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Category: Principal judgment

Parties: Masood Zakaria (Applicant)
Commissioner of Australian Federal Police and Commonwealth of Australia (First Respondent)
New South Wales Police Force (Second Respondent)

Representation: Counsel:
J L Roy SC with C Brain (Applicant)
T Glover SC with D Rowe (First Respondent)
R Bhalla (Second Respondent)
K Buck (Crown in a watching brief)
Solicitors:
One Group Legal (Applicant)
Australian Government Solicitor (First Respondent) (Cth Entities)
Crown Solicitor’s Office (Second Respondent) (State Entities)

File Number(s): 2024/00170703

Publication restriction: Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2025, Masood Zakaria (the applicant) issued a number of subpoenas for production in relation to criminal proceedings on foot against him, specifically, in relation to his application for a permanent stay of the prosecution against him which is listed for hearing in October this year. Relevantly, in June 2025, the applicant issued subpoenas to the Australian Federal Police (AFP), the Australian Border Force (ABF), the Department of Home Affairs (DHA), the Commonwealth Attorney-General’s Department (AGD) and the NSW Police Force (NSWPF) (the June 2025 subpoenas). In November 2025, the applicant issued a further subpoena to the AFP (the November 2025 subpoena). The documents sought by the June and November 2025 subpoenas related broadly to the return of the applicant from Türkiye to Australia in 2023.

The applicant, and a co-accused, Mr Achrafi (a non-party to this application) were arraigned in the Supreme Court of New South Wales on charges that on or about 20 October 2021 at Guildford, they murdered Salim Hamze and Toufic Hamze and in the alternative, that they were accessories after the fact to the murders. The applicant is also awaiting trial for various offences in the District Cout including an unrelated charge of conspiracy to murder. On or about 13 December 2021, the applicant travelled overseas in breach of bail conditions of an unrelated charge. The applicant was arrested in Türkiye on 29 January 2023 and held in immigration detention by local authorities. On about 4 December 2023, the applicant was deported from Türkiye and returned to Australia.

The applicant’s submissions to be made on the stay application are under consideration, but a key aspect will concern the involvement of Australian law enforcement authorities in the applicant’s return to Australia from Türkiye and the circumstances of that return, which the applicant will contend amounted to an abuse of process, such that the subsequent trial(s), enabled by that return, would engage the Court in that abuse.

An application was made in December 2025 on behalf of five Commonwealth agencies claiming public interest immunity (PII) and/or client legal privilege (CLP) in respect of parts or all of documents that were produced in response to the June subpoenas. The primary judge ruled on those claims, upholding some but not all of them. The AFP also challenged paragraphs 3 and 4 of the November 2025 subpoena, on the basis that they lacked a legitimate forensic purpose and were oppressive. The primary judge found that there was a legitimate forensic purpose in the relevant paragraphs, however, his Honour revised the terms and reduced the scope of paragraphs 3 and 4.

The applicant seeks an extension of time and leave to appeal the decision of the primary judge under s 5F of the Criminal Appeal Act 1912 (NSW). The applicant raised two proposed grounds of appeal. First, that the primary judge erred in ordering that the Commissioner of the AFP comply with paragraphs 3 and 4 of the November 2025 subpoena on “revised” terms (Ground 1). Second, that the primary judge erred by failing to consider, in determining the PII claim, the applicant’s submission that it was necessary to have regard to less restrictive means available to protect the information while facilitating disclosure to the applicant (Ground 2).

The Court held (Ward P, Sweeney J and Emmett J) granting an extension of time and leave to appeal only on grounds 1(c) and 1(d) and otherwise dismissing the appeal**:**

As to Ground 1(a):

(1) Ground 1(a) (that s 130(2) of the Evidence Act 1995 (NSW) did not permit the making of such an order) has no utility. Section 130(2) of the Evidence Act does not confer power to reformulate the terms of a subpoena. However, the Court does have power under r 33.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) to set aside in whole or in part a subpoena (which in effect is what the revision achieved). The Court acknowledged that caution has been advocated in relation to a “blue pencil” approach to varying subpoenas but found that his Honour had power to limit the production of documents and that his mistaken reliance on s 130(2) of the Evidence Act did not invalidate his decision. Leave to appeal on this ground was refused: [45]-[47].

Licha v Joseph [2025] NSWCA 192; Allchin v Hunter Water Corporation (2025) 118 NSWLR 479; [2025] NSWCA 253 cited and applied.

As to Ground 1(b):

(2) This ground (as to procedural unfairness) was not pressed at the hearing of the leave application: [48].

As to Ground 1(c) and 1(d):

(3) These grounds contend that his Honour erred by concluding that there was not a legitimate forensic purpose for paras 3 and 4 and that his Honour failed correctly to apply principles relevant to whether there was a legitimate forensic purpose for paras 3 and 4 as revised. The Court found that the primary judge did not err in applying the relevant principles to the question whether there was a legitimate forensic purpose for paras 3 and 4 of the November 2025 subpoena in their unrefined terms, nor in reaching the conclusion that his Honour did: [62]-[69].

As to Ground 2:

(4) The Court refused leave to appeal Ground 2. The Court held that the primary judge did not err as contended. The Court held that there was no onus on the Commonwealth and State entities to negative a reason why less restrictive measures should not be adopted for disclosure: [86]-[88].

Madafferi v R [2021] VSCA 1; (2021) 287 A Crim R 380; Director of Public Prosecutions (Vic) v Debono [2012]; VSC 476; (2012) 225 A Crim R 585 cited and considered.

(5) As to the complaint about the adequacy of the primary judge’s reasons (not a separate ground of appeal), the Court found that in circumstances where no restricted access order was sought, that his Honour’s reasons would most naturally be read as taking account of the range of considerations raised before his Honour, even though not necessarily adverted to in his reasons: [89]-[91].

Fuller v Albert (No 2) [2021] NSWCA 183 cited.

(6) The applicant acknowledged that where a PII claim is made to protect the integrity of an ongoing investigation or confidential police sources, the risk of inadvertent disclosure may be unacceptable. The Court accepted that acknowledgement. As to the documents where the claim was to protect international relations, the Court reviewed the documents and concluded that they have no probative value to the applicant’s permanent stay application and, on the balancing exercise, the PII claims must be upheld. No question of restricted access would arise. Thus, were Ground 2 to be made good, no different outcome would follow.

JUDGMENT

1. THE COURT: Before the Court for hearing on 22 June 2026, was an application by Masood Zakaria (the applicant) for leave to appeal against the decision of lerace J (R v Achrafi*;* R v Zakaria (No 2) [2026] NSWSC 166) (the primary judgment), concerning applications brought concerning various subpoenas issued in relation to criminal proceedings on foot against the applicant. The application is brought pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act). The applicant requires an extension of time for the filing of his application as well as leave to appeal what is an interlocutory decision.

