DPP v Kheyali & Abdalla (PII and LPP Ruling) [2026] VSC 414 (26 June 2026)

All Databases Cases & Legislation Journals & Scholarship Law Reform Treaties Libraries Communities LawCite Australia CTH ACT NSW NT QLD SA TAS VIC WA New Zealand Specific YearAny Any Any DPP v Kheyali & Abdalla (PII and LPP Ruling) [2026] VSC 414 (26 June 2026) Last Updated: 29 June 2026 IN THE SUPREME COURT OF VICTORIA Not Restricted CRIMINAL DIVISION S ECR 2025 0311 S ECR 2025 0312 BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS Crown v ADRIS KHEYALI Accused -and- ABDULLAY ABDALLA Accused --- JUDICIAL REGISTRAR: McCann JR WHERE HELD: Melbourne DATES OF HEARING: 11–12 June 2026 DATE OF RULING: 25 June 2026 (revised 26 June 2026) CASE MAY BE CITED AS: DPP v Kheyali & Abdalla (PII and LPP Ruling) MEDIUM NEUTRAL CITATION: [2026] VSC 414 --- CRIMINAL LAW – Where Chief Commissioner of Victoria Police makes claim of public interest immunity and legal professional privilege in respect of materials he assesses to be otherwise disclosable to accused – Where the determination of the claims governed by the common law rather than provisions of the Evidence Act 2008 – Where claims of public interest immunity were accepted or otherwise conceded – Where claim of legal professional privilege made over a portion of a document – Held that communication in issue is not legally privileged – Claim of public interest immunity upheld and claim of client legal professional privilege not upheld. --- APPEARANCES: Counsel Solicitors For the Director of Public Prosecutions Mr John Dickie with Mr G Buchhorn The Office of Public Prosecutions For Mr Adris Kheyali Mr G Casement with Ms L Andrews Slades & Parsons Criminal Lawyers For Mr Abdullay Abdalla Ms S E Lacy SC with Ms B Proud One Group Legal For the Chief Commissioner of Police Ms S Flynn KC Victorian Government Solicitor’s Office Contents JUDICIAL REGISTRAR: Background – the application On 14 November 2025, the accused men Adris Kheyali (‘Kheyali’) and Abdullay Abdalla (‘Abdalla’) were committed to stand trial charged with the murder of Mohammad Akbar Keshtiar (‘the deceased’) and conduct endangering the life of Perry O’Hehir‑Vargas. The date of the alleged offending was 4 August 2023. The Chief Commissioner of Victoria Police (‘the Chief Commissioner’) has brought a claim of public interest immunity and legal professional privilege in respect of materials he assesses to be otherwise disclosable to the accused. In making an assessment of those claims, I have had regard to the following documents relied upon by the Chief Commissioner: (*Redacted) (c) Open Affidavit of Luke Brendan Farrell dated 15 May 2026; (*Redacted) (f) Open Affidavit of Luke James Collyer dated 29 May 2026; (*Redacted) (i) Open Outline of Submissions of Chief Commissioner of Police dated 29 May 2026; (j) Confidential Outline of Submissions of the Chief Commissioner of Police dated 29 May 2026; and (k) Open Submissions on behalf of the Chief Commissioner dated 10 June 2026. I have also had regard to the following documents filed on behalf of the accused: (a) Open Submissions on behalf of Adris Kheyali dated 9 June 2026; and (b) Open Submissions on behalf of Abdullay Abdalla dated 9 June 2026. On 11 June 2026, counsel for the accused made brief oral submissions. The consideration of the oral and written submissions of the Chief Commissioner and the disclosure material then occurred in closed session. The Director of Public Prosecutions has not sought to file any documents in respect of the Chief Commissioner’s claims. In assessing the Chief Commissioner’s claims, I have also had regard to the documents that currently comprise the hand‑up brief. The case that is brought against the accused men is relevant to an assessment of the interests that are in balance in the disclosure material. The following is a summary of the case that is alleged. It is drawn from the summary contained in that hand‑up brief. Summary of the case brought by the prosecution On 4 August 2023 at 11:36pm, Mohammad Keshtiar was shot and killed whilst walking with Perry O’Hehir‑Vargas in Almeida Crescent, South Yarra. It is the prosecution case that both Abdalla and Kheyali are members of the Aschna criminal syndicate. It is also part of the prosecution case that the deceased was known by the moniker ‘Afghan Ali’ and was a member of a rival criminal syndicate. On the evening of 4 August 2023, the accused Abdalla drove in a stolen grey coloured Toyota Prado SUV (‘the Prado’) from Hampton Park where he picked up the accused Kheyali. The accused men had with them two Google Pixel devices or phones, balaclavas, gloves, spare clothing and two handguns. It is the prosecution case that the accused men planned and were equipped to find and attack another of their criminal rivals, not the deceased. They travelled in the Prado to South Yarra for this purpose. On Chapel Street, the accused men happened to locate the deceased. Having located the deceased, Abdalla drove the Prado along Chapel Street, South Yarra, turned into Almeida Crescent and, as the Prado approached the deceased and O’Hehir‑Vargas, Abdalla slowed the car and Kheyali fired shots at the deceased out of a rear passenger window. The deceased was struck by some of the gunshots and fell to the ground. Abdalla stopped the Prado and Kheyali got out of the car, approached the deceased and fired more shots at him, some of which hit the deceased. Kheyali then ran and got back into the Prado which was then driven away by Abdalla at high speed. After panicking and running from the scene, O’Hehir‑Vargas returned and attempted to assist the deceased with