R v Achrafi; R v Zakaria (No 2)

1. [1]

   HIS HONOUR: On 4 April 2025, Masood Zakaria (“Zakaria”) and Adam Achrafi (“Achrafi”) were arraigned in the Supreme Court on counts 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. Each of the accused entered a plea of not guilty and a joint trial date was fixed for 29 September 2025 before me as the trial judge.

2. [2]

   Relevant background is that on 5 May 2020, Zakaria was charged with an unrelated matter (perverting the course of justice) and granted bail. On or about 13 December 2021, he breached his bail by absconding overseas. On 15 December 2021, an arrest warrant was issued on six fresh charges, including a charge of conspiracy to murder (the alleged intended victim not being either of the two deceased persons named in the present charges).

3. [3]

   On 29 January 2023, Zakaria was arrested in Türkiye and held in immigration detention by local authorities. On about 4 December 2023, Zakaria was deported from Türkiye and transferred to Australia in custody. On 8 May 2024, he was charged with the present offences.

4. [4]

   During the course of pre-trial hearings, Zakaria made an application for the trial date to be vacated to permit him to prepare and make an application for a permanent stay, on the basis of an alleged abuse of process by the involvement of Australian authorities in his deportation by Turkish authorities to Australia. On 8 September 2025, I acceded to that application: R v Achrafi; R v Zakaria (No 1) [2025] NSWSC 1061 (Zakaria and Achrafi (No 1)).

5. [5]

   Through his solicitor, Zakaria has issued subpoenas for the production of documents by various State and Commonwealth authorities. In response to five subpoenas issued in June 2025, a quantity of material has been produced to Zakaria and there remains resistance to further production and/or disclosure, pursuant to claims of a Public Interest Immunity (PII) and/or Client Legal Privilege (CLP). On 2 October 2025, I set a timetable for the filing of open and confidential material in respect of them, as subsequently modified. A sixth subpoena, issued in November 2025 on the Australian Federal Police, is challenged by the Australian Federal Police as to whether there is a legitimate forensic purpose and oppression. All six subpoenas were the subject of a four-day hearing in December 2025, which included a session of approximately one hour in closed court in the absence of Zakaria and his legal representatives.

The June 2025 subpoenas

1. [6]

   Five of the subpoenas, which sought the production of documents in identical terms, were filed on 12 June 2025 (the June 2025 subpoenas). Four were served on the following Commonwealth agencies: the Australian Federal Police (AFP); the Australian Border Force (ABF); the Department of Home Affairs, (DHA); and the Commonwealth Attorney-General’s Department (AGD). The remaining June 2025 subpoena was served on the New South Wales Police Force (NSWPF).

2. [7]

   The substantive parts of the June 2025 subpoenas are as follows.

3. [8]

   Orders are sought on behalf of five Commonwealth agencies (the Commonwealth) upholding claims of PII and/or CLP in respect of some or parts of documents produced in response to the June 2025 subpoenas. These are three agencies upon which the subpoenas were served (the AFP, the DHA and the AGD) and two others: the Australian Criminal Intelligence Commission (ACIC) and the Department of Foreign Affairs and Trade (DFAT).

4. [9]

   The affidavit evidence relied upon by the Commonwealth in support of its PII claim is as follows.

5. [10]

   Ian McCartney, who is a Deputy Commissioner of the AFP, in an open affidavit dated 21 November 2025, claimed PII over all or parts of 298 documents (later reduced to 213 documents) produced in response to the subpoena issued on the AFP as well as over some material produced by the DHA and the NSWPF in response to the subpoenas issued on those agencies. Also read at the hearing was a confidential affidavit by Deputy Commissioner McCartney dated 12 December 2025.

6. [11]

   Claire Rees is a Commander of the ABF, which is within the DHA. Her affidavit, dated 21 November 2025, identifies three documents that are produced by the ABF over which the DHA claims PII. Also read at the hearing was a confidential affidavit by Commander Rees dated 8 December 2025.

7. [12]

   Susie Williamson de Vries is an Assistant Secretary of the AGD’s International Cooperation Unit. Her affidavit is in support of a claim of PII made by the AGD over a part of a document produced by the DHA. Also read at the hearing was a confidential affidavit by Assistant Secretary Williamson de Vries dated 10 December 2025.