2. The applicant and a co-accused, Mr Adam Achrafi (who is not a party to this application), have been arraigned in the Supreme Court of New South Wales on charges that on or about 20 October 2021 at Guildford they murdered Salim Hamze and Toufic Hamze. For each of the murder counts, the Crown relies on alternative charges alleging that the accused were accessories after the fact to the murders. The applicant is also awaiting trial for various offences in the District Court including conspiracy to murder.

3. The applicant has issued a number of subpoenas in the context of his application for a permanent stay of the prosecution against him, which is listed for hearing in October this year. Relevantly, in June 2025, the applicant issued subpoenas (the June 2025 subpoenas) to the Australian Federal Police (AFP), the Australian Border Force (ABF), the Department of Home Affairs (DHA), the Commonwealth Attorney-General’s Department (AGD) and the NSW Police Force (NSWPF). In November 2025, the applicant issued a further subpoena to the AFP (the November 2025 subpoena).

4. In relation to the June subpoenas, in response to which some documents were produced, application was made on behalf of five Commonwealth agencies (the AFP, the DHA and the AGD, as well as the Australian Criminal Intelligence Commission (ACIC) and the Department of Foreign Affairs and Trade (DFAT)) claiming public interest immunity (PII) and/or client legal privilege (CLP) in respect of parts or all of the remaining documents. The NSWPF and New South Wales Crime Commission (the State agencies) made applications seeking that the Commissioner of Police and Commissioner of the AFP be excused from producing documents or parts thereof, responding to the June subpoenas on the basis of PII.

5. The AFP also challenged parts of the November 2025 subpoena (relevantly, paragraphs 3 and 4), seeking to set them aside on the basis that they lacked a legitimate forensic purpose and were oppressive.

6. The primary judge heard the applications over a four-day hearing in December 2025 and handed down the primary judgment in a redacted form on 6 March 2026. On 8 May 2026, Muston J issued to the parties a less redacted form of the primary judgment after having heard from the parties who had made the privilege claims.

7. In summary, the primary judge relevantly found that that there was a legitimate forensic purpose in paragraphs 3 and 4 of the November 2025 subpoena, limited to the lawfulness of the deportation of a number of other persons (some named but two referred to only by pseudonyms) according to the law of Türkiye and the knowledge and understanding of the Australian authorities in that regard; restricted production of documents to those falling within the terms of those paragraphs as revised by him; and then addressed the PII and CLP claims made by the various Commonwealth and State agencies, upholding some but not all of those claims.

8. Broadly, the applicant here contends that his Honour erred in ordering that the Commissioner of the AFP was only required to comply with paragraphs 3 and 4 of the November 2025 subpoena (see as set out below) in “revised” terms (which both parties appear to accept amounted, in effect, to a partial setting aside of the subpoena) and, in relation to the determination of the PII claims made by recipients of the June 2025 subpoenas, in failing to consider whether there were less restrictive means available to protect the information while facilitating disclosure to the applicant (for example, by way of suppression or non-publication orders, or access being granted to information on the basis that it would not be disclosed beyond the applicant and/or his legal representatives).

9. The hearing in this Court was conducted as a concurrent hearing of the leave application and, if leave were to be granted, the appeal itself. Ms Roy SC with Ms Brain of Counsel appeared for the applicant. Mr Glover SC, with Mr Rowe of Counsel, appeared for the Commissioner of the AFP and the Commonwealth of Australia. Mr Bhalla of Counsel appeared for the NSWPF and NSW Crime Commission (the State entities). The prosecution attended on a watching brief.

Proposed grounds of appeal

10. The proposed grounds of appeal, as pressed at the hearing of the leave application, are as follows:

Application to set aside the November subpoena

1. His Honour erred in ordering that the Commissioner of the Australian Federal Police comply with paragraphs 3 and 4 of a subpoena issued on 14 November 2025 (paras 3 and 4) on “revised” terms under s 130(2) Evidence Act 1995 (NSW), particularly as:

a. s 130(2) did not permit the making of such an order;

b. [Not pressed];

c. His Honour erred by concluding that there was not a legitimate forensic purpose for paras 3 and 4 in the terms sought by the applicant, and setting aside those paras in part through the making of the order; and

d. His Honour failed to correctly apply [sic] principles relevant to whether there was a legitimate forensic purpose for paras 3 and 4 as sought by the applicant.

Determination of public interest immunity claims

2. His Honour erred by failing to consider, in determining the public interest immunity claims made by the recipients of subpoenas issued on 12 June 2025, the applicant’s submission that it was necessary to have regard to less restrictive means available to protect the information while facilitating disclosure to the applicant.

11. The State entities are only affected by Ground 2 of the proposed grounds of appeal.

Extension of time

12. An extension of time is required. The applicant relies on an affidavit sworn by his solicitor, Mohammad Chahine, on 22 May 2026 in support of the application for an extension of time. In essence, the reason for delay relates to the fact that the form of the judgment as ultimately redacted was not received by the applicant’s legal representatives until 8 May 2026. The respondents do not oppose an extension of time being granted to the applicant in respect of his application. This will be granted.

Leave to appeal

13. The applicant submits that it is appropriate that leave be granted given the relevance of the material sought by the respective subpoenas to his stay application, the lack of utility in any deferral of consideration of these issues until after his trial and the issues of principle raised by the application.

14. However, in the course of oral argument on the application, the applicant submitted that, on any view of the outcome of his application, he should not be left in a worse position in terms of the category of documents in respect of which there has been a finding of legitimate forensic purpose (this being in the context of an apparent concern that this Court might revisit the question as to whether the subpoena was oppressive) and indicated that, were there to be any intention by this Court to make positive findings that there was a lack of forensic purpose for the revised categories, the applicant might wish to withdraw his proposed appeal. It is clear that the applicant wishes to retain the benefit of at least the more limited production ordered by the primary judge – see 22/06/26; T 47.40-46. The Commonwealth entities, on the other hand, have argued in their written submissions that the preferable course (on the assumption that, as they concede, Ground 1(a) is made out), if Grounds 1(c) and (d) were determined in their favour, would be to set aside the contested paragraphs of the November 2025 subpoena in their entirety.

15. The Commonwealth entities do not oppose leave to appeal being granted. The Commonwealth entities say that the question whether s 130(2) of the Evidence Act 1995 (NSW) (Evidence Act) is a source of power to permit the rewriting of a subpoena is plainly a matter of principle. In circumstances where the Commonwealth entities do not oppose leave, the State entities (who as noted above are only affected by Ground 2) indicated that they did not wish to be heard on the question of leave.