first aid. Emergency services attended and took the deceased to the Alfred Hospital where he died a short time later. Abdalla drove the Prado from the scene of the shooting along the Monash Freeway toward the south eastern suburbs of Melbourne. Via Google Pixel devices, including those held by the accused men, there was communication between Salim Aschna and other members of the syndicate including ‘Witness O’. Witness O was tasked to assist in the plan to burn the Prado and destroy other evidence. Witness O met with Abdalla and Kheyali in Narre Warren, received from them two hand guns and clothing to be destroyed and drove with Abdalla and Kheyali away from Narre Warren and the Prado. Witness O later returned to the Prado and drove it to Endeavour Hills where he doused it with petrol and set it alight. On 26 June 2024, Witness O and three others were intercepted in a car in Hallam. A search of the car located a firearm alleged to be the firearm involved in the shooting of the deceased. On 16 September 2024, Abdalla was arrested in relation to murder and other unrelated matters. On 25 September 2024, Kheyali was arrested and interviewed in relation to the murder of the deceased. Witness O provided three statements to police between 9 January 2025 and 12 June 2025 in relation to his involvement following the murder. In these statements, Witness O also recounts admissions made to him by both Abdalla and Kheyali. On 11 February 2026, a statement was made by another member of the Aschna syndicate, Witness R. Central to the prosecution’s case against the accused are; (a) the statement of Perry O’Hehir‑Vargas; (b) evidence of communications from and the locations of the Google Pixel phones; and (c) the statements of Witness O and Witness R. Where the matter sits in its progress to trial Following the charges against the accused being committed to this Court, they each made application pursuant to s 198B of the Criminal Procedure Act 2009 to cross examine witnesses including Witnesses O and R. Leave has been granted for that pre‑trial cross‑examination, however, at this time, cross examination of Witnesses O and R has not occurred. These examinations are listed for a fixture in August 2026. The Chief Commissioner’s Claim The Chief Commissioner has identified a large amount of material, approximately (*Redacted) pages, he assesses to be disclosable to the accused. Principle on disclosure The informant, the Chief Commissioner and the prosecution are under a duty to disclose all relevant material. That duty has been described as a ‘golden rule’; it is an obligation owed to the Court rather than to the accused.[1] Relevant evidence is defined in s 55 of the Evidence Act 2008 as ‘evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.’ It is a definition that is intentionally broad. In the context of a criminal prosecution, it is inclusive of exculpatory and inculpatory evidence. It has been observed that it need not be shown that the evidence would actually affect the relevant probability, merely that it be reasonably capable of doing so.[2] The materials The Chief Commissioner has presented to the Court all of those documents he assesses as meeting this test of relevance, but are subject to a claim of public interest immunity. Those documents are redacted in places to conceal material he considers irrelevant in this case. He has also redacted those documents to conceal material he assesses as relevant, but over which he makes a claim of public interest immunity. This represents the larger proportion of redactions. A smaller number of redactions are also made to conceal information the Chief Commissioner submits to be subject to legal professional privilege. The documents have been annexed to affidavits both confidential and open. The redactions applied to information contained in the documents are colour coded. In the open affidavits, the coding allows the reader to distinguish between redactions applied on the basis of relevance, public interest immunity and legal professional privilege. There is no colour distinction between different heads of public interest immunity in the open material. In the confidential affidavits, the material is colour coded to indicate, not only relevance redactions, but also the differing heads of public interest immunity. Public interest immunity has been claimed in respect of the following categories of interest for protection: (a) Safety of a person; (b) Community source; (c) Police methodology; (d) Ongoing investigation; and (e) Third party agency. In respect of each of these claims, the confidential affidavit exhibits documents with redactions represented by outlines only in colours coded for each of these categories. The process for consideration As already noted, the parties were provided with open material relied upon by the Chief Commissioner. The open materials set out the principle relied upon by the Chief Commissioner for their claims and some high‑level information about the nature of the claims made in this case. The parties were given the opportunity to make submissions, both written and oral ahead of the confidential submissions and the subject material being considered by the Court in closed session. The option of the Court proceeding with the assistance of a contradictor was considered on the first day of the hearing and was declined. Reasons for that ruling were delivered ex tempore on the day. The Chief Commissioner made submissions in respect of legal principle broadly, as did each of the accused. Counsel for both accused also provided brief submissions about the issues that they raise, or will raise, in