused has filed a notice of motion through which he seeks an order:

“That the proceedings … brought by Indictment in this Court dated 30 April 2025 be permanently stayed.”

4. The basis of that application is articulated in the accused’s notice of motion as follows:

“A permanent stay of proceedings is necessary to prevent an abuse of process in circumstances where:

a. Australian law enforcement agencies knowingly circumvented formal extradition processes to secure the accused’s return to Australia from Türkiye by, inter alia, encouraging Turkish authorities to arrest the accused and encouraging and/or inducing the removal or deportation of the accused from Türkiye to Australia other than by way of extradition.

b. In the course of doing the above, Australian law enforcement officers engaged in specific instances of improper conduct including (but not limited to) uplifting the accused’s passport from an Australian court without a court order and providing it to a foreign government; providing intelligence of uncertain reliability to Turkish authorities; providing warrants and intelligence about the accused to Turkish authorities outside of formal processes contemplated by Australia’s extradition treaty with Türkiye or international processes undertaken by INTERPOL; and taking steps to disguise the role of Australian authorities in the accused’s return.

c. The [AFP’s] involvement in the above was part of an apparent systemic practice it has of securing returns from Türkiye otherwise by way of extradition, contrary to its own guidance and policies, and is disguising its involvement in the same;

d. The involvement of at least the AFP occurred at a time where the accused’s deportation was unlawful under Turkish law at the time it was effected;

e. The accused’s return to Australia involved his unlawful restraint and detention by agents of third-party companies (Skytraders International Pty Ltd and Hart International Ltd, acting pursuant to a process instigated and paid for by the AFP) across a period of multiple days and multiple jurisdictions.”

5. In support of the privilege claims made, the Commonwealth entities read the following open affidavits:

6. Open Affidavit of Dr Fiona Webster, Acting Deputy Secretary, DFAT, affirmed 23 July 2026;

7. Open Affidavit of Dr Christian Hirst, First Assistant Secretary, DFAT, affirmed 23 July 2026;

8. Open Affidavit of Madeleine Casey, Assistant Secretary, DHA, dated 24 July 2026;

9. Open Affidavit of Sarah Chidgey, Deputy Secretary, AGD, affirmed 24 July 2026;

10. Open Affidavit of Lesa Gale, Deputy Commissioner, AFP, sworn 24 July 2026;

11. Open Affidavit of Alison Macdonald, General Counsel — Operations, AFP, sworn 24 July 2026;

12. Open Second Affidavit of Madeleine Casey, Assistant Secretary, DHA, affirmed 7 August 2026;

13. Open Affidavit of Claire Rees, Commander, DHA, sworn 7 August 2026; and

14. Open Affidavit of Josefina Booth, Assistant Secretary, DHA, affirmed 7 August 2026.

15. As is conventional in applications of this kind, the Commonwealth also read the following confidential affidavits, the content of which was not revealed to the accused:

16. Confidential Affidavit of Madeleine Casey, Assistant Secretary, DHA, affirmed 10 August 2026;

17. Confidential Affidavit of Claire Rees, Commander, DHA, sworn 19 August 2026;

18. Confidential Affidavit of Sarah Chidgey, Deputy Secretary, AGD, affirmed 21 August 2026;

19. Confidential Affidavit of Lesa Gale, Deputy Commissioner, AFP, sworn 21 August 2026;

20. Confidential Affidavit of Dr Christian Hirst, First Assistant Secretary, DFAT, affirmed 20 August 2026; and

21. Confidential Affidavit of Dr Fiona Webster, Acting Deputy Secretary, DFAT, affirmed 14 August 2026.

22. The accused tendered a bundle of documents through which he articulated the bases for his eventual stay application.

23. In order to facilitate the determination of the PII and CLP claims, the documents over which those claims are made were made available for inspection. Both the Commonwealth and the accused agreed that it was appropriate that I inspect those documents for the purpose of determining whether any or all of the claims made should be upheld. Both parties confirmed that I would not, by reviewing the documents, be precluded from hearing the accused’s application for a permanent stay of his trial, which has been fixed for hearing before me in October of this year.

24. It is well recognised that a court may inspect the documents in question if it is necessary to do so in order to rule upon claims of the type made by the Commonwealth: Alister v R (1984) 154 CLR 404 at 416; [1984] HCA 85 and 453-454. Consistent with this practice — and in light of the position adopted by the parties in relation to this issue — I have carefully reviewed each document over which a PII or CLP claim has been made for the purpose of assessing that claim.

