Background
In May 2019, a Subway restaurant in Kings Park, Sydney was robbed. Detective Senior Constable Allan charged Terry Tsakirios with the offence. Eight months later, the Director of Public Prosecutions withdrew the charge following representations made on Tsakirios’s behalf. The appellant discovered that DSC Allan had failed to disclose information to the DPP regarding other persons of interest in the investigation—material that ultimately influenced the decision to withdraw.
Tsakirios sued the State of New South Wales for malicious prosecution, false imprisonment, and misfeasance in public office. His claim centred on DSC Allan’s failure to disclose the other suspects’ information, which he argued should have been revealed under section 15A of the Director of Public Prosecutions Act 1986 (NSW). The District Court dismissed his claims, and Tsakirios appealed on multiple grounds, including challenges to the adequacy of the primary judge’s reasons and the finding that DSC Allan lacked malice.
The Court’s Holding
The Court of Appeal dismissed the appeal, though it clarified important legal principles. On the law, the court upheld the appellant’s contention that section 15A imposes a “public duty” capable of engaging the tort of misfeasance in public office—contrary to the primary judge’s conclusion. The court further found that DSC Allan’s non-disclosure of the information about other persons of interest did constitute a breach of that public duty. However, because malice is an essential element of the tort and the court found no evidence that DSC Allan acted with malice (as opposed to unreasonably or negligently), the claim failed.
The court reaffirmed that the tort of misfeasance in public office requires: (1) a public officer exercising a public power, (2) in an invalid or unauthorised manner, (3) maliciously, and (4) causing loss or harm. The court clarified that it is not necessary for a claimant to establish that the officer owed them a duty individually; rather, what matters is whether the officer was acting in breach of a duty moderating the exercise of public power in the public interest. The court also addressed criticism of the primary judgment’s substantial adoption of the respondent’s submissions, holding that while wholesale copying without attribution is unwise, it does not constitute legal error if the judge independently brought his mind to the issues.
Key Takeaways
- Statutory duties of disclosure imposed on investigating officers in criminal prosecutions constitute “public duties” for purposes of the misfeasance tort, even though such duties may be of imperfect obligation.
- A breach of a public duty does not establish misfeasance in public office absent malice—careless or unreasonable non-disclosure is insufficient.
- The misfeasance tort does not require proof that the claimant was owed a duty individually or as a member of a class; the relevant duty is the one moderating the exercise of public power.
- On appeal by way of rehearing, a court may correct legal errors in the primary judgment while still dismissing the appeal if factual findings on other essential elements are upheld.
Why It Matters
This decision clarifies the law on misfeasance in public office in the criminal investigation context and affirms that investigating officers have legal accountability through the tort. However, it equally emphasises that the remedy is not available for mere negligence or poor judgment in disclosure; prosecutors and investigators must act with malice—understood as acting with knowledge that the exercise of power is unauthorised or with recklessness about whether it is—to incur tortious liability. The decision recognises that section 15A, introduced to establish a general duty of disclosure on police officers, serves a public interest in fair trials and efficient criminal proceedings, yet maintains the traditional common law requirement that misfeasance be a deliberate wrong.