their defence. Issues of the identity of Witnesses O and R were resolved during the open hearing, as was the availability of evidence about the alleged ownership or possession of each of the Google Pixel devices at the relevant time. The Chief Commissioner made further submissions in respect of the principle that sat behind each of the categories of redaction. I will summarise the positions on principle briefly before moving to consider the claims the Chief Commissioner makes in respect of relevance and each of the claims of public interest immunity. I will consider principle in respect of legal professional privilege separately before considering its application to the material that remains the subject of that claim. Legal Principle The test for public interest immunity The Chief Commissioner submits that the law governing the determination of their claim in this case is the common law rather than provisions s 130 and s 131A of the Evidence Act. This is because the material over which they seek immunity is not produced pursuant to a ‘disclosure requirement’ as he understands that term to be defined in s 131A. Section 131A(2) of the Evidence Act states that a ‘disclosure requirement’ ‘means a process or order of a court that requires the disclosure of information or a document.’[3] The limitation is to a curial process. This was Beale J’s interpretation in DPP v Rider & Ong.[4] His Honour found in that case that the Chief Commissioner’s common law disclosure obligations did not amount to a ‘disclosure requirement’, as that term is defined in s 131A of the Evidence Act. It was not disclosure required by a process of the Court. According to the relevant explanatory memorandum, s 131A was included in the Evidence Act to expand the scope of the privileges in that Act, so that they applied to ‘any process or order of a court which require[d] disclosure as part of preliminary proceedings’.[5] Section 131A implemented recommendation 14‑1 of the 2005 Australin Law Reform Commission ‘Uniform Law Report’. That recommendation sought to address issues arising after Esso v Commissioner of Taxation,[6] whereby in the one proceeding ‘dual regimes’ applied: the uniform evidence legislation applied to the admissibility of evidence of privileged communications and information, but the common law applied in all other contexts.[7] Ultimately, the explanatory memorandum makes clear that s 131A is applicable to curial processes only. Beale J’s ruling DPP v Rider & Ong[8] predates the enactment of s 415A and s 416A but not of s 416 of the Criminal Procedure Act 2009 and the statutory articulation in that provision of the Director of Public Prosecution’s duty of disclosure.[9] Section 415A details an informant’s obligation of disclosure to the Director of Public Prosecutions and provides: Informant’s obligation of disclosure to the DPP (1) This section applies to an informant in a proceeding conducted by the DPP. (2) The informant must provide to the DPP any information, document or thing, that is in the possession of, or is known by, the informant or the law enforcement agency represented by the informant, that is relevant to the alleged offence other than any information, document or thing that is the subject of— (a) a claim of privilege or public interest immunity; or (b) immunity conferred by statute; or (c) a prohibition or restriction provided by statute that has the effect of precluding disclosure to the DPP. (3) The informant must notify the DPP of the existence and nature of— (a) any information, document or thing, that is in the possession of, or is known by, the informant or the law enforcement agency represented by the informant, that is relevant to the alleged offence and that is the subject of— (i) a claim of privilege or public interest immunity; or (ii) immunity conferred by statute; or (iii) a prohibition or restriction provided by statute that has the effect of precluding disclosure to the DPP; and (b) the privilege, immunity, prohibition or restriction to which that information, document or thing is subject. (4) The informant must comply with subsections (2) and (3) as soon as practicable after— (a) the DPP assumes conduct of the proceeding for the prosecution; and (b) any additional information, document or thing that is relevant to the alleged offence comes into the possession, or comes to the notice, of the informant or the law enforcement agency represented by the informant, after the informant first complied with subsections (2) and (3). (5) The informant must provide to the DPP any information, document or thing referred to in subsection (3) if requested by the DPP. (6) For the purposes of subsections (2) and (5)— (a) the duty to provide any information, document or thing may be satisfied by providing— (i) a copy of any document; or (ii) a clear photograph, or clear copy of such a photograph, of any thing; and (b) the informant must make available for inspection by the DPP any information, document or thing referred to in subsection (2) or (3) if requested by the DPP. (7) The informant must comply with subsection (5) or (6)(b) as soon as practicable after the DPP makes the request. (8) This section does not limit or otherwise affect the operation of a provision made by or under any other Act, including an Act of the Commonwealth, that prohibits or restricts, or that authorises a court or tribunal to prohibit or restrict, the disclosure of information for or in connection with any proceeding. (9) If any information, document or thing to which subsections (3) and (5) apply is the subject of a prohibition or restriction of a kind referred to