16. We would grant leave to appeal but only in relation to Grounds 1(c) and (d) of the proposed grounds of appeal. For the reasons explained below, Ground 1(a) has no utility and Ground 2, even if made good, would not lead to any different outcome. For the following reasons we dismiss the appeal.

Background

17. Briefly, by way of background, the applicant travelled overseas on or about 13 December 2021 in breach of bail conditions on an unrelated charge of perverting the course of justice (see primary judgment at [2]). An arrest warrant was subsequently issued on six fresh charges, including a charge of conspiracy to murder unrelated to the present proceeding.

18. The applicant was arrested in Türkiye on 29 January 2023 and held in immigration detention by local authorities. On about 4 December 2023, the applicant was deported from Türkiye and returned to Australia. On 8 May 2024, the applicant was charged with the present offences (primary judgment at [3]).

19. The applicant says that his deportation from Türkiye followed express requests for his removal by Australian law enforcement authorities and was with the assistance of Australian authorities. In particular, the applicant says that it is not contentious that the AFP and NSWPF had some involvement in his return to Australia, though the extent of their involvement may be in issue.

20. The applicant emphasises that he was not extradited from Türkiye. The Commonwealth entities submit that, without more, this is wholly unremarkable; that there is no abuse of process merely because a person is deported to Australia from a foreign jurisdiction and then arrested and prosecuted (citing Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 (Moti) at [64] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; at [84] per Heydon J); and that there is neither impropriety nor subversion of Australia’s treaty obligations merely because an accused returns to Australia by way of deportation rather than extradition (citing Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719). Those issues will no doubt arise for consideration on the applicant’s application for a permanent stay of the proceedings – see below.

21. The applicant was returned to Australia on an aircraft operated by a private company (SkyTraders Pty Ltd) with security services provided by another private company (Hart International Pty Ltd). The applicant says that he was detained for over five days on a private aircraft, eventually being forcibly returned to Australia, and that it does not appear that he was accompanied by any law enforcement officials from either Australia or Türkiye. The applicant says that the AFP paid for the chartered aircraft and private security pursuant to a pre-existing understanding or arrangement with Turkish authorities.

Subpoenas

22. The submissions to be made on the stay application are said to remain under consideration. However, the applicant says that a key aspect will concern the involvement of Australian law enforcement authorities in the applicant’s return to Australia from Türkiye and the circumstances of that return, which the applicant will contend amounted to an abuse of process, such that the subsequent trial(s), enabled by that return, would engage the Court in that abuse, were they to proceed. Pressed in oral argument as to the basis of the stay application (which is relevant to an assessment of legitimate forensic purpose for the November 2025 subpoena, as raised on the present application), the applicant (see 22/06/26; AT 5) points to the issues raised in the applicant’s submissions at first instance, extracted by the primary judge at [32]:

32. In his written submissions, Zakaria identified the forensic purpose of the documents sought, in order to support the stay application, in these terms:

a. the subversion of the available extradition process by Australian authorities (State and Commonwealth) from the outset, by encouraging Turkish authorities to arrest the Accused, and specifically requesting, encouraging and/or inducing the removal or deportation of the Accused from Türkiye, and to Australia;

b. the propriety of specific steps taken by Commonwealth and State authorities in the course of facilitating the Accused’s arrest and removal or deportation, including:

i. making various (largely redacted) ‘Police 2 Police’ requests in connection with his arrest and deportation;

ii. removing his passport from court-ordered custody and providing it to a foreign government for use in his deportation;

iii. providing intelligence and warrants for arrest to Turkish authorities outside of the use of an Interpol Blue or Red Notice;

iv. providing intelligence of uncertain reliability to Turkish authorities (for example, asserting his Afghani passport was fraudulently obtained, thereby removing Afghanistan as a possible deportation country, and other intelligence which has been redacted);

v. engaging directly with the PMM, rather than police to police liaison;

vi. other forms of ‘value adding’ to Turkish authorities to secure the Accused’s removal or deportation to Australia (including potentially in the form of benefits or training);

vii. facilitating the private plane charter and security hire to move the Accused forcibly from Türkiye to Australia; and

viii. taking steps to deliberately disguise the role of Australian authorities in the Accused’s return so as to avoid disclosure in the course of his criminal proceeding and thereby risk future prosecutions of him;

c. the apparent systemic practice of indicating to Turkish authorities that if ‘they’ charter a private flight to return the Accused (or other persons of interest), the AFP will reimburse the expense, in order to avoid being seen to be involved in wanted persons’ forced return to Australia (and the extent to which AFP and/or Border Force were involved in making, directly or indirectly, arrangements with Hart International and Skytraders for the Accused’s custody and return);

d. the apparent unlawfulness of the Accused’s deportation under Turkish law at the time it was effected;

e. whether there was any lawful basis for the Accused’s restraint and detention following his release from PMM custody, while on the Skytraders aircraft in Türkiye, the United Arab Emirates, Sri Lanka, Indonesia and Darwin before his arrest by AFP officers;

f. the extent of individual officers’ knowledge and culpability, and Australian (Commonwealth and State) authorities’ knowledge and/or complicity in respect of each of a. to e. above; and

g. the consequences of any findings with respect to a. to f. above and particularly whether the trial of the Accused in these circumstances will engage this Court in an abuse of process.

23. The applicant says that, of particular relevance, is what Australian authorities knew, or were on notice of, as to the lawfulness of the course they ultimately adopted, both under Australian law generally (insofar as the applicant says they were subverting extradition treaties) and as to the specific method of return (including the lawfulness of removal under Turkish law, as well as the hiring of a charter airplane and private security to take custody of the applicant in Türkiye, without evident lawful authority from either Türkiye or Australia). The nub of the applicant’s complaint as to the revision of paragraphs 3 and 4 of the November 2025 subpoena is that it is confined to lawfulness according to the law of Türkiye, not at large (see below).

June 2025 subpoenas

24. The June 2025 subpoenas sought documents from various Commonwealth and State agencies seeking documents relating, broadly, to the return of the applicant from Türkiye to Australia. The documents sought by those subpoenas were as follows (set out at [7] of the primary judgment):

2. Any and all records relating to the international travel, detention, deportation, and/or extradition of Mr. Masood Zakaria (Zakaria) (D.O.B XX/XX/1995) including but not limited to documents, correspondence, emails, internal memoranda, diplomatic cables, operational plans, letters, notebook entries or electronic communications.