8. [13]

   Carey Stent is the State Director of ACIC for Queensland and the Northern Territory. At the time he made his affidavits he was also the Acting National Manager, Collection Operations, of ACIC. In his open affidavit, dated 21 November 2025, he makes a claim of PII over 36 documents, in whole or in part, that have been produced in response to subpoenas issued to the AFP, the DHA and the NSWPF. Also read at the hearing was a confidential affidavit by Mr Stent dated 12 December 2025.

9. [14]

   Harinder Sidhu is the Deputy Secretary, International Security, Legal and Consular Group within DFAT. In her open affidavit dated 21 November 2025, she claimed PII over parts of five documents that were produced by the AFP, on the basis that disclosure had the potential to harm Australia’s international relations and national security. The documents were annexed to a confidential affidavit by Deputy Secretary Sidhu dated 10 December 2025.

10. [15]

    The Commonwealth (the AFP Commissioner) also seeks an order that, on the basis of CLP, it not be required to produce parts or all of 24 documents in response to the June 2025 subpoena. In support of its CLP claim, the Commonwealth relies upon the affidavit evidence of Alison Macdonald, general counsel, AFP, 21 November 2025 (a confidential exhibit is annexed to the open affidavit).

11. [16]

    The NSWPF filed a notice of motion on 11 December 2025 seeking that its Commissioner and the Commissioner of the AFP be excused from producing documents or parts thereof that are responsive to the June 2025 subpoena on the basis of PII. By a notice of motion filed on the same date, the New South Wales Crime Commission (the NSW Crime Commission) sought a similar order on the same basis, only in respect of the June 2025 subpoena served upon the AFP.

12. [17]

    The NSWPF relied upon an affidavit by Scott Cook, Assistant Commissioner, NSWPF, dated 25 November 2025 and a confidential affidavit of the same date. The NSW Crime Commission relied upon an affidavit by its Executive Director, Darren Bennett, dated 10 December 2025, and a confidential affidavit of the same date. The Commissioner of the NSW Crime Commission indicated it was content to rely upon the submissions of the NSWPF.

The November 2025 subpoena

1. [18]

   The sixth subpoena, filed on 14 November 2025, was issued to the AFP (the November 2025 subpoena). The substantive parts are as follows:

2. [19]

   By a notice of motion filed on 2 December 2025, the AFP sought to set aside Parts B (pars [3], [4]) and D (pars [6] to [9]) of the subpoena. In submissions, it contended that the specified paragraphs lack a legitimate forensic purpose and, as well, par [3] is oppressive. The AFP relied upon parts of an affidavit by Adam Rice, Commander, Transnational Operations of the AFP dated 1 December 2025. [1] As well, Commander Rice gave evidence in the hearing.

Relevant legal principles

1. [20]

   Part 3.10 of the Evidence Act 1995 (NSW) (the Evidence Act), titled “Privileges”, includes ss 130 and 131A, which are as follows.

2. [21]

   Since the material is not, at this stage, being adduced as evidence (s 130(1)) but rather, is sought for a preliminary proceeding (the application for a permanent stay), s 131A applies:

3. [22]

   The terms of s 131A(1) confine its operation to the adjudication of a claim for PII that is made by the entity that is obliged to produce the documents. A PII claim that is made by a different entity, in this case by ACIC, DFAT, the NSWPF and the NSW Crime Commission (in relation to that part of their PII claim that relates to documents that were produced by subpoenaed parties other than them), is to be adduced according to common law: Derbas v The Queen (2012) 221 A Crim R 13; [2012] NSWCCA 14 at [8]. The common law test involves three steps: first, the determination of whether there is a public interest in the non-disclosure of the information; second, whether there is the public interest of the proper administration of justice in its disclosure; and third, if both public interests are established, a balancing or weighing exercise to determine which prevails. In Alister v The Queen (1983-84) 154 CLR 404 at 412; [1984] HCA 85, Gibbs CJ referred to the test, adding:

4. [23]

   In Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595 (Commissioner of Police v AG (NSW)), Wright J likened the measuring of the public interest of the proper administration of justice in disclosure to the manner in which a legitimate forensic purpose in disclosure is established:

5. [24]

   Wilson and Dawson JJ at 434, in considering the balancing exercise, extracted a passage from the judgment of Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43 at 38-39:

6. [25]

   In Madafferi v R (2021) 287 A Crim R 380; [2021] VSCA 1, Emerton, Weinberg and Osborn JJA, in a judgment of the Court, said as to the onus in the balancing exercise:

7. [26]

   Both the statutory and common law tests require the Court to assess whether there is a public interest favouring non-disclosure on the part of the withholding party and a public interest in the proper administration of the law in the disclosure of the material. If both are made out, the Court then weighs those public interests according to the respective statutory or common law considerations to determine whether to uphold the PII claim.

