R v Achrafi; R v Zakaria (No 1)

1. [1]

   HIS HONOUR: On 4 April 2025, Masood Zakaria and Adam 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. The accused entered pleas of not guilty and a trial date was fixed for 29 September 2025.

2. [2]

   On 13 June 2025, as the intended trial judge, I set aside the week commencing 1 September 2025 for the hearing of pre-trial issues. The co-accused anticipated multiple pre-trial issues [Redacted].

3. [3]

   By notices of motion and supporting affidavits filed on 22 August (by Mr Achrafi) and on 25 August 2025 (by Mr Zakaria) the co-accused sought orders that the pre-trial hearing and the trial date be vacated. The Crown opposed the orders sought. The applications were heard on 27 August and 1, 3, 4 and 8 September 2025. On that last date, I ordered that the trial date be vacated. These are my reasons for that determination.

4. [4]

   In their affidavits in support of their notices of motion, the co-accused’s solicitors advanced multiple bases to vacate the trial, all but one of which I will canvass briefly. I then focus upon the primary basis that was advanced by Mr Zakaria, which persuaded me that it was inevitable that the trial would not be ready to commence on the allocated date, namely, that the trial date be vacated to permit an application for a permanent stay to be made, on the basis of an abuse of process by Australian authorities in the deportation of Mr Zakaria to Australia.

5. [5]

   In his affidavit of 22 August and a further affidavit of 26 August, Mr Achrafi’s solicitor, Abdul Saddik, sought the vacating on five bases: the late disclosure by the Crown of a considerable quantity of material left insufficient time for him and trial counsel to comprehend it; he was experiencing difficulties in accessing some of the material that was in an electronic form; anticipated further disclosure of a significant quantity of material by the Crown [Redacted] and the service of an amended coincidence notice by the Crown without clarification of how the Crown case on coincidence evidence is varied from the previous coincidence notice. I note that some of the disclosure issues were able to be addressed satisfactorily over the course of the last fortnight by a co-operative approach of the parties. Others are now of little moment since the trial date will be vacated.

6. [6]

   In his affidavit of 25 August, Mr Zakaria’s solicitor, Mohammad Chahine, sought the vacating on three bases, one of which was, similar to Mr Achrafi’s concern, that late disclosure by the Crown of significant quantities of electronic material had impeded Mr Chahine’s capacity for trial readiness.

7. [7]

   The remaining two bases concerned his foreshadowed application for a permanent stay. In his affidavit, Mr Chahine and Senior Counsel briefed on the adjournment application submitted that it could not be prepared and heard prior to the trial date due to delay occasioned by resistance by some agencies to the production of documents that are likely to be relevant to the application and the time that Mr Zakaria would require to properly present his application, which may involve arranging for evidence to be given by expert witnesses.

8. [8]

   Mr Zakaria is an Australian citizen by birth. Relevant background to his departure from and return to Australia, which is drawn from material filed by the Crown or handed up by Mr Zakaria on the application, includes the following events, listed in chronological order:

   1. (1)

      On 5 May 2020, Mr Zakaria was charged with the offence of perverting the course of justice and was granted bail. His Australian passport was surrendered, pursuant to a condition of bail.

   2. (2)

      On 13 December 2021, Mr Zakaria was last seen by police on the afternoon of this date. He later departed Australia, contrary to his conditions of bail, by unknown means.

   3. (3)

      On 14 December 2021, prompted by Mr Zakaria’s suspected disappearance, police created a future Court Attendance Notice for seven offences, namely, that Mr Zakaria:

   4. (4)

      On 15 December 2021, an arrest warrant for Mr Zakaria was issued by Parramatta Local Court in respect of those offences.

   5. (5)

      In October 2022, the Australian Federal Police (the AFP) were informed by the Türkiyish National Police (the TNP) that Mr Zakaria had entered Türkiye on 1 June 2022 using an Afghani passport in the name of Masood Zikria.

   6. (6)

      In late 2022, the New South Wales Police Force (NSWPF) was taking preparatory steps to enable Australian authorities to make an application to Türkiye for the extradition of Mr Zakaria.

   7. (7)

      On 22 December 2022, the AFP Ankara post informed Türkiyish authorities that the NSWPF had charged Mr Zakaria with conspiracy to commit murder, knowingly directing the activities of a criminal group, supplying a commercial quantity of prohibited drugs and dealing with the proceeds of crime in excess of AUD$100,000. The communication attached a copy of the warrant for the seven charges in the English and Türkiyish languages together with photographs of Mr Zakaria. In the same communication, the AFP stated that it respectfully requested that the TNP give “Consideration for the removal of ZAKARIA/ZIKRIA from Türkiye”.

