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Supreme Court 14 October 2026

R v Zakaria (No 2)

[2026] NSWSC 1279

Public order & justice offences
CRIMINAL PROCEDURE PARTIES INTERVENERS LEAVE NOT GRANTED

Citation: R v Zakaria (No 2) [2026] NSWSC 1279
Court: Supreme Court of New South Wales
Date: 14 October 2026
Judge(s): Muston J

Background

The accused faces criminal proceedings and has applied for a permanent stay. The grounds of that application centre on allegations of serious misconduct or unlawfulness by Commonwealth officers and agencies in connection with the accused's return to Australia.

By a notice of motion filed on 25 September 2026, the Attorney-General of the Commonwealth sought leave to intervene in the hearing of the permanent stay application, which was fixed to commence on 19 October 2026. The urgency of the Attorney-General's own application required it to be determined in short order.

The accused opposed intervention. The Crown supported it in principle but subject to two conditions. The Attorney-General did not claim any right to intervene as of right, so the application turned entirely on whether the Court had power to permit intervention and, if so, whether it was appropriate to exercise that power in the circumstances.

Legal Issues

  • Whether the Supreme Court has inherent power to permit a third party to intervene in first instance criminal proceedings.
  • Whether the Attorney-General of the Commonwealth has a sufficient legal interest in the accused's permanent stay application to justify intervention.
  • Whether permitting intervention would assist the Court in effectively and efficiently resolving the issues in the permanent stay application.
  • Whether permitting intervention would expose the accused to the unfairness of being confronted by, in effect, two opposing parties.

Decision

Issue 1: Power to permit intervention in first instance criminal proceedings

No party could identify any precedent for a third party intervening in a first instance criminal trial. The authorities relied on by the Attorney-General all concerned civil proceedings. The High Court in Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325 signalled significant caution about intervention in criminal proceedings, observing that the binary structure of such proceedings, with the Crown and the accused as the only parties, reflects deep-rooted principle. Despite the absence of precedent, Muston J was satisfied that the Court's inherent power extends to permitting a confined intervention of the type proposed, if the circumstances genuinely warranted it (at [29]). However, the nature of criminal proceedings means that the circumstances in which it would be appropriate to exercise that power are extremely rare (at [30]).

Issue 2: The Commonwealth's interest

The Court accepted that the Commonwealth has some interest in the issues raised by the stay application, and that the interest is at least potentially more than merely reputational (at [42]). The Attorney-General pointed to constitutional questions about Commonwealth prerogative and statutory powers in relation to foreign states, and to the direct involvement of Commonwealth officers whose conduct is at the heart of the stay application. The accused argued that no true legal interest had been identified, only a reputational one, and that questions of Australian and foreign law are routinely handled by state courts and parties without third-party intervention (at [36]-[39]).

Issue 3: Whether intervention would assist the Court

The Court was not satisfied that it would be significantly assisted by permitting the Attorney-General to intervene or appear as amicus curiae (at [43]). The interests of the Commonwealth and the Crown on the relevant issues appeared to be wholly aligned, and neither side suggested otherwise (at [44]). The deep knowledge held by Commonwealth officers and agencies could be shared with the Crown cooperatively without requiring formal intervention, and the Court was satisfied that such cooperation would be forthcoming (at [45]).

Issue 4: Unfairness of two opposing parties

The Court expressed concern that permitting intervention would effectively confront the accused with two adversaries. Even where every effort was made to avoid overlap, the accused would face two parties whose forensic approaches might differ, at least subtly (at [48]). Intervention would also increase hearing time and costs (at [46]), and the question of whether and how the Attorney-General would be bound by prosecutorial disclosure obligations was not straightforward (at [47]). Taken together, these considerations told against granting leave (at [49]).

Orders Made

  • Leave for the Attorney-General of the Commonwealth to intervene in the proceedings is refused.
  • The parties are directed to provide to the solicitors for the Attorney-General all evidence they intend to rely on, including any proposed tender bundle, a copy of any proposed agreed facts, and all written submissions, on the basis that those documents are received subject to the same restrictions that would apply had the Attorney-General been a party to the proceedings.
  • The notice of motion dated 25 September 2026 is otherwise dismissed.

Key Takeaways

  • Although there is no precedent for a third party intervening in first instance criminal proceedings, the Supreme Court held that its inherent power is capable of extending to a confined intervention of that type, though the circumstances in which it would be appropriate to exercise that power are extremely rare (at [29]-[30]).

  • A government intervener's application will be scrutinised closely where its interests are wholly aligned with those of the prosecuting authority: alignment of that kind reduces the benefit of intervention to the Court while increasing the risk of unfairness to the accused (at [44]).

  • Refusing intervention does not leave the Commonwealth without any foothold in the proceedings. The Court ordered the parties to provide the Attorney-General's solicitors with all evidence and written submissions, subject to restrictions equivalent to those that would apply to a party, to enable the Commonwealth to prepare for any public interest immunity claims that might arise (at [52]-[53]).

  • Where Commonwealth knowledge and expertise can be shared cooperatively with the Crown, the absence of formal intervention does not prevent that material from informing the Crown's conduct of the proceedings (at [45]).

  • The prospect of an accused being confronted by two adversaries in criminal proceedings, even if their approaches differ only subtly, carries a real potential for unfairness and should be avoided unless the circumstances clearly justify it (at [48]).

Legislation and Cases Referenced

Legislation
- Supreme Court Act 1970 (NSW), s 23

Cases
- Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391
- Karim v R; Magaming v R; Bin Lahaiya v R; Bayu v R; Alomalu v R (2013) 83 NSWLR 268; [2013] NSWCCA 23
- Levy v State of Victoria (1997) 189 CLR 579; [1997] HCA 31
- Marium v Registrar, Local Court Blacktown [2022] NSWSC 528
- Markisic v Magistrate David Heilpern [2011] NSWSC 410
- National Australia Bank Ltd v Hokit Pty Ltd (1996) 39 NSWLR 377
- P&C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366
- Palmer v Western Australia [2018] WASCA 225
- Peers v Bennett [2026] NSWSC 536
- R v Achrafi; R v Zakaria (No 2) [2026] NSWSC 166
- R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177; [1965] HCA 27
- R v GJ (2005) 196 FLR 233; [2005] NTCCA 20
- R v Zakaria [2026] NSWSC 1102
- Roadshow Films Pty Ltd v iiNet Ltd (No 1) (2011) 248 CLR 37; [2011] HCA 54
- Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53
- Yan Xie v Chen Shaoji [2008] NSWSC 224