8. [27]

   Section 118 of the Evidence Act, which is concerned with the adducing of evidence that is the subject of a CLP claim, also sets the relevant test for a claim of CLP for the purposes of disclosure.

9. [28]

   The party claiming CLP bears the onus of establishing the claim. In Re Southland Coal Pty Ltd (receivers & managers appointed) (in liq) (2006) 203 FLR 1; [2006] NSWSC 899 (Southland Coal), Austin J formulated principles that apply to a claim for CLP, which included the following at [14]:

10. [29]

    In H M & O Investments Pty Limited v Ingram (No.1) [2011] NSWSC 550 McDougall J referred to the last sentence of Austin J’s judgment in the extracted passage and observed, at [11] that the quote in that sentence was taken from the decision of Young J in AWB Ltd v Cole at [133].

11. [30]

    A matter of relevance to this application is that a CLP claim, properly made, is to legal advice itself, either explicitly given or inferentially apparent, rather than to, say, a reference to a party having received or sought legal advice.

12. [31]

    The party seeking the production of the material bears the onus of establishing that they had a legitimate forensic purpose for so doing: Attorney General for New South Wales v Chidgey [2008] NSWCCA 65 at [5]. It is necessary, therefore, for that party to identify the purpose for which it seeks production. The exercise cannot be a “fishing expedition”; the material must have “apparent relevance” to the party’s case. In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Blacktown City Council), Bell P outlined the approach to be taken to the determination of a claim that a subpoena lacks a legitimate forensic purpose, which I respectfully adopt:

13. [32]

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

14. [33]

    The Commonwealth submits that the forensic purpose is narrower; that it is confined to the issues that were identified in Zakaria and Achrafi (No 1) as the anticipated basis for the stay application, which are akin to those issues that were identified in Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 (Moti v The Queen). Zakaria submitted that while Moti v The Queen would be relevant to his stay application, “his application will turn on its own facts.” I take note of the relevant principles that apply to an application for a permanent stay of a criminal prosecution which are conveniently stated at La Rocca v R [2023] NSWCCA 45 at [34], in particular, the breadth of the circumstances that may base a successful application: [34(iii), (iv), (v) and (vii)]. See also Moti v The Queen at [60].

15. [34]

    The onus is on the subpoenaed party to establish that its terms are oppressive. The Commonwealth submits that part of the November 2025 subpoena is insufficiently particularised and so wide that compliance would be unduly burdensome on the AFP’s resources.

16. [35]

    An obligation rests on the party seeking production to specify with reasonable particularity the documents which are required to be produced: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573. In R v Taleb (2019) 276 A Crim R 192; [2019] NSWSC 21, Hamill J observed at [26]:

17. [36]

    The Court has the power to order the production of a disputed document and inspect it in relation to a question that arises under Part 3.10 of the Evidence Act, which includes questions of PII and CLP: s 133 of the Evidence Act. I have examined the documents that are the subject of the PII and CLP claims. In so doing, I am conscious that Zakaria, being unaware of their contents, does not have the opportunity to be heard on the merits of the applications.

18. [37]

    I note 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: see AIX20 v Director-General of Security (No 2) [2024] FCA 1130 and AIX20 v Director-General of Security [2025] FCAFC 38, or some other form of limited disclosure, of the types considered in the discussion in Commissioner of Police v AG(NSW) at [65] – [68].

19. [38]

    In the course of my consideration below, a reference to a document number is in square brackets followed by the page number of the confidential exhibit, where that is indicated.

20. [39]

    Central to both claims by the AFP that parts of the November 2025 subpoena lacks a legitimate forensic purpose and is oppressive, is an issue as to whether there is a legitimate forensic purpose in Zakaria seeking the production of records concerning four other named deportees from Turkey who were returned to Australia in the 16-month period before Zakaria’s return (“the other deportees”). Commander Rice, in his affidavit, states that XY was deported from Türkiye to Australia in August 2022, AB and Haddad in December 2022 and Habkouk, who like Zakaria was arrested in January 2023, in May 2023. Shortly before the hearing, Zakaria gave notice that he is content to amend the terms of Part B of the subpoena so that the timeframe in par [3] from “2021-2024” is narrowed to “1 January 2022 to 1 January 2024”, to better reflect the relevant period.