   8. (8)

      On 29 January 2023, Mr Zakaria was arrested and detained in immigration detention in Türkiye by local authorities, together with some other Australians and non-Australians. Mr Zakaria possessed an Afghani passport and a Moldovian passport. The understanding of the Australian authorities was that “Zakaria has been marked for deportation”, although the state to which he would be deported was not known. An internal AFP email, dated 30 January 2023, referring stated: “We need to value add to the table in order for Türkiye to decide whether to deport them to a country of their own choice or Türkiye may decide to deport them back to Australia. Türkiye will want to remove those they have little on as soon as possible”.

   9. (9)

      On 2 February 2023, the NSWPF requested advice from the New South Wales Director of Public Prosecutions as to the sufficiency of evidence for Mr Zakaria to be prosecuted for the offences that were the subject of the warrants issued on 15 December 2021.

   10. (10)

       On 9 February 2023, Australian authorities forwarded Mr Zakaria’s Australian passport to Türkiyish authorities to facilitate his “eventual deportation from Türkiye”.

   11. (11)

       By 29 November 2023, the AFP was aware that Türkiyish authorities had decided to deport Mr Zakaria to Australia “consistent with finalisation of PMM [1] immigration management processes” and that Türkiyish authorities had requested that the AFP consider paying the costs of a charter flight to be arranged by the Türkiyish authorities after the deportation. The AFP indicated that it would consider the request.

   12. (12)

       On 4 December 2023, Mr Zakaria was deported by Türkiyish authorities to Australia.

   13. (13)

       On 8 May 2024, Mr Zakaria was charged with the murders of Salim and Toufic Hamze.

The need to resolve the permanent stay issue

1. [9]

   Mr Zakaria submitted that material had come into his possession in response to partially complied-with subpoenas from relevant government and statutory agencies that suggest that Mr Zakaria’s deportation was an abuse of process, in accordance with the reasoning of the majority in Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 (Moti v The Queen).

2. [10]

   The facts in Moti v The Queen, insofar as they are relevant to Mr Zakaria’s application, briefly stated, are as follows.

3. [11]

   In December 2007, Mr Moti, an Australian citizen, was residing in the Solomon Islands. His Australian passport had been cancelled. On 22 December 2007, the Australian Acting High Commissioner to the Solomon Islands presented to the Permanent Secretary of the Solomon Islands Department of Foreign Affairs a request for the provisional arrest of Mr Moti pending an extradition request, to face charges in Australia of child sex abuse. Later that morning, Mr Moti applied to the High Court of Solomon Islands for an injunction restraining the Minister for Commerce, Industry, Labour and Immigration (the Minister) from “threatening, continuing or proceeding with the deportation and or expulsion and or removal of the [Mr Moti] from the Solomon Islands”. The Chief Justice refused the application, although observing that there were “proper procedures” for initiating the processes of extradition or deportation to which, once activated, the appellant would “have opportunity to respond” and that “[a]ny rights [the appellant] has are governed by legislation covering those processes”.

4. [12]

   On 24 December 2007, a Deportation Order against Mr Moti was made by the Minister and published in the Solomon Islands Gazette. It authorised and directed any Immigration Officer or Police Officer, any time the order is served on Mr Moti, to place him on board any ship or aircraft leaving the Solomon Islands, and to detain Mr Moti until such arrangements were completed.

5. [13]

   The same day, the Australian Acting High Commissioner was informed by the head of the Justice Ministry that the government had decided to pursue Mr Moti’s deportation. She sent a cable to Canberra in which she referred to the Minister’s orders, as published. She attached a copy of the Solomon Islands Deportation Act (the Deportation Act) to the cable and observed: “on our reading of the Deportation Act, [the appellant] has seven days in which to appeal to the High Court before being deported in this manner”. She concluded the cable by requesting advice “on travel documentation” for Mr Moti. Later the same day, a cable was received from Canberra authorising the Honiara Post of the Australian High Commission to issue a Document of Identity to Mr Moti “to enable deportation to Australia”.

6. [14]

   On 27 December 2007, Mr Moti was placed on a flight to Brisbane, accompanied by two Solomon Islands officials to whom the Australian High Commission had issued two Short Stay visas to enter Australia. A document of identity for Mr Moti had been issued by the Honiara Post the same day and passed to the two officials. Eleven months later, on 3 November 2008, Mr Moti was indicted in the Supreme Court of Queensland on seven counts of offences contrary to s 50BA of the Crimes Act 1914 (Cth), to the effect that he had sexual intercourse with a person under the age of 16 in the Republic of Vanuatu and New Caledonia.