25. Finally, I note that the majority of the application was argued in open Court. On two occasions during the hearing, the Court was closed and submissions were made by the Commonwealth entities in the absence of the accused. Although common practice in the context of applications of this type, closed hearings of that type represent a significant departure from the well accepted – and important – principles of open justice. In this case, the submissions made by the Commonwealth entities in closed Court related only to the PII claims and addressed the content of the documents over which PII claims have been made and the content of the confidential affidavits relied on by the Commonwealth.

26. For present purposes, and having regard to the significant urgency attaching to this application, I have determined each of the PII and CLP claims in a summary way in the Schedule which is attached to these reasons. The following reasons reflect the approach I have taken when considering each of the claims made. The Schedule is to be read in conjunction with these reasons.

General principles applicable to the PII claims made by the Commonwealth

12. There was no dispute between the parties as to the principles which I must apply when determining the Commonwealth's PII claims.

13. Those claims are made under a combination of s 130 of the Evidence Act 1995 (NSW) (unless otherwise specified, all references to legislation in this judgment are references to that Act) and the common law. That is because of the terms of s 131A, which applies s 130 to a claim made by a person who is required by a “disclosure requirement” (as defined in s 131A(2)) to give information or produce documents by virtue of s 131A(1)(a).

14. As the Commissioner has provided documents in answer to a subpoena, she is subject to a disclosure requirement. As such, PII claims on behalf of the Commissioner are governed by s 130. The claims made on behalf of the Secretaries of DFAT, AGD and DHA must be determined by applying the common law, rather than the Evidence Act: Derbas v R [2012] NSWCCA 14; (2012) 221 A Crim R 13 at [8].

15. However, for all practical purposes, ss 130 and 131A restate the common law and the same broad principles must be applied when determining all of the PII claims which have been made: Ku-ring-gai Council v West (2017) 95 NSWLR 1; [2017] NSWCA 54 at [84]-[87].

16. Both s 130(1) and the common law contemplate a three-stage process: Sankey v Whitlam (1978) 142 CLR 1 at 38-39; [1978] HCA 43; Commonwealth v Northern Land Council (1993) 176 CLR 604 at 616-617; [1993] HCA 24. In broad terms:

17. The Court must first determine whether there is a public interest in the non-disclosure of the information in question;

18. If so, the Court must determine whether there is a public interest in the disclosure of the information in question; and

19. If both public interests are established, the Court must balance or weigh them against one another to determine which prevails.

20. In considering the first stage, it is not necessary for the party claiming the privilege to establish that harm to the public interest will arise from disclosure, as a matter of probability. Rather, the relevant question is whether harm to the public interest could arise as a matter of real possibility. This is because the incurring of a real risk of harm is itself injurious to the public interest: The Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83; [2008] WASCA 34 at [46]. The facts said to give rise to the risk of harm must be established on the balance of probabilities but not the prospect of the eventuation of the risk itself: R v Peters [2018] VSCA 115 at [48].

21. When considering the second stage, there can be no harm to the public interest in the administration of justice if the information over which PII is claimed is not relevant to the issues before the Court. Assessing relevance in this context requires "an analysis of the issues raised on the pleadings and, potentially, the inspection of the document itself, to determine whether it is sufficient … to justify disclosure": Kamasaee v Commonwealth (No 4*)* (2016) 52 VR 368; [2016] VSC 492 at [7]. If the material sought cannot be said to be relevant, then the PII claim necessarily succeeds: Alister v R at 412.

22. When considering whether there is a public interest in favour of disclosure, it has also been said that a fair trial does not mean a perfect trial: R v Ngo (2003) 57 NSWLR 55; [2003] NSWCCA 82 at [99]. Rather, the legal right of a party to a fair trial, truly stated, "is a right to a trial as fair as the courts can make it": Jago v District Court (1989) 168 CLR 23 at 49; [1989] HCA 46. The question is "whether there is good reason to think that the disclosure of the [i]nformation may be of substantial assistance to the accused in meeting the case against him": Derbas v R at [27] and [39]. A "mere speculative possibility of assistance is not sufficient": R v Peters at [53].

23. The third stage arises only if I am satisfied that there is both public interest against and public interest in the disclosure of any document over which a claim has been made: Alister v R at 412. If this threshold is crossed, I must consider the nature and gravity of the harm in respect of which there is a risk to the public interest arising from disclosure, and the evidentiary value and importance of the documents in the particular case. In approaching each of the PII claims, I have had regard to the considerations identified in s 130(5).

24. In balancing these conflicting public interests, the greater the public harm which may attend disclosure, the greater the importance of that disclosure to the accused must be to outweigh that harm. As was noted in Sankey v Whitlam at 43, where a:

"strong case has been made out for the production of the documents, and the court concludes that the disclosure would not really be detrimental to the public interest, an order for production will be made".

