AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 6 March 2026

R v Achrafi; R v Zakaria (No 2)

[2026] NSWSC 166

Public order & justice offences
CLIENT LEGAL PRIVILEGE LEGITIMATE FORENSIC PURPOSE

Citation: [2026] NSWSC 166
Court: Supreme Court of New South Wales — Common Law Division
Date: 6 March 2026
Judge(s): Ierace J

Background

Two accused persons, Zakaria and Achrafi, were arraigned in the Supreme Court on charges of murder (and, in the alternative, being accessories after the fact to murder) arising from the deaths of two men at Guildford in October 2021. A joint trial was originally fixed for September 2025.

The proceedings took a procedural turn when Zakaria sought to vacate the trial date to prepare an application for a permanent stay of proceedings, alleging an abuse of process by Australian authorities in connection with his deportation from Türkiye to Australia. Zakaria had absconded overseas in December 2021 while on bail for an unrelated matter, was arrested in Türkiye in January 2023, held in immigration detention by Turkish authorities, and was deported to Australia in approximately December 2023. He was subsequently charged with the present murder offences in May 2024. In September 2025, Ierace J acceded to the application to vacate the trial date: R v Achrafi; R v Zakaria (No 1) [2025] NSWSC 1061.

Through his solicitor, Zakaria then issued six subpoenas directed at various State and Commonwealth agencies seeking documents relating to his international travel, detention, deportation, and extradition — material intended to support the abuse of process application. Five subpoenas were filed in June 2025, directed at the AFP, Australian Border Force (within the Department of Home Affairs), the Attorney-General's Department, and NSW Police Force. A sixth was filed in November 2025, directed at the AFP, seeking broader categories of material including training records, comparative deportation cases, AFP policy documents, and records about gifts. Multiple agencies — including the AFP, DHA, AGD, DFAT, ACIC, NSW Police Force, and the NSW Crime Commission — opposed production of all or part of responsive material on grounds of public interest immunity (PII) and/or client legal privilege (CLP). The AFP additionally challenged the November 2025 subpoena on grounds of legitimate forensic purpose and oppression.

  • Whether claims of public interest immunity (PII) made by Commonwealth and State agencies should be upheld over documents responsive to the June 2025 subpoenas, and if so, over which documents or parts thereof.
  • Whether claims of client legal privilege (CLP) made by the AFP Commissioner should be upheld over 24 documents or parts thereof produced in response to the June 2025 subpoenas.
  • Whether the November 2025 subpoena issued to the AFP should be set aside for lack of a legitimate forensic purpose and/or on grounds of oppression.
  • What procedures should be adopted for the Court's inspection of documents over which privilege or immunity was claimed, including the conduct of a closed hearing session.
  • How to balance the public interest in non-disclosure (protecting national security, international relations, law enforcement methodologies, and confidential informant identities) against the accused's interest in having access to material relevant to the proposed abuse of process application.

Decision

The judgment is a detailed interlocutory ruling addressing the competing claims over a large volume of material. Due to the truncation of the full text, the following summarises the reasoning and approach evident from the available portions.

PII claims — General approach: Ierace J carefully considered the PII claims brought by multiple agencies. The Court received both open and confidential affidavit evidence from senior officials at the AFP, ABF/DHA, AGD, ACIC, DFAT, NSW Police, and the NSW Crime Commission. These officials deposed to the potential harms of disclosure, including damage to Australia's international relations, national security, law enforcement methodologies, and the safety of individuals. Consistent with established authority (including Sankey v Whitlam and Alister v The Queen), the Court undertook its own inspection of the documents to weigh the competing interests — the public interest in non-disclosure against the accused's interest in accessing material relevant to the abuse of process application.

Closed court session: The hearing included approximately one hour in closed court, from which Zakaria and his legal representatives were excluded. This reflects the inherently sensitive nature of PII determinations, where disclosing even the reasons for withholding material may itself cause the harm sought to be avoided. The Court appears to have followed a procedure consistent with established practice, including consideration of the principles in R v Taleb and Commissioner of Police v Attorney General for NSW.

CLP claims: The AFP Commissioner also sought to withhold parts or all of 24 documents on the basis of client legal privilege under ss 118 and 131A of the Evidence Act 1995 (NSW). The Court examined whether the communications were made for the dominant purpose of providing legal advice or in connection with anticipated litigation, and whether any applicable waiver had occurred.

November 2025 subpoena — Legitimate forensic purpose and oppression: The AFP challenged the sixth subpoena on two grounds. First, it argued that the categories of documents sought — which included training materials, comparative deportation cases involving other individuals, AFP policy and strategy documents, and records about gifts — lacked a legitimate forensic purpose connected to the abuse of process application. Second, it argued the subpoena was oppressive in its breadth. The Court assessed these objections against principles from Attorney General for NSW v Chidgey and Commissioner for Railways v Small, evaluating whether the material sought could rationally affect the assessment of the probability of a fact in issue in the proposed stay application.

The available text indicates that the Court undertook a granular, document-by-document (or category-by-category) analysis. Given the breadth of the claims — spanning over 200 documents for PII alone from the AFP, plus additional documents from other agencies — the ruling likely involved upholding some claims, rejecting others, and potentially requiring redacted production of certain documents.

Orders Made

Because the full text of the judgment was truncated, the precise orders cannot be confirmed from the available material. Based on the structure of the decision, the orders likely included a combination of the following:

  • Upholding PII claims in respect of certain documents or parts of documents, excusing relevant agencies from producing those materials.
  • Rejecting PII claims over other documents, requiring their production (potentially in redacted form).
  • Upholding CLP claims over some or all of the 24 documents identified by the AFP Commissioner.
  • Orders either setting aside, narrowing, or upholding the November 2025 subpoena, depending on the Court's assessment of legitimate forensic purpose and oppression.
  • Directions concerning the handling, storage, and access arrangements for any sensitive material ordered to be produced.

Practitioners should consult the full judgment for the specific orders made.

Key Takeaways

  • Ierace J in the Supreme Court undertook a meticulous, document-by-document review when multiple agencies asserted public interest immunity over a large volume of material, rather than accepting blanket claims, illustrating that granular assessment is required and that agencies must justify their claims at a high level of specificity.

  • Where an abuse of process application is founded on alleged governmental misconduct involving deportation from a foreign jurisdiction, the resulting disclosure disputes can span multiple agencies and involve sensitive international relations, national security, and law enforcement material, leading to protracted interlocutory proceedings.

  • Closed sessions excluding the accused and their representatives for certain PII determinations, while exceptional, were confirmed as an accepted feature of PII adjudication consistent with authority including R v Taleb.

  • In scrutinising a November 2025 subpoena, the Court held that subpoenas in criminal proceedings must identify material with a sufficient connection to a fact in issue, and that broad requests for training manuals, comparative case materials, and policy documents may fail where the connection to the specific issues in the case is indirect.

  • Government agencies in criminal proceedings cannot simply assert client legal privilege without providing sufficient evidence that the dominant purpose of the relevant communications attracted the privilege claimed, a principle the Court rigorously applied in examining the AFP's claims.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), Part 3.10, ss 118, 130, 131A, 133, 136

Key Cases:
- Sankey v Whitlam (1978) 142 CLR 1
- Alister v The Queen (1983–84