21. [40]

    There are records produced in response to the June 2025 subpoenas over which claims are not made that refer to one or more of the other deportees as the subject of discussions between the Australian and Turkish authorities with a view to them also being transferred to Australia to face serious criminal charges.

22. [41]

    [Redacted].

23. [42]

    The Commonwealth submits that material concerning the other deportees does not have a legitimate forensic purpose; in any event, it would entail a search exercise of such magnitude that it would be oppressive.

Legitimate forensic purpose

1. [43]

   Zakaria submits that the legitimate forensic purpose of Part B is to better understand the circumstances of Zakaria’s return and what was known at that time as to its lawfulness. The submission is that the material that has been produced to Zakaria establishes that there appears to be a commonality of legal issues and strategic considerations between the circumstances of Zakaria’s return and the return of the other deportees which is evidenced in communications between Australian authorities concerning Zakaria. They refer to an established pathway for returns and that an imperilling of one might jeopardise others. That being so, the subpoenaed records on the return of the other deportees will shed light on the nature of that pathway and inform an understanding of the state of awareness by Australian authorities of its lawfulness according to Turkish law, which includes in respect of Zakaria’s return.

2. [44]

   The Commonwealth submits that the parameters of legitimate forensic purpose in preparation for the permanent stay application are set by Moti v The Queen, in particular, that they are limited to the factual issues as crystallised by the majority at [63]; that the Australian authorities did an act to facilitate the deportation which was unlawful according to the law of the deporting state and, at that time, the Australian authorities knew it to be so. The Commonwealth submits that the adjournment of Zakaria’s trial was granted by the Court on the basis that there was credible prima facie evidence of those three elements, and that Zakaria’s outline of material that has a legitimate forensic purpose goes well beyond them.

3. [45]

   To that end, the Commonwealth submits that the material sought in respect of the other deportees is irrelevant: “what may have occurred in respect of the return to Australia and prosecution of [the other deportees] cannot, on any view, sensibly inform the circumstances of the accused’s own return to Australia”. The Commonwealth submits that the only apparent similarities are as to the fact of deportation to Australia from the same country; that they were described as “escorted”, where each is of interest to law enforcement in Australia; and the temporal proximity of their deportations to Zakaria’s. There is no indication that the other deportees were, or are suspected to have been, deported contrary to Turkish law and therefore the subpoenaing of records concerning their deportations has no legitimate forensic purpose.

4. [46]

   Some of the references to the other deportees in communications between AFP staff suggest 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. An example is the screenshot at [181] 767 of a text message sent shortly after the arrest of Zakaria and Habkouk, over which a claim of privilege is not made:

5. [47]

   The reference to the cost involved in that course suggests that an element of it was that the Australian authorities pick up the bill for air transfers back to Australia. [Redacted]. As noted in Zakaria and Achrafi (No 1), there is some indication that Zakaria’s deportation occurred before the Turkish legal process as to his deportation was completed, and that in those circumstances it was contrary to Turkish law.

6. [48]

   I am satisfied that, in the terms of Blacktown City Council, there is a reasonable basis beyond speculation that the procedure deployed by Turkish and Australian authorities with the deportations of the other deportees has a legitimate forensic purpose. This is 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.

7. [49]

   I am satisfied that Zakaria has a legitimate forensic purpose in seeking the production of records of communications between Australian and Turkish authorities concerning the legality of the deportation of the other deportees to Australia and records that are relevant to the awareness of Australian authorities as to the lawfulness of those deportations according to Turkish law.

8. [50]

   In my view, it does not follow that because Zakaria’s application for the vacating of the trial date succeeded due to credible evidence of an abuse of process based on what was said by the High Court in Moti v The Queen that his application for a permanent stay of his trial is confined to the same precise basis upon which an abuse of process was found to have occurred in that case. However, the legitimate forensic purpose in obtaining records concerning the transfers of the other deportees is 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. Accordingly, exercising the power of the court pursuant to s 130(2) of the Evidence Act, I reformulate the terms of Part B of the November subpoena as follows.