3. All records concerning any extradition request made or contemplated by the Australian Government (via any agency) to the Republic of Türkiye relating to Zakaria, including but not limited to:

a. Extradition applications, ministerial submissions, intergovernmental correspondence, Interpol notices, and rejection notices or diplomatic responses from Turkish authorities; and

b. Any correspondence referencing Zakaria’s entry into Türkiye on an Afghan passport and how that affected extradition proceedings.

4. All documents referring to Zakaria ‘s dual citizenship status, including but not limited to:

a. Any internal agency communications referencing the use or concealment of his Australian nationality; and

b. Notes relating to how or whether his Australian citizenship was raised during extradition or consular engagement.

5. All records relating to Zakaria’s deportation by Turkish authorities, including but not limited to:

a. Date, mode, and recipient country of deportation;

b. Any Australian objections, formal diplomatic protests, or operational discussions in response; and

c. Engagement by Australian Federal Police (AFP), New South Wales Police, Australian Border Force (ABF) or Home Affairs on detention, border entry alerts, refusals, or custody preparation.

6. All inter-agency operational materials or briefings relating to the anticipated receipt, transport, and custody of Zakaria if extradition were granted, including but not limited [to]:

a. Attorney Generals Department, AFP, NSW Police, or ABF handover planning;

b. Prisoner transfer procedures, airport coordination, or anticipated custodial risk assessments;

c. Border movement alerts or watchlist entries involving ABF or Home Affairs; and

d. Operational orders, situation reports or any other electronic record of the receipt of Zakaria in Australia following detention or deportation.

7. Any communications between Australian Government agencies and international partners (including Interpol, Turkish authorities, or foreign embassies) regarding Zakaria’s location, arrest, legal status, or removal from Turkish jurisdiction.

November 2025 subpoena

25. The November 2025 subpoena issued to the AFP sought training records, policy documents, records relating to other deportations and records of benefits conferred by Australian authorities to Turkish authorities. Relevantly, for the purpose of this application, in paragraphs 3 and 4 the following documents were sought:

B. Comparative Deportation Cases

3. Records held by the AFP which document advice, guidance or commentary received internally or from other Commonwealth agencies between 2021-2024 concerning:

a. the lawfulness of potential or actual method(s) of deportation, removal or return from Turkiye to Australia of [AB], Guy Habkouk, Tony Haddad and [XY]; or

b. risks to the successful prosecution of the individuals named in a. associated with the potential or actual methods of their return to Australia.

4. Records documenting any Sensitive Investigations Oversight Board (SlOB) decisions disclosing the means by which [AB], Guy Habkouk, Tony Haddad and [XY] would be or had been returned to Australia from Türkiye.

26. On 2 December 2025, the AFP Commissioner filed a notice of motion applying to have various parts of the November subpoena set aside (paragraphs 3, 4 and, in respect of which there is here no appeal, 6-9). The AFP Commissioner contended that paragraphs 3 and 4 of the subpoena lacked a legitimate forensic purpose, and that paragraph 3 was oppressive.

27. The primary judge noted (at [39]) that, shortly before the hearing, the applicant agreed to amend the terms of Part B of the subpoena so that the time range in paragraph 3 was narrowed to the period from 1 January 2022 to 1 January 2024, to correlate more closely with the dates that each of the named persons was returned to Australia.

28. As revised by the primary judge (at [50] of the primary judgment), paragraphs 3 and 4 of the November 2025 subpoena were in effect merged (and reduced in scope) to read:

B. Comparative Deportation Cases

3. Records held by the AFP which document advice, guidance, commentary or opinions received internally or from other Commonwealth agencies, including records documenting any Sensitive Investigations Oversight Board (SIOB) decisions, between 1 January 2022 and 1 January 2024, concerning the lawfulness (or otherwise) according to the law of Türkiye of the removal from Türkiye to Australia of AB, Guy Habkouk, Tony Haddad and/or XY.

29. The applicant points out that the effect of the revision was that the applicant “lost” documents relating to the lawfulness (other than under the laws of Türkiye) and awareness thereof, of potential or actual methods of deportation, removal or return from Türkiye and the SIOB decisions which disclose the means by which the other named persons would be or had been returned (see 22/06/26; AT 3.7).

30. The applicant submits, as he did before the primary judge, that the potential relevance of the material sought to be provided is to be assessed through the lens of the very serious criminal charges that he is facing and the relief being sought by way of the stay application.

31. The applicant’s contention, as appears to be acknowledged by the primary judge at [50], is that the issues to be raised in the permanent stay application go beyond the issues in the decision of Moti, where a permanent stay was granted in a case where Australian officials had facilitated the deportation of an accused person knowing that the deportation was unlawful under the laws of the foreign country. The applicant here says that this is only one of the ways in which he may ultimately frame his permanent stay application; and that it is neither dependent on, nor limited to, the lawfulness of his removal under Turkish law or the Australian authorities’ knowledge in that respect.

Ground 1

Legitimate forensic purpose for paras 3 and 4 of November 2025 subpoena

32. The applicant says that the documents produced by the AFP in response to the June subpoenas (over which no challenge had been made), establish that the AFP was involved in the return of four persons (“AB”, Guy Habkouk, Tony Haddad and “XY”) to Australia from Türkiye in the 16-month period leading up to the applicant’s return, each of whom was suspected of serious criminal offences.

33. The applicant argued before the primary judge (as recorded by his Honour at [43]), and again argues on this application, that there was a commonality of legal issues and strategic considerations (and commonality of the actual or contemplated circumstances of return) between the circumstances of his return and the return of the other “deportees”; and that the communications between Australian and Turkish authorities referred to an established pathway for returns and that there was concern that, if the AFP’s involvement in the applicant’s return became known, it would threaten not only his prosecution, but also the prosecution of AB and XY in respect of whom there are ongoing criminal proceedings.

34. Reference is made in that regard, by way of example, to: an email sent on 20 October 2022 between NSW Police and AFP Officers, in which there was reference to various options and the comment with respect to the applicant’s return to Australia that it “may go down the same path as HADDAD” (see Ex A, 85); communications on 16 November 2022 between APP officers referring to difficulties affecting the Haddad deportation (see Ex A, 607); and handwritten notes made on 7 November 2023 by AFP Assistant Commissioner Kirsty Schofield, which included reference to various persons (Habouk, Haddad and [AB]) and to a private contractor having a standing arrangement with ABF that “did [AB]/Haddad” and had private security; an exchange between AFP officers on 8 November 2023 where reference was made to the “Haddad option” in the context of the applicant (see Ex A, 497); correspondence between the AFP and AGD on 22 November 2023 where the cases of AB, XY, Haddad and Habkouk were referred to as examples of “escorted” deportations from Türkiye to Australia, in contrast to other “unescorted” deportations; and a brief to the SIOB within the AFP concerning the applicant’s return to Australia in late 2023 which referred to risks to the applicant’s prosecution and [XY] and [AB] prosecutions of disclosure of the AFP SIOB decision.

