Background
Masood Zakaria faces trial in the NSW Supreme Court for the October 2021 murders of Salim and Toufic Hamze at Guildford, with alternative accessory charges. He also faces conspiracy to murder charges in the District Court. In December 2021, Zakaria fled Australia in breach of bail. He was arrested in Turkey on 29 January 2023 and deported to Australia on 4 December 2023, then charged with the murder offences in May 2024. Zakaria has applied for a permanent stay of prosecution, contending that Australian law enforcement involvement in his deportation from Turkey—particularly the use of private contractors and alleged circumvention of extradition procedures—constitutes abuse of process.
Zakaria issued subpoenas in June and November 2025 to the Australian Federal Police, Department of Home Affairs, Attorney-General’s Department, and NSW Police seeking documents about his return from Turkey and those of four other individuals (AB, Guy Habkouk, Tony Haddad, and XY) deported from Turkey during the same period. The AFP challenged paragraphs 3 and 4 of the November subpoena as lacking legitimate forensic purpose. The Commonwealth and State agencies claimed public interest immunity and client legal privilege over various documents. The primary judge (Ierace J) found legitimate forensic purpose existed but revised the subpoena terms to limit requests to the lawfulness of removal under Turkish law only, and upheld some but not all privilege claims. Zakaria appealed.
The Court’s Holding
The Court of Criminal Appeal (Ward P, Sweeney J, Emmett J) extended time and granted leave to appeal only on two specific grounds, dismissing the appeal on those grounds and refusing leave on others. On the statutory power issue, the court held that section 130(2) of the Evidence Act 1995 (NSW) does not confer power to reformulate subpoena terms; however, the court has power under rule 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) to set aside subpoenas in whole or part, and the primary judge’s mistaken reliance on the Evidence Act did not invalidate his decision to limit production.
On the substantive issue of legitimate forensic purpose, the court upheld the primary judge’s conclusion that paragraphs 3 and 4 in their original (unrevised) terms lacked sufficient forensic purpose. The court found no error in the primary judge’s application of the relevant principles for determining legitimate forensic purpose in the context of a permanent stay application. Zakaria argued the comparative deportation cases were probative to his abuse of process claim, but the court found the primary judge’s reasoning sound. On the public interest immunity claims, the court refused leave to appeal Ground 2, holding there is no onus on Commonwealth or State entities to demonstrate why less restrictive disclosure measures should not be adopted. The court reviewed documents claimed to protect international relations and found them to lack probative value to Zakaria’s stay application, thus upholding the PII claims.
Key Takeaways
- Courts possess power under civil procedure rules to reformulate subpoena scope through partial setting aside, though caution should be exercised with “blue pencil” approaches to subpoena variation.
- The threshold for establishing “legitimate forensic purpose” in criminal stay applications requires more than mere speculation; there must be a reasonable basis that requested documents will shed light on key issues, not merely peripheral inquiries.
- No burden rests on public interest immunity claimants to negative alternative, less restrictive disclosure measures; the balancing exercise between procedural fairness and legitimate immunity claims lies with the court.
- Comparative deportation cases, while potentially relevant to establish systemic practices, must demonstrate clear connection to the specific abuse of process allegations to satisfy legitimate forensic purpose requirements.
Why It Matters
This decision clarifies important procedural boundaries in criminal discovery disputes, particularly where accused persons seek documents to support serious allegations of state misconduct in the form of abuse of process. While the court confirmed that some relevance existed in comparative deportation materials—suggesting Zakaria’s ultimate stay application arguments retain viability—it reinforced that subpoena scope must be tailored to demonstrable forensic utility rather than open-ended exploratory discovery. The decision also affirms that public interest immunity remains a robust protection even in the context of criminal proceedings where an accused alleges governmental wrongdoing, and that courts will not impose a burden on immunity claimants to prove less restrictive alternatives when the court’s own balancing exercise favors non-disclosure.
The ruling is significant for criminal procedure in Australia: it limits the ability of accused persons to use comparative cases and hypothetical scenarios as a blanket basis for expansive discovery, while recognizing that genuine concerns about law enforcement misconduct warrant careful judicial scrutiny of immunity claims. The court’s approach to subpoena revision and forensic purpose determination will likely inform future stay applications and discovery disputes in high-profile criminal cases.