9. [51]

   As to Part D, Zakaria seeks records as to “non-trivial” gifts and funding to Turkish authorities, submitting: “It is not speculative to suggest that the AFP may have conferred benefits to Turkish authorities in order to secure preferred outcomes in connection with the return of wanted persons to Australia.” This proposition is based on the AFP having facilitated Zakaria’s return to Australia by obtaining and forwarding his passport to Turkish authorities, extracts from already-disclosed records that refer generally to the AFP’s close working relationship with Turkish authorities and having provided intelligence to encourage deportations of Australians to here rather than to “a country of [the deportee’s] own choice”. Zakaria further submits:

10. [52]

    The AFP submits that Part D is speculative; that there is no suggestion in the material that the Turkish authorities or individuals were responsive to gifts, or that the Turkish National Police (TNP) or the Presidency of Migration Management (PMM) were responsive to funding by Australian authorities in a way that may have impacted upon any decision by Turkish authorities as to the deportation of Zakaria.

11. [53]

    I am satisfied that no aspect of Part D of the subpoena passes the test of “apparent relevance” to the likely issues of the stay application. There is nothing I have observed in the material thus far produced that suggests that there was a quid pro quo involving Zakaria or the other deportees for material assistance or any other form of gift or transfer of training or other resources by an Australian individual or agency to a Turkish individual or agency. Accordingly, the AFP is relieved from compliance with Part D of the subpoena.

Oppression

1. [54]

   Commander Rice’s affidavit evidence is to the effect that the AFP did not maintain a separate system or set of records relating to the deportation of individuals to Australia to face criminal charges, so that locating the documents sought in par [3] would entail a review of the “extensive material” that the AFP holds relating to the other deportees. This would involve the manual search of the records pertaining to the other deportees in multiple locations, including international posts, staff’s personal drives, shared network or team drives, the Police Real-time Online Management Information System (PROMIS), Microsoft teams, emails and messaging applications and diaries, daybooks or other physical records. Additional searches by AFP Cyber Security would be required in order to ensure that the manual searches had not missed relevant material in the form of email and shared drive holdings, particularly since not all relevant staff may have been identified, and staff employed during the period in question may have left the AFP so that their accounts are no longer manually searchable. Commander Rice anticipated that the PROMIS search would require a manual review by a team of officers.

2. [55]

   Commander Rice set out the results of attempted online searches of the Cyber Security and PROMIS databases, using four combinations of key words (“extradit* OR deport* OR remov*”; “law* OR “legal*”; “prosecut*”; “AGD OR DFAT”) each with the deportee’s family name. The number of hits when these searches for each deportee were applied across the AFP’s centralised email records storage system and shared networks was around 317,000. Allowing for overlap, Commander Rice considered the total would still be in the tens of thousands, if not more than 100,000. Similar searches of the PROMIS system could not be completed, as the system crashed.

3. [56]

   Commander Rice stated that if these searches were able to be successfully undertaken and manually reviewed, there would remain a need to further review them for PII claims. In all, in his opinion, the search and production of the subpoenaed documents would likely take at least 12 months and would require the diversion of staff from crucial programs such as counter-terrorism operations.

4. [57]

   In his oral evidence, it became apparent that the figures in Commander Rice’s affidavit of search hits, manual review time estimates and the diversion of staff resources, were based on the four-year search period of the subpoena rather than the revised two-year period.

5. [58]

   Commander Rice explained that using the conjunction “OR” allowed the search software to return responses that include the family name and at least one of the words so conjuncted. An asterisk enabled a hit with any word that included that combination of letters; for example, “prosecution” for “prosecut*”. Commander Rice accepted that the search would have picked up emails that had no relevance to the search objective, for example, emails which contained one of the family names together with a disclaimer concerning CLP or a reference to the Director of Public Prosecutions.

6. [59]

   Commander Rice was of the view that there would have been “a dozen or more” officers at international posts in the relevant period who would be required to manually search their records for responsive material, as well as those who since rotated out of those posts. He agreed that there existed software that could be utilised by the AFP to sift material produced by manual and electronic searches in order to remove duplicates.

7. [60]

   The AFP submission, simply stated, is that par [3] is oppressive because the necessary searches and manual reviews that compliance would require would be unduly burdensome on the AFP’s resources.