35. The applicant submits that there are substantive reasons to consider that the method of return of each of those other persons and what, if anything, the AFP was advised as to, or was otherwise aware of, the lawfulness of those methods of return (including how the methods of return might have imperilled their prosecutions if made public), are likely to be probative of the issues in his permanent stay application.

Primary judgment

36. With respect to the legitimate forensic purpose of paragraphs 3 and 4 of the November 2025 subpoena, his Honour accepted (at [46]) that some of the references to other deportees suggested that, by the time of the applicant’s deportation, “there were elements of an established procedure or pathway, although its nature and extent is not spelt out”. His Honour gave as an example, a text message sent shortly after the arrest of Zakaria and Habkouk, over which a claim of privilege was not made, in which there was a reference to what had been said for XY and Haddad; and seeking “comfort on the cost, in particular” (see at [46]).

37. The primary judge, expressly applying the test in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council (2021) 118 NSWLR 336; [2021] NSWCA 145 (Blacktown City Council) at [65] (per Bell P, as his Honour then was, Brereton and McCallum JJA agreeing), was satisfied that there was a reasonable basis beyond speculation that the procedure deployed by Turkish and Australian authorities with the deportations of the other deportees had a legitimate forensic purpose – namely, the expressions by Turkish authorities as to the compliance of those deportations with the law of Türkiye and the consideration by Australian authorities of that issue ([48]). The primary judge was also satisfied that there was a legitimate forensic purpose in seeking records of communications between the respective authorities concerning the legality of the deportation of those other deportees and records that are relevant to the awareness of Australian authorities as to the lawfulness of those deportations according to Turkish law ([49]).

38. His Honour concluded (at [50]) that the legitimate forensic purpose in obtaining records concerning the transfers of the other deportees was only as to the lawfulness of their deportations according to the law of Türkiye and the knowledge and understanding of the Australian authorities in that regard. His Honour reformulated the terms of Part B of the November 2025 accordingly.

39. The primary judge relevantly ordered that:

Pursuant to the notice of motion filed by the Commissioner of the Australian Federal Police (“the Commissioner”) on 2 December 2025:

The Commissioner is to comply with Part B (pars [3] and [4]), as revised.

…

40. As adverted to above, the applicant says that the effect of the reformulation was to confine the material to be produced to material that related to a very specific issue (namely, the lawfulness of the returns pursuant to the laws of Türkiye and the Australian authorities’ awareness of the same) and says that, had this proposed reformulation been raised with the parties during the hearing or while judgment was reserved, the applicant would have opposed any such reformulation on the basis that the legitimate forensic purpose clearly went beyond that narrow focus. The applicant does not, however, press a ground of appeal based on any lack of procedural fairness in the revision of the terms of the subpoena (as was raised by the abandoned sub-ground 1(b)).

41. We note that the applicant in his submissions in this Court contends that the primary judge in effect rejected the Commissioner’s argument that paragraph 3 of the subpoena was oppressive (as opposed to a finding that the searches that had been attempted by the AFP had been oppressive) (see 22/06/26; AT 31.32ff). The Commonwealth entities submit that the relevant finding was in effect that paragraph 3 would be oppressive in its original form but not as reformulated (referring to his Honours reasons at [63]-[64]).

42. As to that debate, what the primary judge said (at [63]) was that the search that had been attempted thus far by the AFP was unachievable, in view of the breadth of search criteria and system crashes “and therefore is oppressive”. His Honour then found (at [64]) that the terms of paragraph 3, as modified, were not oppressive. We consider that, read in context, his Honour considered that paragraph 3 as unrefined was oppressive but we note that there is no ground of appeal raising any issue as to the finding or otherwise of oppression in relation to the unrevised subpoena and it is not necessary here to say anything further on that issue.

Determination

43. At the outset, we note that the applicant submits that a “correctness” standard applies to the appeal and that it is not necessary for him to demonstrate error in the House v The King (1936) 55 CLR 499; [1936] HCA 40 (House v The King) sense, referring to Sayer-Jones v The King [2024] NSWCCA 73 (Sayer-Jones). In Sayer-Jones, Leeming JA (without deciding the issue) considered that the High Court’s decision in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 may support the view that a House v The King error is not required in the context of a decision made on an application to set aside a subpoena (cf the basis on with N Adams J, as her Honour then was, proceeded); and to the subsequent High Court decision in *Moore (*a p**seudonym) v The King (2024) 282 CLR 460; [2024] HCA 30 (Moore) where the High Court held that the correctness standard applied to a challenge to a decision to exclude evidence under s 137 of the U**niform E**vidence L**aw.

44. The applicant submits that a decision as to whether a party issuing a subpoena has established a legitimate forensic purpose involves a “binary” choice, since the subpoena either will or will not have a legitimate forensic purpose. That said, the applicant acknowledges that the proposed grounds of appeal raise both correctness (Ground 1(c)) and House v The King errors. As to these sub-grounds, the AFP does not dispute that a “correctness” standard applies to the conduct of the appeal.

Ground 1(a) – Reliance on s 130(2) Evidence Act

45. Ground 1(a) can be disposed of briefly. The applicant contends that s 130(2) of the Evidence Act, on which the primary judge relied when determining to reformulate the terms of paragraphs 3 and 4 of the November 2025 subpoena, cannot be read as authorising a court to vary the terms of a subpoena in the context of an application to set it aside for want of legitimate forensic purpose; and that his Honour erred in relying on that provision when so doing. The Commonwealth entities agree that s 130(2) did not authorise the revision of the November 2025 subpoena and hence they accept that Ground 1(a) is made good.

46. We agree that s 130(2) of the Evidence Act does not confer power to reformulate the terms of a subpoena. However, the court does have power under r 33.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to set aside a subpoena in whole or in part or to “grant other relief in respect of it” and also has inherent jurisdiction, which would permit a subpoena to be set aside other than to the extent that might be specified by the court. While there have been a number of cases in which caution in relation to a “blue pencil” approach has rightly been advocated, there was in our view power to do as his Honour did. Once that is accepted, then the fact that his Honour mistakenly relied on s 130(2) of the Evidence Act as the source of power, does not invalidate the decision so to limit the production of documents in answer to the subpoena (see Licha v Joseph [2025] NSWCA 192 at [61] (per Griffiths AJA, Kirk and Ball JJA agreeing) applied in Allchin v Hunter Water Corporation (2025) 118 NSWLR 479; [2025] NSWCA 253), as the parties here appear to accept. The fact that r 33.4(1) of the UPCR was not the source of power that his Honour identified is not to the point.