in subsection (8), the informant must comply with subsections (3) and (5) to the extent permitted by that prohibition or restriction. Section 416A of the Criminal Procedure Act provides the following process for an application for non‑disclosure order: Application for Non-Disclosure Order (1) At any stage in a proceeding under this Act, a person may apply for a non-disclosure order if the person— (a) is a party to the proceeding; or (b) is a law enforcement officer or law enforcement agency that is in possession of, or that knows of, any information, document or thing relevant to the alleged offence; or (c) is a law enforcement officer or law enforcement agency that is prohibited or restricted by statute from disclosing any information, document or thing relevant to the alleged offence; or (d) is a person with a direct or special interest in the making of any order or other decision under subsection (3). (2) In exceptional cases, an application for a non-disclosure order may be made without giving notice to the accused. (3) The court may make any order or other decision that it has the power to make, that has the effect of excusing or preventing the disclosure of information relevant to the alleged offence. (4) Nothing in this section— (a) limits the power of the court to make any order or other decision that it has power to make with respect to the disclosure of information, documents or things; or (b) limits or otherwise affects the operation of a provision made by or under any other Act, including an Act of the Commonwealth, that prohibits or restricts, or that authorises a court or tribunal to prohibit or restrict, the disclosure of information for or in connection with any proceeding. (5) The making of a non-disclosure order does not affect or limit the prosecution's duty of disclosure under this Act or any other law to disclose any information, document or thing— (a) that— (i) comes into the prosecution's possession or comes to the prosecution's notice after the order is made; or (ii) becomes relevant to an issue in the proceeding that arose after the order is made; and (b) that is relevant to an application for, or to review of, a non-disclosure order. It has been repeatedly observed, including by Beale J in DPP v Rider and Ong with reference to Ryan v the State of Victoria, that the differences between the common law and the statutory provisions are of no practical significance.[10] The Chief Commissioner pleaded his case in common law. The accused have referenced the Evidence Act in their submissions but conceded that there were no issues taken with the applicable principle, nor has any issue been taken with the form in which the Chief Commissioner has made his claim or the form of order he seeks. Given this, it is unnecessary to dwell on whether the Chief Commissioner’s obligation at common law is now an explicit requirement in the Criminal Procedure Act that therefore amounts to a ‘disclosure requirement’ for the purposes of s 131A of the Evidence Act. It is also unnecessary to explore any further whether, in circumstances where the Chief Commissioner seeks to be excused from his disclosure obligation, the appropriate course to be taken is an application for a non‑disclosure order pursuant to s 416A of the Criminal Procedure Act. In respect of the applicable principle, what can be drawn from the authorities decided pursuant to the common law, as well as the provisions of the Evidence Act, is that the public interest in the administration of justice requires that a party have access to evidence that is relevant to the issues in their case. It is relevance that is to be balanced against any harm that might be caused by the release of the information the subject of the claim.[11] In the balance exercise is the potential significance of the relevant information to the accused. This is discerned from the prosecution case brought against them. It is also described by them in their submissions and highlighted in the issues they raise in their s 198B applications. It is this that is weighed against the public interest in maintaining confidentiality of said information. The Chief Commissioner provided further detail on principle they relied up on in support of (*Redacted) categories of public interest sought to be protected by their claim. Noting that the High Court has stated that the categories of public interest that might attract a claim such as this are not closed,[12] I will nonetheless touch briefly upon principle under each of the categories nominated. Community sources This category describes members of the public providing information to police on a confidential basis. The Chief Commissioner seeks to exclude from disclosure information that would identify these sources of information. The justification for doing so is not simply to maintain the confidence pursuant to which the information was given, it is also to protect the source and maintain confidence in this channel of information and thereby ensure the flow of information through that channel into the future. This necessity has been considered in the context of registered informers.[13] The Chief Commissioner relies upon authorities from the United Kingdom for the proposition that these considerations extend to the ‘public spirited citizens’ who become community sources.[14] As noted above, the categories of information that might be withheld are not closed and many of the cases do not draw any distinction between a registered informer and any other kind of confidential informer, referred to by the Chief Commissioner here as a ‘community source’. The description given for the test for the disclosure of the identity of an informer has varied but the substance of it is the same across a number of authorities.