7. [15]

   Mr Moti alleged that the deportation process involved an abuse of process by Australian authorities that could only be cured by a permanent stay of the indictment.

8. [16]

   Section 5(3) of the Deportation Act provided that a person on whom a deportation order was served could apply to the High Court within seven days of its service for a review of the order. Section 7 provided that a person could be placed on a ship or aircraft about to leave the Solomon Islands only if they had not made an application within the time prescribed or, if an application for review had been made, the person had “failed to have the order set aside”.

9. [17]

   The majority (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), referring to s 7 of the Deportation Act, said, at [42]:

10. [18]

    The majority later stated, at [53]:

11. [19]

    The majority said that the boundaries of intervention by Australian authorities that might constitute an abuse of process were not confined to criminal wrongdoing. Referring to decided cases, the majority continued, at [60]:

12. [20]

    Turning to the circumstances of the case, the majority said, at [63]:

13. [21]

    Accordingly, the indictment that was presented on 3 November 2008 was stayed as an abuse of process.

Whether there is credible prima facie evidence of an abuse of process

1. [22]

   Having regard to Moti v The Queen, the test as to whether there is credible prima facie evidence of an abuse of process devolves to three issues of fact, namely, (1) whether the deportation was unlawful according to Türkiyish law; (2) whether the Australian authorities knew at the time of the deportation that it was unlawful; and (3) whether the Australian authorities, with that knowledge, facilitated the deportation in some way.

1. Whether the deportation was unlawful according to Türkiyish law

1. [23]

   Mr Zakaria has tendered into evidence what appears to be two judgments of the Kutahya Administrative Court of Türkiye, together with translations into the English language, in which he was the moving party. One is dated 16 March 2023 and the other is 7 February 2024. Both judgments are brief and make little reference to the history or other circumstances of the applications. The first makes no reference at all to Mr Zakaria, but it has the same docket number as the second, which identifies the claimant as “Masood Zikria”. There is no evidence of how the judgments were obtained or whether there are other relevant court documents in existence. The explanation from the bar table is that they were provided by a lawyer who was retained by Mr Zakaria while he was in Türkiye, with perhaps more material to be provided by that lawyer for the application for a permanent stay.

2. [24]

   The first judgment is only partly produced. The parties are not identified and the first sentence is incomplete. In translation, the judgment reads as follows:

3. [25]

   A translated copy of the relevant law as of 2014, which was produced by the Ministry of the Interior of the Republic of Türkiye, has been tendered into evidence by the Crown. It is titled “Law on Foreigners and International Protection”. Article 54 appears in Section 4, which is relevantly as follows:

4. [26]

   Accordingly, it would appear that the Kutahya Administrative Court was hearing an application by Mr Zakaria for a stay of execution of a decision to deport him. I note that the reference in the second paragraph of the judgment does not identify which part of Art 54(1) was the basis of the impugned deportation decision. The third paragraph presumably refers to Art 53(3), which suggests that the date of notification of Mr Zakaria of the decision to deport him was within the previous 30 days of date of the judgment, since any appeal would have had to have been heard within 30 days of that date.

5. [27]

   The second judgment, which is longer than the first, postdates Mr Zakaria’s deportation. The parties are “Masood Zikria” and “Kutahya Governorship”. Both parties were represented by attorneys, who are identified by name. The judgment commences with a section that summarises the parties’ submissions and the outcome, which is as follows.

6. [28]

   The judgment then recites the relevant parts of Arts 52, 53 and 54 (particularly 54(1)(b) and (e)), [2] as well as Art 55, which concerns exceptions to deportation, which have not been suggested to apply in this case.

7. [29]

   The judgment continues as follows:

8. [30]

   The three offences for which Mr Zakaria was wanted in Australia coincide with three of the charges in the material provided by the AFP to the Türkiyish authorities on 22 December 2022.

9. [31]

   The “decision of the Kutahya Governorship” of 4 February 2023 is described as the decision to deport Mr Zakaria. The date of notification to Mr Zakaria of that decision was clearly prior to the first judgment which, according to the relevant law (Art 53(3)), is when the 30 day period of time within which an appeal is to be lodged and determined to finality. However, the date of this decision, which purports to hear and reject the appeal, is at least eleven and a half months after notification of that decision to Mr Zakaria. Further, it is a decision that was made five weeks after his deportation which, on its face, is contrary to the relevant national law of Türkiye. Accordingly, I am satisfied that there is credible prima facie evidence that Mr Zakaria’s deportation to Australia was unlawful, according to the law of the deporting state.