47. In oral argument, the applicant made clear that he does not contend that there was no power for the primary judge to do as he did (see 22/06/26; AT 4.7-14) (no doubt, as adverted to above, conscious of the difficulty that, if there was no power at all, or the Court acted without jurisdiction, to make the order in the terms that the primary judge did, then the subpoena should simply have been set aside, whereas the applicant seeks to retain the benefit of at least the limited production his Honour ordered).

48. Ground 1(a) thus has no utility and leave to raise Ground 1(a) is refused. Ground 1(b), which the applicant addressed in written submissions as being interrelated to Ground 1(a), was not pressed.

Ground 1(c) – alleged error in concluding that there was not a legitimate forensic purpose for paragraphs 3 and 4 as framed

Ground 1(d) – alleged misapplication of principle

49. These proposed grounds were dealt with together by the applicant in his submissions.

50. The applicant submits that the primary judge failed to bring the applicant’s submissions to bear in considering the question of legitimate forensic purpose. In particular, the applicant complains that his Honour failed to ask whether the documents sought were of “apparent relevance” to the issues identified by him; saying that those issues went beyond an awareness of unlawfulness in Türkiye and included: gaining an understanding of the circumstances of the applicant’s return to Australia more generally (by reference to what had occurred in the other cases expressly invoked by authorities in considering options to return him), appreciating how and why his return could give rise to “risks” for those prosecuting him and, some of the others (said not to be logically confined to the question of lawfulness under Turkish law), and understanding any awareness that Australian authorities had about the lawfulness or propriety of the returns (each case informing the others) not only under Turkish law but per s**e or at large*.* The applicant argues that evidence of a systematic attempt to avoid extradition requirements would also be highly relevant.

51. The applicant says that it was common ground between the parties that the Court should ask whether the documents sought were “apparently relevant” to an identified issue, adopting the language of Bell P (as his Honour then was) in Blacktown City Council at [65].

52. The applicant says that there was a further unresolved issue, namely, whether there should be any different approach to establishing a legitimate forensic purpose as between criminal and civil proceedings. Before the primary judge, the applicant submitted that there was no justification to take any more restrictive approach in criminal proceedings; and that, if anything, the approach should be more liberal, consistent with the approach taken in resolving PII claims. That issue does not in our opinion need here to be resolved.

53. The applicant complains that, instead of making a forward-looking assessment of “apparent relevance” by reference to the anticipated issues in the stay application, his Honour appears to have reasoned backwards from an understanding of what would be necessary for a meritorious stay application (by reference only to the precise facts of Moti) and confined the subpoena accordingly without sufficient explanation as to why he reached that view. The applicant further contends that his Honour failed to have regard to the nature of the proceedings and to apply this as the “lens” through which “apparent relevance” was to be assessed.

54. In these respects, the applicant submits that (to the extent that it is necessary to establish House v The King error) the decision involved a failure properly to apply the relevant principles. The applicant submits that the “apparent relevance” of paragraphs 3 and 4 of the November subpoena was correctly identified at [46] of the primary judgment, namely that “by the time of Zakaria’s deportation, there were elements of an established procedure or pathway, although its nature and extent is not spelt out”. The applicant contends that paragraphs 3 and 4 of the November 2025 subpoena were sufficiently targeted to establish material believed to exist to explore that “established procedure or pathway” as part of the stay application, and that the appropriate order was for the Commissioner’s application to set aside those paragraphs to be dismissed.

55. The AFP argues that the crux of each of these sub-grounds is an assertion that the primary judge’s reasoning miscarried because his Honour assessed the relevance of the contested paragraphs of the subpoena by reference to the precise facts in Moti, notwithstanding that his Honour had also accepted that the applicant had identified a basis for a stay application different to, and broader than that, in Moti. The AFP says that this is a misunderstanding of what was argued before the primary judge and how his Honour reasoned.

56. In that regard, the AFP notes that it had submitted before the primary judge, that it could be accepted that, in light of Moti at [63]-[65], there would be a legitimate forensic purpose in information suggesting the deportation of the applicant had been unlawful under Turkish law but that the notional basis for the applicant’s foreshadowed stay application had expanded since the applicant’s trial was adjourned in order to allow him to bring that application (referring to T 172.04-25; R v Achrafi*;* Zakaria (No 1) [2025] NSWSC 1061 at [9]) and that the applicant now put his purported forensic interest at “a higher level of generality ... and by reference to a wide variety of issues that may or may not be relevant to the stay application”. The AFP submitted that the relevance of many of those issues was speculative or inadequately explained ([6]).

57. The AFP submits that the primary judge was plainly aware of the way in which the applicant put his case on legitimate forensic purpose (referring to [32] of the primary judgment] and the way in which the AFP put its submissions (see [44] of the primary judgment).

58. The AFP argues that most of the matters raised by the applicant as being potentially relevant to his stay application (set out at [32]), related solely to the circumstances of his own deportation, other than (see [32](c)) to the extent that it was said that there was a “systemic practice” of reimbursing the Turkish authorities for the costs of private flights to Australia.

59. The AFP notes that, in written submissions, the applicant articulated the legitimate forensic purpose for the contested paragraphs as being both that they might shed light on the AFP’s planning and approach to the applicant’s deportation and that they are “apparently relevant to what was known by the AFP as to the lawfulness or propriety of its conduct in facilitating the accused’s return” because advice received about those other individuals “would logically affect their knowledge of the same in the accused’s case”. In that context, the AFP attaches significance to the second sentence of [50] of the primary judgment. The AFP argues that the primary judge accepted that a meritorious stay application could be brought on a basis other than that in Moti but also accepted the submission of the AFP that the particular purported forensic interests identified by the applicant did not provide a legitimate basis for the contested paragraphs in the broad terms in which they were drafted. The AFP argues that such a conclusion is not surprising. The AFP submits that, while the applicant had articulated a range of “issues” that went beyond Moti, the applicant puts these in sweeping terms, most of which related almost exclusively to the circumstances of his own deportation.

60. The AFP argues that the applicant’s case at its highest, could not justify seeking a broad range of documents relating to other individuals in the hope that these documents might shed further light on any or all of the impugned circumstances of the applicant’s deportation.

61. The AFP says that the primary judge evidently concluded that there was no tangible basis for thinking that the broad range of information relating to other individuals, sought by the applicant under subpoena would materially assist the applicant to understand the circumstances of his own deportation.