[15] A distillation from those authorities is that, before the identity of a confidential informer or the source of confidential information would be released, it must be shown in the balance that the revelation would be of substantial assistance. Police methodology The Chief Commissioner cited a number of cases decided in respect of a claim arising from the protection of police methodology. It is clear from them that it has indeed been raised as category of public interest. The issues to be determined have differed as between cases and the outcomes have varied accordingly.[16] It is clear that it is a category into which public interest claims have previously been grouped. Safety of persons The safety of persons is said by the Chief Commissioner to be an end in itself.[17] Safety of the person may be an end in itself. It is also an objective that sits behind other categories pleaded by the Chief Commissioner, such as community sources and police methodology, for example. There must be, as with each of the categories of interest raised by the Chief Commissioner, a solid basis in evidence for supposing that the interest persists and is at risk if the information is revealed. Ongoing investigations Prior to charge, the release of information relating to an ongoing investigation may have a number of adverse impacts contrary to the public interest. The Chief Commissioner relies on the following passage from Attorney‑General (NSW) v Stuart as illustrative of the potential impacts: if such information were disclosed prior to charges being laid (so that criminals would know what information the police have about them), they will be able to tailor their stories to facts which cannot be disputed, to organise their responses to questions and to arrange alibis. Harm may come or be threatened to prospective witnesses before being interviewed by the police, particularly in relation to inquiries about crimes of violence.[18] Relationships with third party agencies According to the affidavit material filed by the Chief Commissioner, Victoria Police engage in the exchange of criminal intelligence information with other law enforcement and investigatory agencies. Frequently, that information is shared on a confidential basis. Where the interest in protecting this information does not fall into the categories of ongoing investigations, police methodologies or safety of persons, the Chief Commissioner seeks to protect it on the basis of the public interest in protecting the confidence of other agencies in Victoria Police and the free flow of information that is fostered by that confidence. The balance of interests As the authorities make clear, public interest immunity is an exclusionary rule of evidence. It commences from the position that the information and/or document in question is relevant. I have outlined already the applicable threshold for relevance and proceed to balance the competing interests only in respect of the information passing that threshold. In Ryan v State of Victoria, the Court accepted that ‘[b]oth the common law and s 130 require two broad stages of analysis: first, the assessment of the character of the information (as ... relating to a matter of state), and secondly, a weighing or balancing exercise to assess the [competing] public interest[s]’.[19] The balance of interests to be conducted is one between the importance of the document or information to the accused in the context of the issues raised in the trial and the sensitivity of the information sought to be concealed, the risks associated with disclosure and the likelihood of those risks eventuating. The court undertaking the balance must be aware of those matters in issue and have a detailed understanding of the risks said to arise.[20] Further, ‘where there is no good reason to think that the disclosure of the identity of a police informer may be of substantial assistance to the defence, the balance is unlikely to favour disclosure.’[21] The first step is to consider whether there is a public interest to be protected. Next is the question as to what is the present and real risk to that public interest with the release of the information. The Chief Commissioner must establish the interest and the risk. This is then to be balanced against the assistance to the accused in being provided with the information. Assistance or substantial assistance is what will tip the balance in favour of release. Mere relevance will not suffice. I turn to consider the submissions of the parties. The Director of Public Prosecutions’ Position As already noted the Director of Public Prosecutions did not file any submissions in relation to the claim of public interest immunity made by the Chief Commissioner. The Issues for Defence The issues to be raised in this case were briefly summarised in the submissions of the accused but are also discernible from their applications to cross‑examine witnesses pursuant to s 198B of the Criminal Procedure Act. In those applications, the accused identify the issues informing the questions they would ask during the preliminary hearing of evidence. I have summarised those here along with their submissions. Mr Kheyali’s Position Counsel for Mr Kheyali nominated evidence from the Google Pixel phones and the evidence of Witness O and Witness R as the key pillars of the prosecution case against her client. Counsel articulated the concern in both oral and written submissions that the accused should be given the identity of the individuals