10. [32]

    The Crown tendered the transcript of a bail application that was made by Mr Zakaria in the District Court on 24 March 2025. The following exchange occurred:

11. [33]

    [Redacted] For the purposes of the application to vacate, I do not place significant weight upon this submission made on his application for bail.

2. Whether the Australian authorities knew at the time that the deportation was unlawful

1. [34]

   The material produced to date by relevant authorities suggests an awareness by Australian authorities in 2023, following Mr Zakaria’s detention by Türkiyish authorities, that the two possible ways for Mr Zakaria to be returned to Australia against his will to face criminal charges were by his extradition, following a request from Australia, or by deportation. An email dated 2 February 2023 from officers of the Commonwealth Attorney-General’s Department to relevant officers of the NSWPF referred to a recent media report that the NSWPF favoured the deportation of Mr Zakaria over his extradition, because “it could be arranged sooner”. The same email is evidence that the NSWPF were put on notice that a deportation may give rise to a challenge to a subsequent prosecution if it is claimed that the Australian authorities actively encouraged a deportation or were involved in Türkiye’s deportation decision.

2. [35]

   It is unnecessary at this stage to canvass the other material that has been produced that is relevant to this issue. Having regard to that material, I am not satisfied that there is credible prima facie evidence that the Australian authorities knew at the relevant time that Mr Zakaria’s deportation was unlawful (if indeed it was unlawful). However, in determining whether the trial date should be vacated, I take into account that the process of production of material in response to various subpoenae of relevant authorities, including from the NSWPF, is incomplete and the material that has been produced thus far warrants further inquiries.

3. Whether the Australian authorities facilitated the deportation

1. [36]

   A similar observation may be made about the state of evidence at this stage of the proceedings in respect of this issue of fact.

2. [37]

   The Australian authorities obtained Mr Zakaria’s Australian passport and on 9 February 2023, forwarded it to the Türkiyish authorities for the purpose of facilitating his anticipated deportation to Australia. At that time, it was thought by the AFP that the “administrative process, including Court to have him deported/approved by the Türkiyish authorities, will take up to another 3 months”, which falls short of evidence that at that stage the Australian authorities believed at that time that Mr Zakaria would be deported in a manner that was contrary to Türkiyish law. Correspondence from within the NSWPF suggests that New South Wales authorities were still continuing to prepare for an extradition request by Australia.

3. [38]

   The request made by Türkiye in November 2023 to the AFP to consider reimbursing the cost of the air charter to bring Mr Zakaria to Australia, which it is alleged was in fact paid for by the AFP, may be evidence of the facilitation by Australian authorities of what was expected to be a deportation. However, at this stage of proceedings there is no evidence that the reimbursement decision was communicated to Türkiyish authorities prior to the deportation, that the deportation was contingent upon the promise of reimbursement or that the Australian authorities believed at that time that the deportation would be unlawful.

4. [39]

   Indeed, there is material to the effect that the AFP were informed by the relevant Türkiyish authorities that the deportation was lawful. A briefing dated 12 January 2024 noted: “On 24 November 2023, AFP Ankara were advised by PMM that Zakaria would be deported to Australia consistent with Turkish law”.

Determination

1. [40]

   I am of the view that the test to be applied to the determination of whether the trial date should be vacated is whether there is credible prima facie evidence of an abuse of process involving Mr Zakaria’s deportation. As noted, I am satisfied that there is credible prima facie evidence that Mr Zakaria’s deportation to Australia was unlawful according to Türkiyish law. I am not satisfied to the same standard that the Australian authorities knew that Mr Zakaria’s deportation was unlawful according to Türkiyish law and, it follows, that at the time they took steps to facilitate his deportation, that they knew it was unlawful. Nevertheless, in view of there being outstanding subpoenaed material from relevant agencies that may throw further light on what the Australian authorities knew or did not know at the relevant time and the time that process is taking, a vacating of the trial date in respect of Mr Zakaria is unavoidable.

2. [41]

   I note that there is a feature of the basis of the foreshadowed application for a permanent stay that differs from the facts of Moti v The Queen and which may pose a further hurdle for Mr Zakaria, which is that there was not a warrant for his arrest on those charges at the time of his deportation; he was not charged with them until five months after his deportation. It will be necessary for Mr Zakaria to demonstrate that if there was an abuse of process, it infected a trial on charges that, on the material presently before me, were not contemplated by the NSWPF at the time of his deportation.

3. [42]

   Finally, the Crown prosecutor informed the Court that if the trial date was vacated for Mr Zakaria, it would not seek to proceed on the indictment against Mr Achrafi alone. Mr Achrafi has not resisted that course.

4. [43]

   For these reasons, I was satisfied that the trial date in respect of both accused should be vacated to enable the application for a permanent stay to be heard.