22. If the harm which may result from disclosure is sufficiently serious, it has been found that the PII claim should be upheld even if the end result may be that the party is “handicapped” in the conduct of his or her case, or even that the case is doomed to fail: Gypsy Jokers Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4 at [5] and [24]. However, I wish to make clear that, in the present case, I do not consider that any of the PII claims I have upheld will result in the accused being in any way “handicapped” in the conduct of his application for a permanent stay of his trial.

23. In assessing the PII claims made by each of the Commonwealth agencies, I have had regard not only to what appears on the face of each document but also to the capacity for seemingly benign information to take on a significantly different colour when combined with other information which might be available: Church of Scientology v Woodward (1982) 154 CLR 25 at 51. The potential significance of this “mosaic analysis” was described in Watson v AWB Ltd (No 2) [2009] FCA 1047 at [32]:

“Mosaic analysis involves combining pieces of information to enable a ‘picture’ to emerge from which inferences can be drawn by targets, or other persons of interest, about matters not otherwise known to them. Some of the pieces of information may appear to be disparate and/or benign; and specific (but important) items of information may only be known by the target(s) or other persons of interest (making it difficult to precisely assess the risk posed by mosaic analysis in any particular scenario).”

24. I have also given weight to the views expressed in the open and confidential affidavits sworn by senior and experienced officers of the Commonwealth. I accept that each is particularly well positioned to assess the risk associated with the disclosure of the information over which PII claims have been made.

Categories of PII claims made by the Commonwealth agencies

25. The PII claims fall into five broad categories. The bases of the claims made on behalf of the AFP, DFAT, DHA and AGD, while each articulated in a manner peculiar to that agency in each agency's evidence, substantially overlap. Those categories differentiate between information which could:

26. Cause prejudice to Australia’s international relations and its relationships with foreign partner agencies;

27. Disclose sensitive law enforcement and intelligence investigative methodologies;

28. Disclose details of ongoing investigations and prosecutions;

29. Reveal the identities of confidential sources; and

30. Prejudice the safety of certain Commonwealth officers.

31. Each is a conventional, and recognised, category of information, the disclosure of which has at least the potential to harm the public intertest. In so far as the claims made by the Commissioner are concerned, each is captured by s 130(4).

32. The withholding of information which, if disclosed, could impact upon Australia’s diplomatic relationship with foreign nations has been described as representing an archetypal PII claim: Sankey v Whitlam at 59. Where I note in the Schedule to these reasons that the disclosure of a document has the capacity to prejudice Australia’s international relations, I am indicating that I am satisfied that the information falls within this capacity and that if disclosed would carry that risk. In that sense, I am satisfied that there is a public interest in withholding the information.

33. In BA v Attorney-General (Cth) [2017] VSC 259; (2017) 266 A Crim R 497 at [7], it was observed that:

“International crime and its inimical consequences know no borders and international terrorism falls into the same category. Communities everywhere look to their governments to protect them from international crime, terrorism and like threats. A primary responsibility of government is to provide that protection. International mutual assistance in criminal matters responds to these fundamental concerns. The unfortunate lesson of history is that, without it, providing this protection is made very much more difficult.”

29. I accept that, to protect the community from the threats of international crime and terrorism, Australian police forces must maintain good working relationships with their overseas counterparts. I further accept that the disclosure of information which has the capacity to damage an existing relationship with one or more of those foreign partners has the capacity to compromise the Australian Government’s ability to detect and respond to international crime, terrorism and like threats and, thereby, to harm the public interest. Where I note in the Schedule to these reasons that the disclosure of a document has the capacity to prejudice Australia’s relationship with foreign partner agencies, I am referring to information of this type and indicating that I am satisfied that there is a public interest in withholding it.

30. The Commonwealth entities submitted that – in many instances – the material over which a claim of this type was asserted would, if disclosed, also have the capacity to prejudice Australia’s international relations more generally. I have considered this overarching submission when reviewing each of those documents and in the context of the evidence adduced by the Commonwealth entities. Where I have also reached that view, it is reflected in the rulings contained in the Schedule.

31. Courts have consistently recognised the protection of sensitive police methodologies, capabilities, policies and procedures to ensure the ongoing supply of relevant information as a well-established category of public interest immunity: DCL22 v Sage [2022] FCA 1310 at [32].