associated with each of the Google Pixel phones used as a source of evidence by the prosecution. It is understood that this was to be addressed shortly after the hearing and consequently is resolved. In his s 198B applications seeking leave to cross examine Witness O and Witness R, Mr Kheyali seeks to test the witness’ evidence in respect of matters including the following: (a) The contents of their statements; (b) Experience within the criminal syndicate and associations; and (c) The circumstances leading to the making of their statements, any inducements and their motivations in doing so. Among the justifications given in the application to cross‑examine both witnesses is “[t]he credit of this witness and the reliability of his account is of central importance to the defence”. Information in the disclosure material going to topics for, and justification of, cross‑examination will therefore have particular relevance for Mr Kheyali. In his submissions, the Mr Kheyali describes the following as being material relevant to issues he seeks to raise and/or explore: (a) Details of all intelligence held by police regarding each witness, including the witness’ background, any criminally concerned behaviour police are aware of, their associates and any ongoing police investigations into them; (b) The status of any charges faced by either witness at the time their statements were made, charges laid after their statements were made or any pending charges against them subject to police investigation (whether those investigations are ongoing or not); (c) The circumstances surrounding their decision to make a statement to police, details of conversations had with police about making a statement and how arrangements were made for the statements to be provided; (d) Any inducements, promises or undertakings made by police to the witnesses in exchange for them making their statements; and (e) Any other information, currently withheld from the accused, relevant to the assessment of the witnesses’ credibility and/or reliability. Mr Abdalla’s Position In his s 198B applications to cross‑examine Witness O and Witness R, Mr Abdalla raises similar topics for questioning. I understand the reliability and credibility of these witnesses to be topics that counsel for Mr Abdalla will also want to explore. He also nominates the admissibility of aspects of evidence in the prosecution case as being justification for cross‑examination. In his submissions filed in relation to the public interest immunity claim, the accused Abdalla outlined both the relevant legal principle and provided what limited submissions he could in respect of the public interest immunity claims. He also identified the following as being currently in issue and relevant to defence: (a) The nature and extent (if any) of the accused in the Aschna syndicate; (b) The Accused’s involvement in the events of 4 August 2023; (c) Any admissions said to have been made by the Accused as to involvement in the offending; (d) The credibility and reliability of the prosecution witnesses, particularly Witness O and Witness R. Lastly, as identity of both offenders is squarely in issue in this case, legal representatives for the accused are interested in information received by investigators about suspects and other lines of enquiry. Consideration – Relevance and Public Interest Immunity The additional information on the defence issues in the case assisted firstly with an assessment of the relevance redactions in the disclosure material. It then assisted in undertaking the balance required in the assessment of the public interest immunity claims. Prior to the hearing of the claims on 11 June 2026 and 12 June 2026, I had read and familiarised myself with the disclosure materials such that I had identified where controversy lay about relevance or the balance of public interest. I had also read and considered the affidavit material relied upon by the Chief Commissioner. They have each been prepared by experienced police officers with knowledge of the investigation leading to the charge of the accused men. The Chief Commissioner conceded during the open hearing that the identities of Witness O and Witness R would be revealed/confirmed for the accused men. During closed session, counsel for the Chief Commissioner was questioned in respect of the formulation of relevance and its application to the disclosure materials. All of the enquiries in respect of relevance redactions resulted in clarification such that the redaction was accepted or a concession was made by the Chief Commissioner leading to the lifting of the redaction. Similarly, in respect of the categories of public interest immunity identified in submissions and affidavit material, questions in respect of the definition and justification resulted in clarification that is reflected in the summaries above. Enquiries in relation to one category resulted in the lifting of redactions relating to that category. Further enquiries about the information sitting behind public interest immunity redactions resulted in either clarification establishing justification or the redactions being lifted. I was assisted in my lines of enquiry with the Chief Commissioner by the material from the accused men and the evidence currently forming the hand‑up brief. I was otherwise satisfied on the evidence contained in the open and confidential affidavits relied upon by the Chief Commissioner of the interests he claimed and the risks associated with release of the information redacted and found that the balance favoured the retention of the remaining redactions. I was provided with a folder of materials