8. [61]

   As to the AFP’s burden of compliance, Zakaria’s submissions included a clarification that not every document relating to the deportees’ return is sought but rather, only those that disclose a consideration of the lawfulness or otherwise of the proposed methods for their return and/or risks arising from those methods. As well as the halving of the overall timeframe to be searched to two years, Zakaria submits that a focus on the periods leading up to the departure date of each deportee would be reasonable. Zakaria proposes that, rather than the first, second and third of the four combinations of search terms, a sufficient search criteria would be the deportee’s name and “Turkey” OR “Türkiye”, together with (as I understand the submission in light of Commander Rice’s explanation of asterisks and conjunctions) the conjunction AND followed by “extradit* OR deport*”

9. [62]

   Zakaria submits that use of software to eliminate duplicates would further reduce the volume of documentation to be manually checked. I note that Commander Rice’s evidence suggested that the AFP was able to apply such software to search results.

10. [63]

    The search that has been attempted thus far by the AFP is unachievable, in view of the breadth of search criteria and system crashes and therefore is oppressive. Although the refined terms of par [3] are still likely to require extensive searches on the part of the AFP, in all likelihood they will be considerably less consuming of its resources than the original terms. It is a matter for the AFP to devise a methodology that ensures compliance with a subpoena for the production of records and, if necessary, for a court to determine whether it has taken all steps reasonably within its power to do so: Dunn v KAZ Group Limited [2006] NSWSC 8 at [20]. That said, Zakaria has questioned the necessity to require staff who were at Middle-Eastern or Mediterranean AFP posts other than the Türkiye AFP Post in the relevant period to search their records and has proposed refined search terms. Both proposals seem eminently sensible.

11. [64]

    For these reasons, I find that the terms of par [3], as modified, are not oppressive.

The AFP’s PII claim

1. [65]

   The AFP claims PII in respect of certain material that it, the DHA and the NSWPF are required to produce. In his open affidavit, Deputy Commissioner McCartney identified five categories of PII claims:

   1. (1)

      “Category 1: Sensitive policing methodology. This is information relating to law enforcement investigative techniques and tools. Significant harm to the public interest could be occasioned if those techniques and tools are publicly disclosed because they could be exploited or avoided by organised crime.

   2. (2)

      Category 2: Ongoing investigations and prosecutions. This is information which, if disclosed, would likely prejudice ongoing AFP investigations and criminal prosecutions both in Australia and overseas.

   3. (3)

      Category 3: Protection of witnesses or confidential sources. This is information which would tend to identify persons who provide confidential information or assistance to law enforcement agencies and which, if disclosed, amongst other harms, could endanger the safety of those persons.

   4. (4)

      Category 4: Safety of AFP personnel. This is information which would identify particular AFP personnel, including locally engaged staff who work in overseas AFP locations. The disclosure of this information, amongst other harms, would expose those members to a risk of personal physical harm.

   5. (5)

      Category 5: Protection of relationships with overseas and international law enforcement partners and foreign government agencies. This is information which, if disclosed, amongst other harms, would impact the extent to which overseas and international agencies may be willing to share sensitive information with the AFP that is critical to the disruption of TSOC (Transnational Serious Organised Crime).”

2. [66]

   As to the level of risk that is associated with the particular items of material being disclosed, Deputy Commissioner McCartney stated in his open affidavit:

3. [67]

   Deputy Commissioner McCartney explained that his opinions as to the documents over which PII is claimed are based on his extensive experience at multiple levels of responsibility with the AFP: his 35 years of service and the nature of the senior positions he has held over the last 21 years. Those positions include Manager Crime, Criminal Assets and Counter Terrorism. (2009); Assistant Commissioner, Grime Operations (2013); Assistant Commissioner, Organised Crime and Cyber (Crime) (2015); Assistant Commissioner, Counter Terrorism (2017); Deputy Commissioner Investigations (DCI) (2019); Deputy Commissioner National Security (DCNS) (2023).

4. [68]

   As DCNS, Deputy Commissioner McCartney was also the chair of the Sensitive Investigations Oversight Board (SIOB), which provides strategic oversight, direction and management for AFP sensitive investigations. He explained: “The purpose of escalating particularly sensitive investigations to the SIOB is to enable the senior executive to have direct awareness and oversight of these sensitive matters, and to make recommendations on certain tactical and strategic investigative and operational decisions for endorsement by the SIOB.”

5. [69]

   In 2024, Deputy Commissioner McCartney was appointed Deputy Commissioner Crime (DCC). As DCC, he is part of the AFP’s strategic leadership team and reports directly to the Commissioner.