32. As Hunt CJ observed in Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 675:

“As another part of that broader public interest, it is essential that nothing used by police in their pursuit of criminals should be disclosed which may give any useful information concerning continuing inquiries to those who organise criminal activities: Conway v Rimmer (at 953–954); or which may impede or frustrate the police in that pursuit: ibid (at 972); or which may reveal matters to the prejudice of future police activities: Young v Quin (1985) 4 FCR 483 at 492; 59 ALR 225 at 234 ; Beneficial Finance Corporation Ltd v Cmr of Australian Federal Police (1991) 52 A Crim R 423 at 436–437 ; and on appeal (1991) 31 FCR 523 at 527 –528; 103 ALR 167 at 172; 58 A Crim R 1 at 5.”

33. The potential for the disclosure of such information to harm the public interest — should it become known to the perpetrators of crime — is obvious. Where I note in the Schedule to these reasons that the disclosure of a document has the capacity to disclose investigative methodology, I am referring to information of this type and indicating that I am satisfied that there is a public interest in withholding it.

34. Similarly, courts have long recognised the public interest in withholding information from disclosure that could prejudice ongoing or future investigations: Roberts-Smith v Fairfax Media Publications Pty Limited (No 14) [2021] FCA 552 at [17].

35. Where I note in the Schedule to these reasons that the disclosure of a document has the capacity to prejudice an ongoing investigation, I am referring to information of this type and indicating that I am satisfied that there is a public interest in withholding it.

36. In a number of instances, claims have been made over the identity of individuals named in documents. In some cases, it is said that disclosing the identity of these individuals might prejudice further collaboration between Commonwealth agencies and the foreign partner agency with which the named individual is associated. Where this is the case, I accept that the disclosure of the named individual might have the capacity to prejudice Australia’s relationship with foreign partner agencies in the sense I have discussed above and that there is a public interest in withholding the relevant name. I am also satisfied that, in some cases, the disclosure of such names might result in a risk of harm to the identified person. Where this is the case, I am similarly satisfied that there is a public interest in withholding the identity of these individuals.

37. However, in every instance in which the information sought to be withheld is the identity of an individual, I consider the balance between the public interest in the withholding of that information, and that in its disclosure, will be balanced in favour of withholding that information if each of the individual names over which a claim has been made is replaced with a cipher or unique identifier. This will enable the accused to understand the involvement that each of those individuals might have had in various communications, without knowing the actual identity of the individual in question.

38. Although it reserved its position on the possibility that “mosaic analysis” of the type I have described above might potentially enable those in possession of a wider body of information to ascertain the name of an individual whose identity has otherwise been replaced with a cipher, I note that the Commonwealth otherwise expressed a willingness to replace any name over which a PII claim has been made with a cipher in the manner I have described.

39. Finally, in some instances, it was said by one or more of the Commonwealth agencies that disclosing a piece of information — other than the name of an individual — has the capacity to prejudice the safety of Commonwealth officers. Where I am satisfied that this is a possibility, I accept that the disclosure of such information could harm the public interest. Where I note in the Schedule to these reasons that the disclosure of a document has the capacity to prejudice the safety of Commonwealth officers, I am referring to information of this type.

Further opportunity to be heard

40. As will be apparent from the Schedule, I have concluded that many of the CLP claims and a very discrete number of the PII claims have not been established. The Commonwealth submitted that I am required to provide an opportunity to the various agencies to intervene and be heard further — including through the provision of additional affidavit material — before finally ruling against those of the PII claims which I consider not to have been made out on the basis of the evidence adduced to date, pointing to Attorney-General (NSW) v Stuart at 681E in support of that proposition. Whether or not I am required to adopt this course, I consider it appropriate that I do so.

41. As such, I propose to provide the Schedule to these reasons to only the Commonwealth in the first instance. The Commonwealth will be given 3 days to consider those of its claims which I have found are not made out, and to notify my Associate and the accused of any application it might wish to make in relation to those claims (or the publication of the portions of the Schedule which relate to them). If no application is made within that period, the Schedule will promptly be published and provided to the accused’s legal representatives.

The CLP Claims

42. Section 118, as applied by s 131A, applies to the determination of the Commissioner's CLP claims. That is because the claims are made in relation to information in documents the Commissioner (rather than another person) has been subpoenaed to produce.

43. Section 118 is in the following terms:

118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of-

(a) a confidential communication made between the client and a lawyer, or

(b) a confidential communication made between 2 or more lawyers acting for the client, or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

44. As is apparent from the text of s 118, the relevant communication must be confidential. A document or communication is confidential if it was made under circumstances where the person who made it and the person to whom it was made, was under an express or implied obligation not to disclose its contents. Essentially, confidentiality will attach where the information or document is given on the understanding that it will not be later disclosed: Baker v Campbell (1983) 153 CLR 52 at 76-78; [1983] HCA 39.

