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Court of Criminal Appeal 6 July 2026

Zakaria v R

[2026] NSWCCA 98

HomicidePublic order & justice offences

Citation: Zakaria v R [2026] NSWCCA 98
Court: Court of Criminal Appeal, New South Wales
Date: 6 July 2026
Judges: Ward P; Sweeney J; Emmett J

Background

The applicant faces arraignment in the Supreme Court of New South Wales on charges of murdering two men at Guildford in October 2021, with alternative charges of being an accessory after the fact. He is also awaiting trial in the District Court on unrelated charges including conspiracy to murder. In December 2021, he left Australia in breach of bail conditions, was arrested in Türkiye in January 2023, and was deported back to Australia in December 2023.

The applicant issued subpoenas in mid-2025 and late 2025 to several Commonwealth agencies, including the Australian Federal Police (AFP), the Australian Border Force, the Department of Home Affairs, the Attorney-General's Department, and the NSW Police Force. The documents sought related to the circumstances of his return from Türkiye, which the applicant intends to argue constituted an abuse of process, thereby warranting a permanent stay of the prosecutions. That stay application was listed for hearing in October 2026.

The primary judge (Ierace J) ruled on public interest immunity (PII) and client legal privilege (CLP) claims made by five Commonwealth agencies over documents produced in response to the June 2025 subpoenas. His Honour also revised the terms of paragraphs 3 and 4 of the November 2025 subpoena directed to the AFP. The applicant sought leave to appeal those rulings to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW).

  • Whether the primary judge had power to reformulate (revise) the terms of a subpoena, and whether his reliance on s 130(2) of the Evidence Act 1995 (NSW) as the source of that power was an error that invalidated the decision.
  • Whether the primary judge correctly applied the principles governing legitimate forensic purpose in refining paragraphs 3 and 4 of the November 2025 subpoena.
  • Whether, in determining PII claims, there was an onus on the claiming parties to negative the availability of less restrictive measures before the court could uphold those claims.
  • Whether the primary judge's reasons were adequate in circumstances where less restrictive disclosure options had been raised.

Decision

Ground 1(a): Power to reformulate the subpoena

The primary judge relied on s 130(2) of the Evidence Act 1995 (NSW) as the source of power to revise the terms of the subpoena. The Court of Criminal Appeal found that s 130(2) does not confer any such power. However, the power to set aside a subpoena in whole or in part is available under r 33.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), and the revision achieved by his Honour was in substance equivalent to a partial setting aside. The Court noted that caution has been advocated about a "blue pencil" approach to varying subpoenas, but found that the mistaken reliance on s 130(2) did not invalidate the decision. Leave to appeal on Ground 1(a) was refused.

Ground 1(b): Procedural unfairness

This ground was not pressed at the hearing and required no determination.

Grounds 1(c) and 1(d): Legitimate forensic purpose

Leave to appeal was granted on these grounds, as they raised arguable questions about whether the primary judge correctly applied the principles relevant to legitimate forensic purpose when refining paragraphs 3 and 4 of the November 2025 subpoena. On the merits, however, the Court found that the primary judge did not err in applying the relevant principles, nor in reaching his conclusions about the scope of those paragraphs in their unrefined terms. The appeal on these grounds was accordingly dismissed.

Ground 2: Onus and less restrictive measures in PII claims

The Court refused leave to appeal on Ground 2. It held that there is no onus on a party claiming PII to negative the availability of less restrictive measures for disclosure. To the extent that an onus exists in the PII balancing exercise, it rests on the party asserting PII to establish that the public interest in confidentiality outweighs the public interest in disclosure. On the adequacy of reasons, the Court accepted that, where no restricted access order was sought, the primary judge's reasons were most naturally read as having taken into account the full range of considerations raised, even if not each was expressly addressed.

The Court also reviewed the documents over which PII was claimed. It accepted that where the claim protects an ongoing investigation or confidential police sources, the risk of inadvertent disclosure may be unacceptable. As to documents where the claim rested on the protection of international relations, the Court concluded those documents had no probative value to the permanent stay application. On the balancing exercise, the PII claims over those documents were upheld and no question of restricted access arose. Consequently, even if the error alleged in Ground 2 were established, no different outcome would follow.

Orders Made

  • Time for filing the application for leave to appeal extended to 22 May 2026.
  • Leave to appeal granted on Grounds 1(c) and 1(d) only.
  • Appeal dismissed.

Key Takeaways

  • A court does not derive power to reformulate a subpoena from s 130(2) of the Evidence Act 1995 (NSW); the power to limit production in substance arises under r 33.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), and a judge's mistaken reliance on the wrong legislative source will not necessarily invalidate an otherwise available exercise of power.
  • Where PII is claimed, there is no onus on the claiming party to demonstrate that less restrictive disclosure measures would be inadequate. The onus lies on the claiming party only to establish that the public interest in confidentiality outweighs the public interest in disclosure.
  • Documents lacking probative value to the proceedings at hand will not overcome a PII claim on the balancing exercise, regardless of whether a restricted access regime might theoretically be available.
  • In dismissing the appeal, the Court confirmed that adequate reasons do not require a judge to address every argument raised, particularly where no restricted access order was sought and the reasons can reasonably be read as encompassing the considerations placed before the court.
  • Interlocutory rulings on subpoenas in criminal proceedings remain susceptible to appeal under s 5F of the Criminal Appeal Act 1912 (NSW), but leave will be confined to grounds that identify a real arguable error in the application of the relevant principles.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), s 130
- Uniform Civil Procedure Rules 2005 (NSW), r 33.4

Cases
- AIX20 v Director-General of Security (No 2) [2024] FCA 1130
- Allchin v Hunter Water Corporation (2025) 118 NSWLR 479; [2025] NSWCA 253
- Director of Public Prosecutions (Vic) v Debono [2012] VSC 476; (2012) 225 A Crim R 585
- Fuller v Albert (No 2) [2021] NSWCA 183
- GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Licha v Joseph [2025] NSWCA 192
- Madafferi v R [2021] VSCA 1; (2021) 287 A Crim R 380
- Moore (a pseudonym) v The King (2024) 282 CLR 460; [2024] HCA 30
- Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50
- R v Achrafi; R v Zakaria (No 2) [2026] NSWSC 166
- R v Achrafi; Zakaria (No 1) [2025] NSWSC 1061
- *R v Alq