that represented some of the proposed disclosure materials for the parties. It is my understanding that the disclosure materials that represent the Court’s conclusions on relevance and the Chief Commissioner’s public interest immunity claims upheld will be provided to the parties shortly. Common law principle on Legal Professional Privilege As already discussed at some length in respect of the public interest immunity claim made by the Chief Commissioner, the issues to be determined in respect of the documents arise as a result of his obligation of disclosure. They are not documents to be produced pursuant to a ‘disclosure requirement’ for the purposes of s 131A of the Evidence Act. And so, the common law, and not the Evidence Act, applies in respect of the legal profession privilege claim that he makes in respect of information contained in some of those documents. In his submissions of 29 May 2026, the Chief Commissioner states that the claim is straight forward and relies upon evidence contained in the open affidavits of Collyer of 29 May 2026 and Farrell of 15 May 2026. In the Farrell affidavit, it is deposed that the claims are asserted by any of the Chief Commissioner, the Director of Public Prosecutions or Witness O. The documents referred to in the Collyer affidavit contain claims of legal professional privilege made by Victoria Police and the Director of Public Prosecutions. Queries made during the hearing in closed session to properly understand the basis of a number of these claims resulted in concessions in respect of all but one. Although it was not explicit in the material, I understand that the remaining claim in issue to be one of advice privilege. The redaction in question is colour coded as a claim being made by Witness O in respect of advice received by them from senior counsel engaged for that purpose by Victoria Police. There is no additional information relevant to this claim given. It will be convenient to briefly recite principle in respect of a common law claim of legal advice privilege. The following is drawn from the judgment of Beach J in Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4): First ‘[t]he relevant issue is whether the communications were created or made for the dominant purpose of the applicants ... obtaining or being provided with legal advice ...” ‘Second, the applicants bear the onus of establishing the claims, including each factual element necessary to establish the requisite dominant purpose. In that respect, focused and specific evidence is required in respect of each communication, rather than mere generalised assertion’...’ There should be sufficient evidence which proves directly or by inference that the dominant purpose for the communication was for the relevant client to be given or to obtain legal advice. The communication also has to be confidential.’... ‘Third, the relevant time for ascertaining purpose is when the communication was made. If the communication was a written communication, the relevant time is when the document came into existence. If the communication was constituted by the forwarding of a copy document, the purpose for the creation of the copy document at the time that the copy was created is what is relevant.’ ‘Fourth, the relevant purpose may be either that of the author or initiator of the communication, or the person at whose request or under whose authority the communication was created or made. The circumstances will dictate the focus. ‘Fifth, the purpose is to be objectively ascertained. Evidence of the subjective intention of the author or person requesting the creation of the communication (document) is significant but not conclusive. Purpose can also be determined from the content of the document understood in its full context. ...’ ‘Sixth, it is not sufficient to show a substantial purpose or that the privileged purpose is only one of two or more purposes of equal weighting. The requisite purpose must predominate. It must be the paramount or most influential purpose. One practical test is to ask whether the communication would have been made (whether the document would have been brought into existence) irrespective of the obtaining of legal advice. If so, the communication (document) may not satisfy the dominant purpose test. Seventh, it may be that that the entirety of a document may be privileged. Alternatively, it may be that only part of a document meets the dominant purpose test. Eighth, a document may be privileged to the extent to which it records a privileged communication, even if the document itself would not satisfy the dominant purpose test.’[22] Consideration – Legal Professional Privilege The document in respect of which the claim of legal advice privilege is made is Document 4 in Schedule A to the Farrell affidavit. The description given in the schedule for Document 4 is ‘Victoria Police Issue Cover Sheet dated 15 January 2025’. Only a small portion of this document is sought to be excluded on the basis of legal privilege. It is clear that the Chief Commissioner bears the evidentiary onus in respect of this claim. I find significant difficulty in ascertaining an evidentiary basis for the claim. I have already described the submissions and evidence that I have to assess this claim. It is scant. The purportedly privileged information is contained in a Victoria Police document entitled ‘Issue Cover Sheet’ and sub headed ‘Request Budget Approval for Legal Assistance’. It is dated 15 January 2025 and identifies the author as Detective Sergeant Farrell. I do not understand Detective Sergeant Farrell to be legally qualified or practising. It is