The New South Wales Criminal Court of Appeal (NSWCCA) ordered that Acting NSW District Court Judge James Bennett be removed from presiding over the trial of Michael Bechara, after the defendant appealed the judge’s decision to refusal his recusal order, which is an order that the judge remove himself from the case, based on the fact he is currently being scrutinised over historic police misconduct allegations.
The 3 June 2026 decision by a three-justice bench of the NSWCCA relates to an ongoing inquiry into the 1981 prosecution of the so-called “Croatian Six”, who were convicted over a bombing conspiracy. Back then, Bennett was a detective senior constable involved in the inquiry into the six men, and he’s accused of fabricating evidence and turning a blind eye to the bashing of one.
Bechara is facing trial in the NSW District Court over 16 serious drug supply charges that allegedly occurred between November 2022 and February 2023 and involved commercial quantities and large commercial quantities of various amphetamines and GHB. The defendant was arrested by NSW police during a ‘controlled operation’ that involved an undercover police operative and a civilian participant.
The defendant appealed the judge’s refusal to disqualify him because he’s also applied to have his trial permanently stayed, or brought to a close, or, in the alternative, he is calling for evidence to be withdrawn under a provision of the Evidence Act 1995 (NSW), because he’s further putting to the court that the civilian involved in the undercover operation broke the law to facilitate his arrest.
The points Bechara is raising about the way in which the controlled operation was handled include ‘fraudulent inducement’ on the part of the civilian, and it could involve allegations of misconduct about the investigation, and an allegation of fabricating evidence may be cited, and all of these points tended to raise a potential bias on the part of the judge if the case were to proceed.
Potentially suspect drug charges
Fifteen of the charges Bechara is facing involve the offence of drug supply, contrary to section 25 of the Drug Misuse and Trafficking Act 1985 (NSW). Some are for ‘commercial’ and ‘large commercial’ supply, which carry up to 20 years and life imprisonment respectively. And he’s also facing a count of ongoing supply under section 25A of the Act, which involves supply of a drug three times in 30 days.
Bechara is calling for the charges to be dropped, or alternatively, that the evidence underpinning the charges be excluded, as per section 138 of the Evidence Act, which maintains that if evidence is obtained unlawfully or as a consequence of illegal actions, then it should not be admitted “unless the desirability of admitting the evidence outweighs the undesirability of admitting” it.
The defendant maintains that the civilian participant in the undercover operation offered to introduce him to a “legitimate” buyer, who turned out to be the undercover cop, if Bechara first slept with him. The defendant considers this constituted ‘fraudulent inducement’, and therefore, amounted to sexual assault under section 61I of the Crimes Act 1900 (NSW).
The Croation Six
Bechara sought recusal on his first day of trial, and the judge refused to do so, providing written reasons on 27 March 2026, as Bennett is being investigated as part of a broader inquiry being conducted by Acting Supreme Court Justice Robert Hulme into the validity and circumstances of the 1981 conspiracy to bomb and possession of explosives convictions relating the Croation Six.
The Croation Six were Croation Australian men sentenced to 15 years prison time in 1981, over allegedly planning to bomb several sites in Sydney, including a Yugoslavian travel agent and a theatre in Newtown. The NSW Supreme Court ordered a review of the case after ASIO released classified documents relating to it in 2022.
And the Hulme inquiry report has not been released, and it is not known when it will be. But Judge Bennett did testify during the inquiry, and he was cross-examined.
The Ebner test
The High Court of Australia’s 2000 case Ebner versus Official Trustee in Bankruptcy established the modern test for dismissing a judge due to apprehended bias.
The Ebner test doesn’t determine whether a direct bias exists, but it rather ascertains whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. And this must be based the assessment of a “logical connection” between the judge’s circumstances and that of the trial.
Bechara’s argument was that when the question of a stay or the exclusion of evidence goes before the court on 21 September 2026, if Bennett remained the judicial officer, he would have to decide upon “reliability and credibility” of the undercover cop and the civilian, and consider whether the undercover officer has engaged in police misconduct and if the civilian, partook in illegal conduct.
The primary factor that was relied upon to make this point was that Bennett continues to face an allegation of serious misconduct as a police officer and further that he lied under oath. The judge is also aware that if the finding is made against him, he will no longer be able to continue working as a judicial officer, and this may all be playing on his mind as he considers the Bechara case.
NSWCCA Justice Richard McHugh then turned his mind to whether it would be reasonable to consider Judge Bennett might be prone to apprehended bias, when usually professional judges are thought to be beyond such reproach. However, in this case, the allegations are fresh, especially in respect to Bennett’s recent testimony to the inquiry potentially being false.
His Honour suggested in this case that the “fair-minded lay observer” might reasonably consider even “the most robust of professional judges” might not be impartial in these circumstances, even as actions that are central to each case – the fabrication of evidence and condoning a suspect’s bashing as compared to fraudulently induced sexual assault – differ “significantly”.
The Ebner test, or the ‘double might’ test, relies on the potential that the fair-minded lay observer might find apprehended bias given the circumstances but at the same time, they might not. And this doesn’t mean that any allegation of apprehended bias holds if raised, because the observer understands “that professional judges are well capable of putting such matters from their minds”.
“Applying the Ebner test to the facts of this case, it was not reasonably open to conclude that no fair-minded lay observer might reasonably conclude that the primary judge might not bring an impartial mind to the questions before him,” Justice McHugh added.
“For the reasons given above, his Honour should have disqualified himself at the time the application was determined. It follows that, if leave to appeal were granted, the appeal would be allowed.”
As this initial ground was made out, Bechara’s alternative point didn’t have to be assessed. But his Honour did explain that as it relied on the potential of Bennett being found guilty of misconduct, the Ebner test applied here would also find that due to the potential that the judge might be influenced by his own experience of misconduct and this would again result in the need for disqualification.
The orders of the court
Justice McHugh underscored that when granting leave to appeal in respect of criminal proceedings and an interlocutory decision, which is a determination made before a trial has begun, caution should be exercised. However, the reason for treading carefully was “substantially reduced” in this case, as no substantive decisions had been made as yet.
On 3 June 2026, his Honour ordered that leave to appeal be granted and that Acting Judge Bennett be disqualified from Bechara’s case and that it be remitted to the NSW District Court, so it can be heard by any other judge.
NSWCCA Justices Deborah Sweeney and James Emmett both agreed with their colleague’s findings.