Determination

62. We do not accept that the primary judge erred in applying the relevant principles to the question whether there was a legitimate forensic purpose for paragraphs 3 and 4 of the November 2025 subpoena in their unrefined terms; nor in reaching the conclusion that he did. It is not necessary, for that conclusion, to enter into the debate as to whether there is a less restrictive test of legitimate forensic purposes than that applied by the primary judge.

63. Understood in the context of the applicant’s submissions, the key issue identified for the purpose of the permanent stay proceedings related to the circumstances of the applicant’s own deportation – in particular, the Australian authorities’ involvement in that deportation – and the awareness (or otherwise) by Australian authorities of the lawfulness of that method of the applicant’s deportation or return to Australia. True it is, the question of lawfulness was not limited by the applicant to lawfulness under Turkish law but the focus of the expanded enquiry into the lawfulness of the applicant’s deportation is (as we explain below) on the circumstances of his deportation.

64. The means by which the applicant was returned to Australia are known. Whether those means were lawful (and the implications if they were not) will be matters for consideration in the permanent stay application, but it is difficult to see that the circumstances of other deportations will usefully shed light on this. Concern expressed in oral submissions as to what was meant in communications by the “Haddad” option is not necessary to understand what “option” or course was in fact followed in the applicant’s case.

65. As noted above, the nub of the applicant’s complaint is that the revised terms of paragraph 3 of the November 2025 subpoena do not encompass reference to the lawfulness (or otherwise) “at large” of the applicant’s removal (i.e., not limited to its lawfulness or otherwise under Turkish law) (see 22/06/26; AT 11.5). The applicant submits that awareness of the lawfulness or otherwise of all the stages in his deportation process (taken individually or collectively), cannot be confined to lawfulness just according to Turkish law (see 22/06/26; AT 11.12).

66. However, to the extent that what is sought (as relevant in that it may shed light on that knowledge) relates to the deportation of the other named persons, we are not persuaded that there is a reasonable basis beyond speculation to suggest that documentation in relation to the manner of return of other deportees will go to the awareness of Australian authorities as to the lawfulness or otherwise “at large” of the various stages in or aspects of the applicant’s deportation as itemised in the submissions recorded at [32] of the primary judgment.

67. The primary judge properly took into account the respective submissions; did not misunderstand the applicant’s stay application as one that would be based solely on Moti; and did not, in our view, engage in backward-looking reasoning.

68. Paragraphs 3 and 4 of the subpoena, as revised, encompass documents that may shed light on the means of deportation of the other named deportees against which the actual pathway for the applicant’s deportation may be tested as, relevantly, can the awareness of Australian authorities be tested as to the lawfulness of that pathway according to Turkish law. It is no more than speculation that there may be documents within the broader category of documents sought by the unrefined contested paragraphs of the subpoena that would not otherwise be caught by the subpoena as revised.

69. Thus, we would grant leave but dismiss the appeal on grounds 1(c) and (d).

Ground 2 – the PII claims

70. Ground 2 relates to the PII claims. The applicant contends that the primary judge erred by failing to consider his submission that it was necessary to have regard to whether there were less restrictive means available to protect the information while facilitating disclosure to the applicant.

71. In that regard, the applicant cavils with what was said at [37] of the primary judgment, namely that “no party has sought an order for a ‘restricted access’ procedure to apply to material the subject of a PII claim that is found to be highly sensitive.” The applicant points to his submissions in writing before the primary judge where it was submitted (at [108]) that:

… there may be substantial public interest in the disclosure of the redacted material in circumstances where there are serious questions about the methods used by the AFP, NSWPF (and potentially other Commonwealth agencies) to facilitate the Accused’s return to Australia. To the extent that redacted material goes to the issues identified at paragraphs 77-86 above, disclosure would be required out of fairness to the Accused (and to ensure that the Court can be fully informed when asked to determine whether the prosecution amounts to an abuse of process). Further, to the extent there were legitimate, residual concerns, a suppression or restricted access regime must be ruled out before a claim can succeed.

72. The applicant contends that his Honour’s statement at [37] of the primary judgment is difficult to reconcile with its submissions and suggests that his Honour may have misapprehended the applicant’s position, or at least overlooked it.

73. To understand this ground of appeal it is necessary to set out some of the detail of the submissions that were made when the matter was before the primary judge and an issue raised by the primary judge at a mention of the proceedings after judgment had been reserved.

Submissions before the primary judge

74. In the applicant’s written submissions dated 15 December 2025, the applicant drew attention to the requirement for the Court to consider the means available to limit the publication of information under s 130(5)(d) of the Evidence Act. The applicant submitted that “[i]n order to discharge its onus of proving that the material should not be disclosed, the entity claiming PII must establish that a robust suppression, non-publication order or limited access regime would not sufficiently protect the relevant matter of state and that the risk arising from potential unauthorised disclosure remains so great as to outweigh the public interest in full and fair prosecutorial disclosure” (emphasis in original).

75. In relation to the PII claims made by the AFP, DHA and the ACIC in relation to investigative and intelligence methodologies, the applicant submitted that “to the extent there were legitimate, residual concerns [about disclosure], a suppression or restricted access regime must be ruled out before a claim can succeed”.

76. The applicant further submitted in relation to the PII claims over information, that the Commissioner, DFAT and the AGD contended would, if disclosed, impact Australia’s relationship(s) with foreign countries or their agencies, that this category of material “would appear particularly amenable to adequate protection by suppression orders or even restricted access regimes, and that would not require absolutely restricting any disclosure” (emphasis in original). A similar submission was made by the applicant in respect of the PII claims, of the same kind made by DFAT and the AGD.

77. Reliance was placed by the applicant on R v Peters [2018] VSCA 115 (Peters) where the Victorian Court of Appeal observed that the evaluative exercise required by s 130 of the Evidence Act “may not be binary in the sense that the information is either disclosed to, or withheld from, the defence for the purposes of the trial. It may require consideration of procedural alternatives to the provision of the information in its current form or at all”. The applicant also emphasised the nature of the proceedings (referring in submissions to R v Alqudsi (No 2) [2022] NSWSC 609 at [73] per Rothman J, where his Honour said, in the context of criminal prosecutions, that if there be a public interest in keeping matters secret, “processes must be available to ensure, within reason, that the accused is afforded an appropriate opportunity to understand all that could be put and to rely on it”).

78. The Commonwealth entities responded, in written submissions dated 15 December 2025, disputing that there was an onus of the kind contended for by the applicant.

