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Supreme Court 14 September 2026

R v Zakaria

[2026] NSWSC 1102

Homicide
EVIDENCE PUBLIC INTEREST IMMUNITY NO ISSUE OF PRINCIPLE

Citation: R v Zakaria [2026] NSWSC 1102
Court: Supreme Court of New South Wales
Date: 14 September 2026
Judge(s): Muston J

Background

An accused charged with murder has applied for a permanent stay of his trial, contending that Commonwealth officers acted improperly or unlawfully in connection with arrangements that led to his return to Australia from Türkiye. That broader application was listed for hearing in October 2026.

In connection with the stay application, a subpoena was issued to the Commissioner of the Australian Federal Police in November 2025. The Commonwealth, represented by the AFP Commissioner and the Secretaries of DFAT, AGD, and DHA, claimed both public interest immunity (PII) and client legal privilege (CLP) over certain documents that would otherwise have been required to be produced under that subpoena.

Muston J was asked to rule on those privilege claims in advance of the stay hearing. The judge inspected the disputed documents directly, with both parties agreeing this was appropriate and that doing so would not disqualify the judge from presiding over the October hearing.

Legal Issues

  • What legal framework governs PII claims made by Commonwealth entities in criminal proceedings?
  • At what threshold must the risk of public harm be established to justify upholding a PII claim?
  • How is the public interest in disclosure weighed against the public interest in withholding documents relevant to an accused's fair trial?
  • What categories of information may properly ground a PII claim?
  • How should the court treat a claim that section 125 of the Evidence Act 1995 (NSW) defeats the AFP's CLP claims, where determining that question risks prejudging the central issues in the pending stay application?

Decision

Issue 1: Applicable legal framework for PII claims

PII claims by the AFP Commissioner were governed by section 130 of the Evidence Act 1995 (NSW) as applied by section 131A, because the Commissioner was subject to a subpoena and therefore a "disclosure requirement" within the meaning of that provision. Claims by the Secretaries of DFAT, AGD, and DHA fell to be determined under the common law rather than the Act (at [14]). For practical purposes, the court found that section 130 and the common law operate consistently, so the same broad principles applied across all claims (at [15]).

Issue 2: The three-stage PII test

The court confirmed that both section 130 and the common law require a three-stage analysis (at [16]). At the first stage, the party claiming PII need not establish that harm will result on the balance of probabilities. It is sufficient to show that harm to the public interest could arise as a matter of real possibility, because incurring a real risk of harm is itself injurious to the public interest (at [17]). At the second stage, if the information is not relevant to the issues before the court, there is no harm to the administration of justice from withholding it, and the PII claim necessarily succeeds (at [18]). The third stage, balancing competing public interests, arises only where both a public interest against disclosure and a public interest in disclosure have been established (at [20]).

Issue 3: Recognised categories of public interest and the fair trial interest

The court confirmed several established categories of information attracting PII protection: material capable of prejudicing Australia's diplomatic relationships with foreign nations (an "archetypal" PII category) (at [27]); information capable of damaging relationships with foreign partner agencies (at [29]); sensitive police methodologies, capabilities, and procedures (at [31]-[33]); and information that could prejudice ongoing or future investigations (at [34]-[35]). Where individual names were sought to be withheld, the court found the balance favoured withholding if each name was replaced with a cipher or unique identifier, preserving the accused's ability to understand the involvement of each person without knowing their identity (at [37]).

On the fair trial interest, the court noted that a fair trial does not mean a perfect trial, but "a trial as fair as the courts can make it," and that the question is whether disclosure may be of substantial assistance to the accused. A mere speculative possibility of assistance is insufficient (at [19]). The court stated expressly that it did not consider any of the PII claims upheld would handicap the accused in his stay application (at [22]).

Issue 4: Client legal privilege claims and the section 125 question

CLP claims by the AFP were assessed under section 118 as applied by section 131A. The court confirmed that for a communication to attract CLP it must be confidential, meaning it was made in circumstances where both parties were under an express or implied obligation not to disclose its contents (at [44]).