45. It is well accepted that communications between a government in-house lawyer and their client may attract CLP: Waterford v Commonwealth (1987) 163 CLR 54 at 62-64; [1987] HCA 25.

46. Applying these principles, the conclusion I have reached in relation to each of the CLP claims made by the Commonwealth is set out in the Schedule.

47. Where I have concluded that a claim made over an entire document is either upheld or has not been made out by the Commonwealth, I have endeavoured to make that clear in the Schedule. In cases where I have upheld a CLP claim in part but concluded that the claim has not been established in relation to some portion of the identified text, I have set out in the Schedule that portion of the text which I consider not to be protected by CLP.

Section 125

48. It is important that I note a submission made by the accused to the effect that, when considering each of the Commonwealth’s CLP claims, I should consider whether any of those claims are defeated by s 125, which provides that:

(1) This Division does not prevent the adducing of evidence of -

(a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty;

(b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.

(2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that -

(a) the fraud, offence or act, or the abuse of power, was committed, and

(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power,

(c) the court may find that the communication was so made or the document so prepared.

(3) In this section -

power means a power conferred by or under an Australian law.

49. Having regard to the nature of the allegations being made by the accused and the fact that — self-evidently — neither he nor his legal representatives know what is contained in any of the documents or text over which CLP claims have been made, it was both reasonable and appropriate for him to have raised this issue in the way that he did. However, the issue having been raised, I find myself in a difficult position.

50. In October of this year, the accused’s application to permanently stay his trial has been listed for hearing before me. The central pillar of that application is the accused’s contention that Commonwealth officers (and, in particular, the AFP) acted improperly or unlawfully in so far as they might have been involved in the arrangements which ultimately led to the accused being returned to Australia from Türkiye. Importantly, it is said by the accused that these improper or unlawful actions reflected a systemic practice within the AFP. These same allegations underpinned the accused’s contention that s 125 might potentially operate to defeat the CLP claims made by the AFP which I have been asked to determine.

51. Accepting that s 125(2) means that I need only find that there are “reasonable grounds” for finding that any one or more of the documents were prepared for the relevant purpose, to reach even that threshold, I would need to make at least some factual findings in relation to matters which would seem to lie at the heart of the application I am listed to hear in October. There is a grave risk that, were I to do so, I might be taken to have prejudged some important issue which will arise on the accused’s application for a permanent stay.

52. Similarly, if I were to conclude that the evidence adduced on this application does not disclose even a reasonable basis for a contention that the Commonwealth has acted improperly or unlawfully, that too might reasonably give rise to a perception that I have prejudged what will be a central question posed by the hearing in October.

53. The risks I have identified are made particularly acute by the fact that the accused has — quite properly and so that I might perform the balancing exercise which arises in relation to the Commonwealth’s PII claims — placed into evidence a significant bundle of material upon which I assume he intends to rely on to establish the alleged impropriety or unlawfulness.

54. I do not consider that the difficulty I have identified in the above paragraphs can properly be overcome by avoiding language of finality when making any findings or otherwise seeking to qualify any conclusions which I might reach in relation to s 125.

55. In the above circumstances, I have concluded that I should not determine the issue raised by the accused under s 125. If the accused wishes to press this issue, it should be addressed by a different Judge of this Court. I recognise that this will give rise to some inefficiency and will likely result in a duplication of at least some portion of the costs incurred in connection with the accused’s challenge to the CLP claims. Whilst genuinely regrettable, I consider this to be unavoidable.

56. As will be apparent from the Schedule, I have determined that a substantial number of the CLP claims made by the AFP are not established for reasons wholly unrelated to s 125. I propose to determine those claims as it is possible for me to do so without creating any perception of prejudgment. By doing so, I hope that I might also narrow the scope of any hearing that might need to take place before another Judge. It may also enable the accused to make a slightly more informed decision about whether he wishes to persist in that aspect of his challenge to the AFP’s CLP claims.

Conclusion

57. I make the following orders:

58. My determination of each of the PII and CLP claims made by the Commonwealth entities is set out in the Schedule.

59. In the first instance, the Schedule will be published only to the Commonwealth entities.

60. Any application that any of the Commonwealth entities wish to make in relation to those of their claims which I have not upheld (or the publication of the Schedule to the accused) must be made to my associate by no later than 4pm on Wednesday 16 September 2026.

61. I will list the matter at 9am on Thursday 17 September 2026 for the hearing of any application made in accordance with Order 3.

62. Should no application be made in accordance with Order 3, the Schedule will be immediately published to the accused and I will vacate the listing in Order 4.

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R v Zakaria [2026] NSWSC 1102 - Schedule of Privilege Rulings (344 KB, pdf)