79. The Commonwealth entities noted that the applicant was a known member of the Alameddine crime family who had absconded from Australia in breach of bail. The Commonwealth entities submitted that it was “self-evident, and implicit within the Commonwealth’s evidence, that the disclosure of sensitive government information to such a person would not be an effective means of maintaining the confidentiality of the information” ([17]-[18]). The Commonwealth entities put on evidence, some of it confidential, as to the risks of the disclosure of sensitive information to the applicant and/or his legal representatives ([69]; [64], [69]). In relation to the suggestion that information could be disclosed only to the applicant’s lawyers, the Commonwealth entities submitted that such an approach was no substitute for total refusal of disclosure, noting the risk of inadvertent disclosure ([15]-[16]).

80. The applicant maintains that his submission was that the primary judge was positively required to consider the issue whether measures could be put in place to facilitate access while protecting against residual public interest risks, particularly for documents where the PII claims related to matters of international relations (the applicant noting that the majority of the documents produced by the AFP were in this category).

Hearing of the PII claims

81. The Commonwealth entities point out that at the hearing of the PII claims on 17 December 2025, the applicant’s argument that there was an “onus” on the Commonwealth entities as was framed in terms of a “persuasive burden” (T 66.6-11; submissions at [54]), that being said to be necessarily from a functional perspective as the applicant did not know what the information was. The Commonwealth entities emphasise that senior counsel for the applicant made clear that she did not “want to volunteer” a restricted access scheme (T 66.1; T66 13-15).

82. Counsel for the NSW Police Commissioner responded to the applicant’s suggestion that the Court might consider disclosing information the subject of PII claims to his lawyers (18/12/25; T 130-131), referring to AIX**20 v Director-General of Security (No 2) [2024] FCA 1130 (AIX**20 (first instance)), where (at [40]-[45]), Dowling J explained why those orders would be inadequate to protect the public interest of national security; and to R v Khazaal [2006] NSWSC 1061 (Khazaal), to a similar effect. Senior counsel for the Commonwealth entities relied on the authorities referred to by counsel for the NSW Police Commissioner (18/12/25; T 160.30-38) and noted that these were consistent with the written submissions in reply filed by the Commonwealth entities.

83. In reply, senior counsel for the applicant observed that AIX20 (first instance) and Khazaal related to “national security” information and submitted that there was no evidence before the primary judge, at least in the open materials, concerning risks involved in disclosure only to the applicant’s legal representatives (18/12/25; T 161-163).

Mention on 20 February 2026

84. Following the hearing, the matter was listed for mention before the primary judge on 20 February 2026. On that occasion, his Honour stated in open court (20/02/26):

I simply make this further observation that no party has sought a restrictive counsel approach to an alternative mechanism for material that is subject to the public interest immunity claim being made available to the parties and I take the view that it is not open to the Court to give a direction in that regard of its own volition.

85. The applicant made no submission in response to this observation. However, on 26 February 2026, the applicant’s solicitors sent an email to the primary judge’s chambers, referring to the observation made by his Honour at the mention on 20 February 2026 and stating that:

[the applicant’s] position is that, if the Court is minded to uphold a public interest immunity claim, the Court should first consider whether or not restricted access is adequate and, if so, an order should be made for restricted access, such that the accused is not completely foreclosed from accessing the relevant material.

and stating that “this was addressed” in the written and oral submissions, which the email cross-referenced.

Determination

86. As adverted to above, the applicant submits that, by failing to acknowledge the submission that was made (i.e., as to there being an onus or persuasive burden on the party claiming PII to negative the use of less restrictive measures) and to consider it, the primary judge erred in his approach in a way that amounted to the misapplication of relevant principles and/or a failure to take into account a material consideration having regard to Peters and the terms of s 130(5)(d) of the Evidence Act.

87. We do not accept that his Honour failed to consider the applicant’s submissions as to the issue raised by Ground 2. What his Honour made clear at [37] (as his Honour had directly raised with the parties at the mention after judgment was reserved), was that no restricted access order had been sought. None had indeed been sought. The fact that his Honour raised with the parties that no restrictive access order had been sought indicates that his Honour was clearly alive to the question whether there might be some less restrictive means available to facilitate disclosure. The fact that the applicant did not, and does not, know the contents of the documents over which PII is claimed would not have precluded such an application. The applicant was made aware via the open affidavits filed in support of the PII claim of the general categories of documents in respect of which immunity was claimed.

88. For the reasons put forward by the Commonwealth and State entities, there was no “onus” on them to negative a reason why less restrictive measures should not be adopted for disclosure. As his Honour noted, in Madafferi v R [2021] VSCA 1; (2021) 287 A Crim R 380 at [43] (citing Director of Public Prosecutions (Vic) v Debono [2012] VSC 476; (2012) 225 A Crim R 585 at [28]), the Victorian Court of Appeal explained that, to the extent it is appropriate to speak of an “onus” in the context of the PII balancing exercise, the onus lies upon the party asserting PII to establish that the public interest in confidentiality outweighs the public interest in disclosure. The applicant does not dispute this.

89. Insofar as complaint is made as to the adequacy of the primary judge’s reasons, we consider that the fact that his Honour did not explain why, in respect of each of the categories over which PII was claimed, less restrictive access would not be appropriate is readily applicable when there was no application for a restricted access order. We accept, as the Commonwealth entities submit, that his Honour’s reasons would most naturally be read as taking account of the range of considerations raised before his Honour even though not necessarily adverted to in the reasons (the Commonwealth entities referring in this context to Fuller v Albert (No 2) [2021] NSWCA 183 at [19]-[20] (Macfarlan and Brereton JJA, and Emmett AJA)).

90. In any event, we have reviewed the documents in respect of which PII is claimed. The applicant himself appears to accept that where a PII claim is made to protect the integrity of an ongoing investigation or confidential police sources, the risk of inadvertent disclosure may be unacceptable. We accept that acknowledgment is appropriate. As to the documents where the claim is to protect international relations (the category of documents that the applicant suggests would most readily be amenable to a restricted access regime), we are of the view that they have no probative value to the applicant’s permanent stay application (even on the broad way in which the issues on that application have been identified to date) and hence, on the balancing exercise, the PII claims must be upheld and no question of restricted access would arise. In those circumstances, even if the error contended for by Ground 2 were to be made good, no different outcome would follow in respect of the documents the subject of this ground.

91. Accordingly, leave to appeal on Ground 2 is refused.

Orders

92. For the above reasons, we make the following orders:

93. Extend the time for filing the application for leave to appeal to 22 May 2026.

94. Grant leave to appeal on Grounds 1(c) and (d) only.

95. Dismiss the appeal.

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