The accused argued that section 125, which defeats CLP where a communication was made to facilitate fraud or another offence, might apply to the AFP's claims. The court declined to resolve this question. Determining it would have required factual findings about alleged impropriety by the AFP in arranging the accused's return from Türkiye, which is the central issue in the October stay hearing (at [51]). Making those findings, even at the lower "reasonable grounds" threshold in section 125(2), risked creating a perception of prejudgment (at [52]-[54]). The court concluded that the section 125 question, if pressed, must be referred to a different judge (at [55]).

The court noted that a substantial number of CLP claims were not established for reasons unrelated to section 125, and it resolved those claims to narrow the scope of any further hearing before another judge (at [56]).

Orders Made

  • The court's determination of each PII and CLP claim is set out in the Schedule attached to the reasons.
  • The Schedule is published initially only to the Commonwealth entities.
  • Any Commonwealth entity wishing to make an application concerning claims not upheld (or concerning publication of the Schedule to the accused) must notify the court's associate by 4pm on Wednesday 16 September 2026.
  • The matter is listed at 9am on Thursday 17 September 2026 for any such application.
  • If no application is made, the Schedule is to be published immediately to the accused and the listing vacated.

Key Takeaways

  • Under both section 130 of the Evidence Act 1995 (NSW) and the common law, PII claims are assessed in three stages: identifying a real possibility of public harm from disclosure, assessing whether the information is relevant to the proceedings, and (if both public interests are engaged) balancing them against each other. The first stage requires only a real possibility of harm, not proof of harm on the balance of probabilities (at [16]-[17]).

  • Recognised categories of PII include diplomatic relations with foreign nations, operational relationships with foreign partner agencies, sensitive police methodologies, and the integrity of ongoing or future investigations. None of these categories is novel; the decision confirms and applies established authority across all of them (at [27]-[35]).

  • Where PII is claimed over the identity of individuals, the Supreme Court found that replacing names with ciphers or unique identifiers can resolve the tension between the public interest in withholding identities and the accused's interest in understanding the material (at [37]).

  • A court determining privilege claims in advance of a substantive stay application faces an acute prejudgment risk where the facts relevant to the privilege question overlap with the facts central to the stay. In that situation, Muston J held it was appropriate to refer the section 125 question to a different judge, even at the cost of some procedural inefficiency (at [51]-[55]).

  • The right to a fair trial does not entitle an accused to every piece of potentially relevant material. The test for disclosure in the PII balancing exercise is whether disclosure may be of substantial assistance to the accused, and a speculative possibility of assistance will not suffice (at [19]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) ss 118, 125, 130, 131A

Cases
- Alister v R (1984) 154 CLR 404; [1984] HCA 85
- Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667
- BA v Attorney-General (Cth) [2017] VSC 259; (2017) 266 A Crim R 497
- Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39
- Church of Scientology v Woodward (1982) 154 CLR 25
- Commonwealth v Northern Land Council (1993) 176 CLR 604; [1993] HCA 24
- DCL22 v Sage [2022] FCA 1310
- Derbas v R [2012] NSWCCA 14; (2012) 221 A Crim R 13
- Gypsy Jokers Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4
- Jago v District Court (1989) 168 CLR 23; [1989] HCA 46
- Kamasaee v Commonwealth (No 4) (2016) 52 VR 368; [2016] VSC 492
- Ku-ring-gai Council v West (2017) 95 NSWLR 1; [2017] NSWCA 54
- Ku-ring-gai Council v West (2017) 95 NSWLR 1; [2017] NSWCA 54
- R v Achrafi; R v Zakaria (No 2) [2026] NSWSC 166
- R v Peters [2018] VSCA 115
- Roberts-Smith v Fairfax Media Publications Pty Limited (No 14) [2021] FCA 552
- Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43
- The Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83; [2008] WASCA 34
- Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25
- Watson v AWB Ltd (No 2) [2009] FCA 1047