AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 3 June 2026

Bechara v Rex

[2026] NSWCCA 71

DrugsPublic order & justice offences

Citation: Bechara v Rex [2026] NSWCCA 71
Court: Court of Criminal Appeal (New South Wales)
Date: 3 June 2026
Judge(s): McHugh JA (at [1]); Sweeney J (at [75]); Emmett J (at [76])

Background

The applicant faced multiple drug supply charges in the District Court, arising from alleged sales of prohibited drugs to an undercover police operative. A civilian participant had introduced the applicant to the operative as part of a controlled operation authorised under the Law Enforcement (Controlled Operations) Act 1997 (NSW).

Before trial, the applicant sought a permanent stay of proceedings or, alternatively, exclusion of evidence under s 138 of the Evidence Act 1995 (NSW). The central grounds were alleged misconduct by police and by the civilian participant, including claims that the civilian participant had fraudulently induced the applicant's involvement. On the first day of the stay application hearing, the applicant applied for the primary judge to recuse himself on the ground of apprehended bias.

The basis for the recusal application was that the primary judge, a former Detective Senior Constable, was the subject of unresolved and serious allegations in an ongoing judicial inquiry (conducted by Hulme AJ under s 79 of the Crimes (Appeal and Review) Act 2001 (NSW)) into the decades-old convictions of men known as the Croatian Six. A petitioner at the inquiry had alleged the primary judge fabricated evidence, was aware of physical mistreatment of a suspect, and lied on oath during the inquiry. The inquiry's report had not yet been delivered. The primary judge declined to recuse himself, and the applicant appealed that refusal.

  • Whether leave to appeal should be granted under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) against the interlocutory refusal to recuse.
  • Whether a fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the stay and evidence exclusion application, given the unresolved allegations of police misconduct against the judge in a separate judicial inquiry.
  • Whether it was necessary or appropriate for the Court to determine whether the primary judge might in fact have engaged in the alleged misconduct (the "alternative case").

Decision

The Court of Criminal Appeal (McHugh JA, with Sweeney and Emmett JJ agreeing) granted leave to appeal and allowed the appeal. McHugh JA emphasised at the outset that the outcome was in no way a reflection on the primary judge and should not be understood as lending credence to the allegations against him.

On the question of leave, the Court acknowledged the strong policy reasons for a strict approach to interlocutory appeals in criminal proceedings. Nevertheless, the particular circumstances warranted intervention in the interests of justice.

On the merits, the Court applied the two-step Ebner test: first, identifying the factor said to give rise to a departure from impartial decision-making; and second, assessing whether a fair-minded lay observer might reasonably apprehend bias. The relevant factor was that the primary judge was facing live, unresolved, and extremely serious allegations of police misconduct (including fabrication of evidence and lying on oath) in a judicial inquiry where he had been cross-examined and his denials were under attack. The Court found a logical connection between that factor and the apprehended deviation from impartiality: the applicant's own case required the judge to assess allegations of police misconduct, the reliability and credibility of police officers, and possibly even allegations of evidence fabrication.

A fair-minded lay observer, the Court concluded, might reasonably apprehend that even the most robust professional judge, while the subject of such current and serious unresolved allegations, might not bring an impartial mind to the resolution of those questions. Because the primary case was established on this basis, the Court held it unnecessary and undesirable to determine the alternative case (namely, whether the judge might in fact have engaged in misconduct).

Orders Made

  • Leave to appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) was granted.
  • The appeal was allowed.
  • The primary judge's refusal to recuse himself was set aside. (The stay/s 138 application was listed before the primary judge for 21 September 2026, implying it would need to be heard by a different judge.)

Key Takeaways

  • Where a judicial officer faces live, unresolved allegations of serious misconduct in a separate proceeding, the existence of those allegations alone (irrespective of their truth) can ground a reasonable apprehension of bias, particularly where the issues in the case before the judge closely mirror the nature of those allegations.
  • The Ebner test requires identification of a specific factor, articulation of its logical connection to a feared departure from impartiality, and assessment of reasonableness from the perspective of a fair-minded lay observer. The Court of Criminal Appeal confirmed this framework applies where the relevant factor is the judge's own exposure to unresolved allegations.
  • No finding of actual misconduct was necessary or appropriate. The Court expressly stated its decision carried no adverse reflection on the primary judge and should not be read as lending credence to the allegations against him.
  • Notwithstanding the strong policy favouring restraint in granting leave for interlocutory appeals in criminal matters under s 5F(3)(a), exceptional circumstances (here, the singular nature of the bias ground) can justify the Court's intervention before trial.
  • The currency and seriousness of the unresolved allegations were significant factors. A fair-minded lay observer might expect even a professional judge to be "highly sensitive" to external allegations of police misconduct while being asked to adjudicate on analogous allegations in the case before them.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Crimes (Appeal and Review) Act 2001 (NSW), s 79
- Criminal Appeal Act 1912 (NSW), s 5F
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A
- Evidence Act 1995 (NSW), s 138
- Law Enforcement (Controlled Operations) Act 1997 (NSW), Pt 2

Key Cases:
- Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
- Director of Public Prosecutions v Smith (2024) 419 ALR 212; [2024] HCA 32
- Maules Creek Coal Pty Ltd v Environment Protection Authority (2023) 112 NSWLR 507; [2023] NSWCCA 275
- Koschier v R (2024) 113 NSWLR 491; [2024] NSWCCA 24
- Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17
- GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32
- QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15
- Rex v Bechara [2026] NSWDC 66
- Sunshine Loans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8