6. [70]

   His core responsibilities as a Deputy Commissioner relevantly include building and maintaining relationships with stakeholders including international partners; strategic oversight and command of the AFP’s Transnational Operations (TNO) teams, which target global and domestic Transnational Serious Organised Crime (TSOC) threats to Australia and Australian interests. One of these teams is the TNO Disruption team, which is responsible for Operation Gain, which he described thus:

7. [71]

   He stated:

8. [72]

   As well:

9. [73]

   Deputy Commissioner McCartney stated (at [108] of his open affidavit) that some claims made on the basis of CLP may also be the subject of a PII although they have not been indicated as such. He sought an opportunity to be informed of the rejection of any CLP claims so that he could then consider if there is a PII claim in respect of the same information.

10. [74]

    The PII claims of the AFP are made in respect of the whole or part of 213 documents, tendered as a confidential exhibit containing two volumes of photocopied documents which are colour-coded according to the applicable category of the PII claim. Deputy Commissioner McCartney has not addressed the PII claim in respect of particular documents, but rather, has made overall observations as to the five categories of PII claims.

11. [75]

    [Redacted].

12. [76]

    [Redacted].

13. [77]

    I am satisfied that, with the partial exception of two documents that I have identified in the preceding paragraph, taking into account the issues likely to be raised by Zakaria in the stay application, the public interest in the administration of justice by the non-disclosure of any of the category 1 documents outweighs the public interest in their disclosure.

14. [78]

    [Redacted].

15. [79]

    I am satisfied that the balancing exercise required by s 130(1) of the Evidence Act favours the category 2 documents in the AFP’s PII claim not being disclosed, with one exception that I have identified in the preceding paragraph.

16. [80]

    [Redacted].

17. [81]

    I am satisfied that the balancing exercise required by s 130(1) of the Evidence Act favours category 3 documents in the AFP’s PII claim not being disclosed, with one partial exception that I have identified in the preceding paragraph.

18. [82]

    [Redacted].

19. [83]

    I am satisfied that the balancing exercise required by s 130(1) of the Evidence Act favours category 4 documents in the AFP’s PII claim not being disclosed.

20. [84]

    [Redacted].

21. [85]

    [Redacted].

22. [86]

    [Redacted].

23. [87]

    With those competing public interests in mind, I have considered the documents in question. I am satisfied that the public interest in non-disclosure of the parts of documents over which a category 5 PII claim is made outweighs the competing public interest in disclosure of those parts, except for the following documents. Determinations to allow disclosure with certain modifications are made pursuant to s 130(2) of the Evidence Act.

24. [88]

    [Redacted].

25. [89]

    [Redacted].

26. [90]

    [Redacted].

27. [91]

    [Redacted].

28. [92]

    [Redacted].

29. [93]

    [Redacted].

30. [94]

    [Redacted].

31. [95]

    [Redacted].

32. [96]

    [Redacted].

33. [97]

    [Redacted].

34. [98]

    [Redacted].

35. [99]

    [Redacted].

36. [100]

    [Redacted].

37. [101]

    [Redacted].

38. [102]

    [Redacted].

39. [103]

    [Redacted].

40. [104]

    [Redacted].

41. [105]

    [Redacted].

42. [106]

    [Redacted].

43. [107]

    [Redacted].

44. [108]

    [Redacted].

45. [109]

    [Redacted].

46. [110]

    [Redacted].

47. [111]

    [Redacted].

48. [112]

    [Redacted].

49. [113]

    [Redacted].

50. [114]

    [Redacted].

51. [115]

    [Redacted].

52. [116]

    [Redacted].

53. [117]

    [Redacted].

54. [118]

    [Redacted].

The ABF’s PII claim

1. [119]

   [Redacted].

2. [120]

   I am satisfied that the balancing of the two competing public interests favours non-disclosure of those parts of certain documents that are the basis of the ABF’s PII claim.

The AGD’s PII claim

1. [121]

   [Redacted].

2. [122]

   I am satisfied that the public interest in non-disclosure of the material that is the subject of the PII claim made by Assistant Secretary Williamson de Vries on behalf of the AGD outweighs the public interest in its disclosure.

ACIC’s PII claim

1. [123]

   [Redacted].

2. [124]

   [Redacted].