not a confidential document containing legal advice given to Victoria Police, nor is it a confidential document produced to secure legal advice for the maker of the document. It is an internal Victoria Police budget document. The apparent purpose of the document is to secure funding for legal representation for Witness O. Witness O is not a member of Victoria Police. The document does include the phrases ‘legal advice’ and ‘legal representation’ as it relates to Witness O. To the extent that this document records what that advice was, it is not clear from the document, nor is it explained in the affidavit material how Victoria Police have come by the advice given by Julian McMahon SC to Witness O. As it appears that it is this advice, given to Witness O, that is the subject of the claim, I am unable to understand how or why this is a claim of privilege made by Victoria Police, how Victoria Police came by this information, in what context and with what, if any, restrictions or conditions placed upon it. I am not satisfied on the evidence provided to me that the communication contained in the ‘Issue Cover Sheet’ is subject to legal professional privilege. Even were there to be an evidentiary basis upon which the claim might be made good, it appears that the advice given by Julian McMahon SC to Witness O that is concealed by the redaction has been shared with Victoria Police. These are circumstances which, without further explanation, would appear to give rise to a waiver of any privilege that may have attached to that advice. In the circumstances I do not uphold the claim of legal privilege in respect of Document 4, Schedule A ‘Victoria Police Issue Cover Sheet dated 15 January 2025’. Orders The orders of the Court will be: (a) Pursuant to an application made by the Chief Commissioner of Victoria Police to withhold information on the basis of public interest immunity, the Court is satisfied that the confidential material filed with the Court on 15 May 2026 and 29 May 2026 the subject of the claim, as revised during the hearing of that claim on 11 June 2026 and 12 June 2026, should not be disclosed due to the public interest in preserving the confidentiality of the said documents or parts thereof. (b) The claim of client legal professional privilege relating to Witness O made by the Chief Commissioner of Police in respect of Document 4 in Schedule A of the affidavit of Detective Sergeant Luke Brendan Farrell dated 15 May 2026 and described as ‘Victoria Police Issue Cover Sheet dated 15 January 2025’ is not upheld. (c) The confidential material filed with the Court annexed to the confidential affidavits (*Redacted) be removed from the Court’s electronic systems. The legal representatives for the Chief Commissioner of Victoria Police must retain a copy of that material and make it available to the Court upon request. --- [1] Roberts v The Queen [2020] VSCA 58; (2020) 60 VR 431, 444 [56] (Osborn and T Forrest JJA). [2] DPP v Paulino [2017] VSCA 38; (2017) 54 VR 109, [18] (Weinberg JA). [3] Evidence Act 2008, s 131A(2) (emphasis added). [4] [2021] VSC 678, [6]. [5] Explanatory Memorandum, Evidence Bill 2008 , 51. [6] [1999] HCA 67; (1999) 201 CLR 49. [7] Australian Law Reform Commission, Uniform Evidence Law (Report 102, December 2005) [14.7], [14.19]. [8] [2021] VSC 678. [9] S 415A and 416A was inserted into the Criminal Procedure Act 2009 by the Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Act 2022, with these provisions commencing on 15 February 2022, the date in which the amendment received Royal Assent. [10] DPP v Rider & Ong [2021] VSC 678, [6] citing Ryan v State of Victoria [2015] VSCA 353, [58] (Tate, Santamaria and Ferguson JJA). See also in Ryan v State of Victoria [2015] VSCA 353 [64] and [100]. [11] Some of the long‑standing leading authorities on the common law in this area are Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, 412–4 (Gibbs CJ), referring to Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 38–9 (Gibbs ACJ). [12] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 60 (Stephen J). [13] AB v CD [2017] VSCA 338, [45] (Ferguson CJ, Osborn and McLeish JJA). [14] R v Rankine [1986] QB 861, 865; D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171. [15] For example Alister v R [1984] HCA 85; (1984) 154 CLR 404; Cain v Glass (No 2) (1985) 3 NSWLR 230; Madafferi v The Queen [2021] VSCA 1; 287 A Crim R 380. [16] See Ryan v State of Victoria [2015] VSCA 353, [68]–[94] (Tate JA). [17] Jarvie v Magistrates’ Court of Victoria [1995] VicRp 5; [1995] 1 VR 84, 88 (Brooking J). [18] (1987) 34 NSWLR 667, 675 (Hunt CJ at CL). [19] Ryan v State of Victoria [2015] VSCA 353, [59] (Tate JA, with Santamaria and Ferguson JJA agreeing) quoting New South Wales v Public Transport Ticketing [2011] NSWCA 60, [42]–[43] (Allsop P, Hodgson JA, Sackville AJA agreeing at [118]–[119]). [20] State of Victoria v Brazel [2008] VSCA 37; (2008) 19 VR 553, 575 [68] (Maxwell P, Buchanan and Vincent JJA), as cited with approval in Madafferi v The Queen [2021] VSCA 1, [43] (Emerton, Weinberg and Osborn JJA). [21] Madafferi v The Queen [2021] VSCA 1, [40] (Emerton, Weinberg and Osborn JJA). [22] [2014] FCA 796, [28] – [35]; These principles can be found recited in various formulations in subsequent cases, see, for example, AWB Ltd v Cole (No 5) [2006] FCA 1234; 155 FCR 30 as adapted in Setka v Dalton (No 2) (Legal professional privilege) [2021] VSC 604. PRINT Print (pretty) Print (eco-friendly) DOWNLOAD RTF format (393 KB) Signed PDF/A format CITED BY LawCite records NoteUp references JOIN THE DISCUSSION Tweet this page Follow @AustLII on Twitter