3. [125]

   I am satisfied that the public interest in non-disclosure of the material that is the subject of the PII claim made on behalf of ACIC outweighs the public interest in its disclosure.

DFAT’s PII claim

1. [126]

   [Redacted].

2. [127]

   I am satisfied that the parts that are the subject of the PII claim should not be disclosed. There is a high public interest in their non-disclosure, for the reasons submitted by Deputy Secretary Sidhu, and no discernible relevance in the material (and therefore a low level of public interest) in their disclosure.

The NSWPF’s PII claim

1. [128]

   The appropriate test for the PII claim by the NSWPF in respect of documents it has produced is the statutory test (s 130 of the Evidence Act). The claims by the NSWPF and the NSW Crime Commission in respect of documents produced by the AFP in response to a subpoena issued against the AFP are to be determined pursuant to the common law test, for reasons explained at [22] above.

2. [129]

   Assistant Commissioner Cook of the NSWPF, in his open affidavit, pressed a PII claim against a document that is produced by the NSWPF and four documents that were produced by the AFP.

3. [130]

   [Redacted].

4. [131]

   I am satisfied that the public interest in non-disclosure of the material that is the subject of the PII claim made by Assistant Commissioner Cook of the NSWPF outweighs the public interest in its disclosure.

The NSW Crime Commission’s PII claim

1. [132]

   [Redacted].

2. [133]

   I am satisfied that the public interest in non-disclosure of the material that is the subject of the PII claim made by Executive Director Darren Bennett outweighs the public interest in its disclosure.

The AFP’s CLP claim

1. [134]

   In her open affidavit, Alison Macdonald, general counsel of the AFP, claimed CLP over 24 documents that fall into two categories, which she described thus:

2. [135]

   By reference to a schedule of the 24 documents and the page numbers of those documents that appear on the top right of each page and mindful of my observations in [28] to [30] above, I make the following findings.

3. [136]

   [Redacted].

4. [137]

   [Redacted].

5. [138]

   [Redacted].

6. [139]

   [Redacted].

7. [140]

   [Redacted].

8. [141]

   [Redacted].

9. [142]

   [Redacted].

10. [143]

    [Redacted].

11. [144]

    [Redacted].

12. [145]

    [Redacted].

13. [146]

    [Redacted].

14. [147]

    [Redacted].

15. [148]

    [Redacted].

16. [149]

    [Redacted].

17. [150]

    [Redacted].

18. [151]

    Zakaria seeks that some parts of the material be subject to a ruling that its use as evidence be limited, pursuant to s 136 of the Evidence Act. I understand those parts to be any of the material to be disclosed that contains allegations, assertions or imputations of criminal wrong-doing by him. I will so limit the use to be made of the material.

19. [152]

    I make the following orders.

    1. (1)

       The claims of public interest immunity and client legal privilege made by the Commonwealth over parts of the material produced to the Court by the Australian Federal Police; the Australian Border Force; the Department of Home Affairs; and the Commonwealth Attorney-General’s Department in response to the subpoenas issued on 12 June 2025 are upheld, except for, in relation to the claim for public interest immunity, the records identified in the attached confidential schedule A and, in respect for the claim of client legal privilege, the records identified in the attached confidential schedule B.

    2. (2)

       Pursuant to the notice of motion filed by the Commissioner of the New South Wales Police Force (“the Commissioner”) on 11 December 2025, the Commissioner and the Commissioner of the Australian Federal Police are excused from producing the records over which public interest immunity is claimed in confidential exhibits SC-2 and SC-3 of the confidential affidavit of Assistant Commissioner Scott Cook dated 25 November 2025.

    3. (3)

       Pursuant to the notice of motion filed by the New South Wales Crime Commission on 11 December 2025, the Commissioner of the Australian Federal Police is excused from producing the records over which public interest immunity is claimed in the confidential affidavit of Executive Director Darren Bennett dated 10 December 2025.

    4. (4)

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

    5. (5)

       Pursuant to s 136 of the Evidence Act 1995 (NSW), I direct that any evidence concerning alleged or suspected involvement on the part of the accused in criminality and/or the commission of offences contained in the evidence before the Court on the notices of motion and in respect of the claims of public interest immunity and client legal privilege be admitted subject to its use in the proceedings being limited to proof of the existence of the allegations or suspicions and not proof of any conduct or state of mind of the accused alleged to give rise to the allegations or suspicions.